The New ASPA Code of Ethics

Anonymous

Thu, 08/29/2013 - 05:51

Whistleblowers

It came to my attention in an interview with Professor James
Svara, for a paper I am writing for the journal Public Integrity,
that in March 2013, the American Society for Public
Administration (ASPA) made substantial — sometimes beneficial, sometimes
harmful, sometimes baffling — changes to its Code of Ethics (the
revised code is attached; see below). This post will look at the
changes that involve conflicts of interest.

Personal Interests 
The provision "Subordinate institutional loyalties to the public
good." has been changed by adding that "personal interests" should
also be subordinated to the public good. It is valuable to recognize
that personal interests are just as problematic as institutional
loyalties with respect to undermining the public interest. 
 
However, this is to some extent itself undermined by the change to the
principle under which this provision (known as a "practice")
appears. Added to the principle were the following words, "put
service to the public above service to oneself." This makes it
appear that by "personal interests," the code means only what would
benefit oneself. Personal interests go far beyond this, including
actions that would benefit anyone who has a special relationship with an official as
well as actions that may benefit oneself indirectly or indefinitely. 
 
Misuse of Office 
The new provision, "Guard against using public position for personal
gain or to advance personal or private 
interests," is oddly worded. It's good to see the language of "gain"
(although I prefer "benefit") rather than "interest." But it is
immediately followed by the language of "interest," without any
guidance about how they differ in practice. Similarly, what is the
difference between "personal" and "private" interests? And whose
gain or interests are intended? The official's alone, those with
whom the official has a special relationship, or anyone's? 
 
Finally, what does it mean to "guard against" the misuse of public
position? Does this mean to guard the public against one's own
misuse of position? If so, this is an odd way to put it. This is the
right idea. But it would be nice if it were made clear that the best
way to guard the public against one's misuse of office is to seek
professional ethics advice because, as the code recognizes elsewhere, there are
often strong pressures on one to misuse one's office or let others
do so, and also because every individual has blind spots when it
comes to situations that may benefit themselves or others who are
special to them. 
 
Reporting Ethical Misconduct 
Most government employees lack the authority and opportunity to deal
irresponsibly with conflicts of interest, beyond the misuse of
government property. Their most important role in a government
ethics program is to report ethical misconduct they are aware of,
usually misconduct by their superiors or by elected and appointed
officials. Employees know what's going on, but they take a risk
reporting it and reporting is highly discouraged in many ethics
environments. 
 
This is why it is great to see the ASPA adding a new provision on
reporting ethical misconduct. Here it is:<blockquote>

Seek to correct instances of wrongdoing or report them to superiors.
If remedies cannot be assured by reporting wrongdoing internally,
seek external sources or agencies for review and action.</blockquote>

This appears to derive from lawyer's Rules of Professional Conduct or what is common in corporations:
report misconduct up the chain of command, and only report it out of the
organization if nothing is done. The problem with this is that it
does not recognize the existence of government ethics programs.
Therefore, it gives no hint whether they are considered internal or
external. They are certainly external to bureaucratic channels, but
they are not external to the government itself. 
 
It is very hard for an employee to approach a superior whom he
believes is involved in, or aware of and silent about, an instance
of ethical misconduct. It is much easier to contact an ethics
officer or call a hotline. Especially when an ethics code requires
officials and employees to report misconduct, which is a best
practice, this should not be countered by an ASPA rule that says
otherwise. The existence of ethics programs and duties to report
misconduct should be acknowledged by this provision. 
 
Resisting Pressures 
The new provision, "Resist political, organizational, and personal
pressures to compromise ethical integrity
and principles and support others who are subject to these
pressures," is a valuable one. It acknowledges the pressures that
make it so difficult for individuals in any organization, but
especially in one with an unhealthy ethics environment, to act
ethically, especially in the discussion, prevention, and reporting
of ethical misconduct. It is especially good to see the recognition
of how important it is to support others subject to the same
pressures, especially one's subordinates. 
 
Encouraging the Adoption of Ethics Codes 
It is good that the ASPA has encouraged its members to seek the
adoption and review of ethics codes. My one quibble with this is
that it would have been better to encourage the adoption of ethics
programs, since codes without training, advice, disclosure, and
enforcement cannot be nearly as effective. 
 
The new version of this provision is not an improvement:<blockquote>

Encourage organizations to adopt, distribute, and periodically
review a code of ethics as a living document that applies principles
of this code and other relevant codes to the specific mission and
conditions of the organization.</blockquote>

Most of the principles of the ASPA code, although highly valuable,
are not relevant to what is called a "code of ethics" by government
organizations. Therefore, the new language effectively calls for a
completely different kind of code than those that currently exist.
The ASPA appears to be calling for a fundamental change in
government ethics programs. 
 
In addition, the new language emphasizes "the specific mission and
conditions" of each organization, without providing a hint of what
this means. Does this mean that a big city has a different mission
and different conditions than a town? Does this mean that southern
cities or diverse cities have a different mission and different
conditions than northern cities or less diverse cities? Or does it
mean that a city has a different mission and different conditions
than a transit authority? And if so, how would this affect an ethics
program? Would a diverse city require more or less disclosure? Would
a hotline be inappropriate in the east, but just right for the west? 
 
The most important factor that differentiates local ethics programs is state law. Beyond this, the two biggest differences in governments of the same type (local,
state) are resources and the frequency of conflicts. Conflicts are
more frequent in small towns, but these towns have fewer resources
for the creation of an effective ethics program. But these towns
have the choice to join together in a countywide program such as
that in Palm Beach County, FL, or in a regional program, to cut
costs and allow for an ethics commission, with staff, that will be truly independent. 
 
But the ASPA is not really talking here about conflicts. It's
talking about everything. It envisions a completely different kind
of ethics code than those that exist. It is really talking about
what are referred to commonly referred to as "codes of conduct." But it doesn't want to
acknowledge the real world, where "ethics codes" involve conflicts of
interest and, when they go beyond that, run into serious enforcement
issues. 
 
Accountability 
The ASPA code has another provision that encourages its members to
create an ethics code or program, but this one speaks in terms of
accountability, implying more emphasis on enforcement than the
provision on adopting an ethics code. 
 
This provision used to read, "Establish procedures that promote
ethical behavior and hold individuals and organizations accountable
for their conduct." In a surprising move, the new version scraps the
part about promoting ethical behavior, replacing it with "and
support these procedures with clear reporting of activities and
accomplishments." 
 
Administrative ethicists have long criticized conflicts of interest
codes for their negativity. The idea of promoting ethical behavior
emphasizes a more positive approach. I think it's valuable to have
both the positive and the negative. I don't see why the positive
phrase was scrapped. 
 
The new phrase baffles me. It speaks of reporting, but doesn't say what
needs to be reported. In fact, without the part about "ethical
behavior," this provision doesn't even seem to be about ethics
anymore, only about accountability. Perhaps that's the point. The
provision is now about transparency, it appears. But there's already a lot in
the code about transparency. I just don't understand this new
provision. I hope administrators will. 
 
Disclosure and Withdrawal 
To the old provision, "Zealously guard against conflict of interest
or its appearance," has been added the sentence, "Disclose any
interests that may affect objectivity in making decisions and recuse
oneself from participation in those decisions." 
 
With respect to the old provision, I once again think that "guard"
is not the right word. In fact, even moreso. There is nothing wrong
with having pre-existing conflicts of interest. A procurement
official is most likely going to have a relative whose company bids
on a contract. This cannot be guarded against. However, it can, and
should, be dealt with responsibly. 
 
This is where the new part of the provision comes in. It should not
have been added to the old provision. It should have replaced it.
The important thing, with respect to a pre-existing conflicting
interest, is to disclose it and withdraw from participation in any
matter that may affect that interest ("withdraw" is preferable to
"recuse," because "recuse" is a judicial term that means nothing to
most people and is too often treated as being limited to voting). 
 
Most problematic in the new part of the provision is defining a
conflicting interest as one "that may affect objectivity in making
decisions." No one believes that a conflicting interest may affect
her objectivity in making a decision. In any event, this way of
looking at conflict situations provides no guidance, especially when
it comes to individuals with whom an official has a special
relationship. 
 
In addition, there is no guidance here with respect to the creation
of conflicting interest by, for example, accepting a gift. These
should be "guarded against," but no one thinks of them as interests.
They are benefits, received by oneself or by someone with whom one
has a special relationship. 
 
Nothing is said in this provision about when disclosure should occur. There is no
mention of annual disclosure, and there is no mention of when a conflict should be disclosed and withdrawal occur. 
 
And, finally, withdrawal is defined as only involving decisions, not
the influence of decisions or the many steps that lead up to a
decision. 
 
These last two problems come together in the following
question: Should the procurement official work on
specifications for a contract he has reason to believe his sister
will be bidding on? Should he wait until she actually makes a bid before he withdraws?
Should he have any communications with the bid committee or with
anyone who is involved in making decisions with respect to the
contract? 
 
It's great that the ASPA is finally acknowledging the importance of
disclosure and withdrawal, but this provision should be considered only a
preliminary attempt to deal with these issues that are so central to dealing responsibly with conflicts. The ASPA can do much
better. 
 
Favoritism 
An old provision about acting without partisanship was expanded to
include acting without favoritism. It is valuable to remind administrators
that partisanship, although the principal sort of favoritism that
has fueled the move toward nonpartisan local government, is not the
only kind of favoritism. Although this term is vague, it is so
unspecific that it appears to be less guidance than a reminder of the inappropriateness of favoritism. 
 
Confidential Information 
A new provision was added that requires administrators to "Respect
and safeguard protected and confidential information." There are two
problems with this provision. One is that without defining
"confidential information," this could be considered any information
that the administrator, elected officials, or a government attorney
choose to consider confidential, even if it should not be
confidential, that is, even when it involves hiding from the public
information that is legally public or that could legally be
considered confidential, but is being withheld not for legal
reasons, but rather to hide information or activity from the public.
This is especially true of what occurs in executive meetings that
deal with matters that should have been dealt with in public
meetings, but are shoehorned into the rule due to the presence of an attorney or the discussion of litigation. 
 
It is difficult, in practice, to square this new provision with the
old (and still current) provision, "Recognize and support the public's right to know the
public's business." Where does "the public's business" end and
"confidential information" begin? 
 
Dissent 
One minor, but interesting change relates to the consolidation of
the code's two dissent provisions. In doing so, the word
"legitimate" before "dissent" was dropped. This is good, since what
may appear to a supervisor to be illegitimate dissent may be very
legitimate indeed. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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