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The Public Sea and Local Government Ethics Jurisdiction
Monday, March 4th, 2013
Robert Wechsler
Most of George Frederickson's lecture, "Searching for Virtue in the Public Life: Revisiting the Vulgar Ethics Thesis," involves what he calls "the modern extended state," the "vast public
sea" in which governments float. This public sea includes
entities with various "shades of publicness": nonprofit and
professional organizations, contractors and developers, lobbying
firms, political parties, unions (public, construction, and others),
and watchdog groups, as well as single-purpose jurisdictions
(school, water, transit, and sewer districts and authorities),
public-private organizations of all sorts, charter schools,
utilities and other public monopolies, tribes, and numerous
quasi-governmental agencies.
These entities are involved in the governance of our communities, enter into contracts or take grants from our local governments, and take managerial and service-delivery functions out of the hands of civil servants. The result, in terms of government ethics, is the removal of patronage, nepotism, embezzlement, and other sorts of misuse of office out of government and into these other entities.
These entities are generally exempt from government ethics laws, and their officers and employees do not receive ethics training or advice and are not required to make disclosures. This huge hole in government ethics programs is expanding at the same time as the effects of transparency laws are shrinking.
The result is that the temptations toward and opportunities for ethical misconduct, and for getting away with it, are growing in number, and fiduciary duties are becoming dispersed and watered down.
Frederickson says that "the rise of the modern extended state is the dominant feature of our public life and of contemporary public administration." And yet it is not at all the dominant feature of either administrative or government ethics. This is a mistake.
There are ways for a government ethics program to embrace the extended state, in such a way as to limit the opportunities for ethical misconduct and to inculcate in those who work in the public sea the same sort of idea of fiduciary duty that the public administration profession has inculcated in administrators.
The way to do this is (1) to give ethics programs jurisdiction over any person or entity that seeks or obtains special benefits from a government or acts on behalf of a government, under contract with the government, under the government's supervision, or with a board whose members are appointed by a government; (2) to require that all these individuals and at least all the managers of these entities receive ethics training and make disclosures of their relationships with officials, their families, and their businesses and business associates; and (3) to provide ethics advice to all of these individuals and entities.
The best local government ethics programs do at least some of this. But when even government agencies fight being under a government ethics program's jurisdiction, it is hard to get others to accept this oversight. Local officials need to recognize that a government ethics program cannot effectively prevent, discover, or enforce against ethical misconduct without the full involvement of everyone who acts for the community, whether government, district, authority, quasi-government, public-private, contractor, grantee, or permittee.
It needs to be all or nothing, to be effective, to be fair, and to deal with government activities as they are seen by the public, not as they may exist in law.
A government ethics program should not distinguish, in its jurisdictional reach, in any way that the public would not distinguish. The public doesn't know or care whether the people who pick up their garbage, run their senior center, or provide their water is the local government or not. These are services provided by or for the government or with the government's oversight. But whichever way things are done, it is the local government that decides (or the state in the name of local governments, since local governments are, after all, state entities, but most people don't realize that, either).
Although along with administrative ethics professionals, I stress the importance of creating a healthy ethics environment, the health of the ethics environment within a government organization becomes less valuable as government functions are accomplished outside of government, strictly defined. This increases the importance of "vulgar ethics," which has little concern with environments or leadership, but rather focuses on dealing responsibly with conflicts and preventing ethical misconduct through training, advice, disclosure, and regulation.
For more on this topic, check out the following City Ethics blog posts:
Contracting: A Growing Ethics Problem in the Age of Privatization
Privatization and Transparency
A Good Example of Problems That Can Arise from Privatization
Robert Wechsler
Director of Research-Retired, City Ethics
---
These entities are involved in the governance of our communities, enter into contracts or take grants from our local governments, and take managerial and service-delivery functions out of the hands of civil servants. The result, in terms of government ethics, is the removal of patronage, nepotism, embezzlement, and other sorts of misuse of office out of government and into these other entities.
These entities are generally exempt from government ethics laws, and their officers and employees do not receive ethics training or advice and are not required to make disclosures. This huge hole in government ethics programs is expanding at the same time as the effects of transparency laws are shrinking.
The result is that the temptations toward and opportunities for ethical misconduct, and for getting away with it, are growing in number, and fiduciary duties are becoming dispersed and watered down.
Frederickson says that "the rise of the modern extended state is the dominant feature of our public life and of contemporary public administration." And yet it is not at all the dominant feature of either administrative or government ethics. This is a mistake.
There are ways for a government ethics program to embrace the extended state, in such a way as to limit the opportunities for ethical misconduct and to inculcate in those who work in the public sea the same sort of idea of fiduciary duty that the public administration profession has inculcated in administrators.
The way to do this is (1) to give ethics programs jurisdiction over any person or entity that seeks or obtains special benefits from a government or acts on behalf of a government, under contract with the government, under the government's supervision, or with a board whose members are appointed by a government; (2) to require that all these individuals and at least all the managers of these entities receive ethics training and make disclosures of their relationships with officials, their families, and their businesses and business associates; and (3) to provide ethics advice to all of these individuals and entities.
The best local government ethics programs do at least some of this. But when even government agencies fight being under a government ethics program's jurisdiction, it is hard to get others to accept this oversight. Local officials need to recognize that a government ethics program cannot effectively prevent, discover, or enforce against ethical misconduct without the full involvement of everyone who acts for the community, whether government, district, authority, quasi-government, public-private, contractor, grantee, or permittee.
It needs to be all or nothing, to be effective, to be fair, and to deal with government activities as they are seen by the public, not as they may exist in law.
A government ethics program should not distinguish, in its jurisdictional reach, in any way that the public would not distinguish. The public doesn't know or care whether the people who pick up their garbage, run their senior center, or provide their water is the local government or not. These are services provided by or for the government or with the government's oversight. But whichever way things are done, it is the local government that decides (or the state in the name of local governments, since local governments are, after all, state entities, but most people don't realize that, either).
Although along with administrative ethics professionals, I stress the importance of creating a healthy ethics environment, the health of the ethics environment within a government organization becomes less valuable as government functions are accomplished outside of government, strictly defined. This increases the importance of "vulgar ethics," which has little concern with environments or leadership, but rather focuses on dealing responsibly with conflicts and preventing ethical misconduct through training, advice, disclosure, and regulation.
For more on this topic, check out the following City Ethics blog posts:
Contracting: A Growing Ethics Problem in the Age of Privatization
Privatization and Transparency
A Good Example of Problems That Can Arise from Privatization
Robert Wechsler
Director of Research-Retired, City Ethics
---
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