Two Explanations of Why Ethics Laws Provide Only Minimum Standards

There is little in government ethics that is more important than
recognizing that, unlike other laws, an ethics code provides only
minimum standards. That is, a public servant is required to fulfill the
letter of an ethics code, but this is just the start. In this way,
ethics laws are not like ordinary laws. Why and in what way? Here are two different
responses.<br>
<br>

<b>Private Interest vs. Public Interest</b><br>
An ordinary law is the government (that is, the community)
regulating citizens. An individual is expected to act in his or her
own interest. An individual or company need only follow what is
set forth by the government. If something isn't covered, it is okay. If
someone finds a loophole, the government is supposed to get rid of it.
Until it does, the loophole is legal, even if it may not be ethical to
take advantage of it. <br>
<br>
An ethics law is the government (that is, the community) regulating
those who serve the community in the government. Unlike ordinary
individuals, those who agree to
serve the community
are not expected to act in their own interest, they are not expected to
use their position to help themselves. In other words, they have a
fiduciary duty to the community. If they
find a loophole in an ethics law, they are supposed to get rid of the
loophole and, until they do, not take advantage of it. If they take
advantage of it, even
if their conduct is legal, it is unethical. And public servants have a
special duty not to act unethically.<br>
<br>
An ethics law is a law for a very special subsection of the
community, and it provides only a minimum standard, that is, guidance
toward
acting in the public interest.<br>
<br>
<b>Clarity of Guidance</b><br>
Ordinary laws are complex. They are not meant to guide, but to limit
and define. Everyone knows it's wrong to kill people, but
criminal laws divide killing into a number of different sorts. No one
checks homicide laws to help them decide whether or not to kill someone.<br>
<br>
People do check tax laws before they make business decisions, but they
are so complex that an accountant is required. However, since business
is involved, it is worth hiring an expert to figure out what you can
and cannot do.<br>
<br>
Ethics laws are supposed to provide guidance to public servants before
the fact and without the need to consult an expert, except in
especially difficult circumstances. You are supposed to check the
ethics law before you get involved in a matter where your brother holds
an interest. And you are supposed to understand what the law says. If
the language isn't clear and relatively simple, it will not provide the
necessary guidance to non-lawyer public servants.<br>
<br>
But a clear, simple law cannot provide the answer to every situation.
An ethics law cannot look anything like a tax law. That is why there
are standards that go beyond ethics provisions. The principal extralegal standard
is appearance of impropriety. Clear and simply:  if it wouldn't
seem right to the average citizen, if you wouldn't want your mother or
your child to read about it on the front page or in a blog, don't do it.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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