Why Government Ethics Programs Have Limited Subject Matter Jurisdiction

An individual who was asking me government ethics questions
recently became angry when I said that codes of conduct that go
beyond conflicts of interest are outside of my field. He said that
those who engage in bad conduct will probably also engage in bad
ethics. He referred to my exclusive focus on conflicts of interest
as "compartmentalization."<br>
<br>
This reminded me how important it is to make it clear why government
ethics programs deal exclusively with conflicts of interests and
misuse of government office (and sometimes lobbying, campaign finance, and transparency). The reason I emphasized to the individual was an
operative difference, that is, a difference in how the kinds of
conduct are dealt with. A conflicts of interest program is based
primarily on training, advice, and disclosure. These are much less
relevant to officials who make misrepresentations, take drugs, engage in sexual
harassment, steal money, have affairs, let their anger get the best
of them, etc. No one is going to disclose that they have stolen
money, no one can be trained not to have affairs, and no one is
going to seek advice about whether to misrepresent facts. This is an important reason why these
different kinds of misconduct must be dealt with differently, outside a
government ethics program.<br>
<br>

Another way to describe this difference is to note that, while
enforcement is the lowest priority in a government ethics
program, it is the top priority in a program to regulate these other
kinds of misconduct. Since
these other kinds of misconduct are more frequent than the
irresponsible handling of conflict
situations, including them in a government ethics program would
shift an ethics commission’s priority to enforcement, greatly
increase its
cost, and turns an ethics program into a series of personal and/or
partisan squabbles.<br>
<br>
<b>Personal vs. Institutional Misconduct</b><br>
Equally important is the fact that these other kinds of conduct are
more personal in nature. As Dennis Thompson said in his book <i><a href="http://books.google.com/books?id=KZN91jHlSB0C&printsec=frontcover&dq=th…; target="”_blank”">Ethics
in Congress</a></i> (Brookings Institution Press, 1995),
government ethics "serves to guide the actions of individuals, but
only in their
institutional roles and only insofar as necessary for the good of
the institution.
[Government ethics] uses personal ethics only as a means — not even
the most
important means — to the end of institutional integrity."<br>
<br>
But there is misconduct that involves the government official's
institutional role that is still not covered by government ethics
programs. The reason is that this conduct is dealt with in
other ways. Stealing money and taking bribes are dealt with by the
criminal justice system. Sexual harassment is dealt with either by
the human resources department or by the criminal justice system.
Incivility should be dealt with by the board or
agency.<br>
<br>
Misrepresentation by officials is the one kind of misconduct that is institutional, not
handled by any other program, and yet still should not be under the jurisdiction of a
government ethics program. Besides the fact that training, advice,
and disclosure are not appropriate to misrepresentation, one can argue for hours
over whether an official made a lie, misrepresentation, misstatement, exaggeration, or
whatever. One cannot argue for hours over whether an official helped his
sister get a no-bid contract.<br>
<br>
In addition, misrepresentation happens so
often that enforcing against it can turn an ethics program into a
circus of accusations and counter-accusations.<br>
<br>
These are some of the reasons that government ethics programs have
limited jurisdiction. The word "ethics" is unfortunate. It suggests
all sorts of personal misconduct. But government ethics needs to be
limited to only those kinds of conduct that involve and reflect upon
the government institution, are subject to training, advice, and
disclosure, and would not overwhelm the program with enforcement
matters that are very difficult to resolve and leave few resources
left for training, advice, and oversight of disclosure. This leaves conflicts of interest and, in many jurisdictions, lobbying, campaign finance, and transparency. That's more than enough.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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