Restorative Justice in Government Ethics

Anonymous

Thu, 01/10/2013 - 11:59

Complaints/ Investigations/Hearings

Government ethics proceedings are usually not very satisfying for
those involved. Individuals rarely get to tell the entire story from
their point of view. Nor do they profit from hearing how others saw the situation or experienced the events. The format for ethics proceedings is
similar to the criminal justice system, with charges, a prosecution,
witnesses, documents, and the ethics commission as jury. Or a
settlement is reached, the equivalent of a plea bargain, and no
story is told at all. Or no probable cause is found, and what
happened is kept secret (or told, often in nasty little bits,
online). 
 
Most of what is said is said without much knowledge or understanding
of government ethics and
without truly listening to what others have to say, since they are
seen to have their own personal or political goals. 
 
In this blog post, I will present a thought experiment
on how a restorative justice approach could be employed in
government ethics proceedings. I learned about the process from an
incredibly informative and moving feature article, by Paul Tullis,
in this week's New York Times Magazine, entitled "Forgiven" or,
online, "<a href="http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-…; target="”_blank”">Can

Forgiveness Play a Role in Criminal Justice?</a>" Although my
emphasis is more on the process than on the forgiveness, the article
presents the information necessary for my thought experiment.

Restorative Justice 
Restorative justice originated as a way to deal with property
offenses, where it is easiest for the perpetrator to right the
wrong, to make restitution. What is so special about the situation
in this feature article is that it involved a murder. If people can
be willing to respectfully and openly discuss a murder, there is
some hope that local government officials and others would be
willing to respectfully and openly discuss the handling of a
conflict situation. 
 
Here is how the restorative justice process works. The first
requirement is that the accused acknowledge his misconduct. If this
is the case, a facilitator meets separately with the offender and
the victims (including family members). If both are willing to meet
face to face, without displays of animosity, and the offender can
provide restitution, the case is taken out of the adversarial system
and into a parallel restorative justice system. The next step is a
restorative justice conference, at which each individual speaks, one
at a time and without interruption, about what occurred and its
effects. When everyone is done telling his or her story, with the
help of the facilitator, they try to come to a consensus about how to
repair the harm done. 
 
Ethics Victims 
In an ethics proceeding, there may or not be individual victims.
Possible victims include colleagues (e.g., fellow board members),
subordinates (who may have been intimidated into silence or even
required to participate in misconduct), and those working at
companies doing or seeking special benefits from the local
government (e.g., a victim of pay to play or losing contractors). 
 
And, of course, there is the community, which for government ethics
purposes is considered the principal victim, because it is the
community whose trust has been undermined and whose tax money has been wasted on a no-bid contract or a
grant to a family member.
Ethical misconduct also affects a community's reputation, to itself
and to the outside world. 
 
The need to repair harm done to the community is a principal reason why an ethics commission should consist
not of officials or those chosen by officials, but of members of the
community who have, and appear to have, no special relationship with
those who will come before them, or with their high-level colleagues. Only a
truly independent ethics commission that represents the community,
as a jury does, can be trusted to see things from the community's point of
view and share its concerns. 
 
Considering this, it seems unbelievable
that most ethics proceedings are handled by officials themselves,
including the legislative body, city or county attorney, supervisor
or personnel department. Rarely is any outside point of view, not to mention the community's,
taken into account. 
 
It also seems unbelievable that the respondent's family, colleagues, subordinates, and
others close to the respondent are left out of ethics proceedings,
even though they too may be victims, sometimes doubly: they
feel that their trust in the respondent was misplaced, and sometimes
they are asked to do nothing but stand by the respondent, or even to
hide information or make misrepresentations, not only of facts, but
of their feelings about what occurred and how the respondent dealt
with the conflict situation. 
 
Telling Stories 
Telling a story, from beginning to end, so that one's point of view
is heard and acknowledged, and listening to others' version of the
story and sincere apologies, is often all that people want out of a
painful situation. This is something that trials do a poor job of
providing, and most ethics proceedings don't do so well, either.
This can best be done when procedural and evidentiary requirements are voluntarily put aside, when due
process gives way to simply hearing everyone out. 
 
In 2011 <a href="http://www.cityethics.org/content/lucifer-effect-iii-%E2%80%94-debriefi…; target="”_blank”">I
wrote about story telling in terms of a post-proceeding debriefing</a>.
It's possible that story telling via a restorative justice approach might be even more valuable. 
 
There would be two principal differences between the restorative
justice process in a criminal context and the process in a
government ethics context. One, criminal offenders have no special
obligation to anyone to come clean and do their best to make
recompense for their offenses. Their participation is completely
voluntary. Government officials and employees, on the other hand, do
have special, fiduciary obligations to the community, for which they
work. These special obligations are often ignored, and rarely
mentioned by officials, in ethics proceedings. But it is these
obligations that, arguably, would make officials obligated to work
with victims to find the appropriate way to repair any harm done.
And it is the same obligations that would arguably require the telling of stories to occur in public rather than in private. Most of the value to the community of hearing the stories and the recommended remedies
would be lost if the process occurred in private. 
 
The second principal difference is that, in an ethics proceeding,
there may not be a victim or anyone else who knows, or is willing to
honestly tell, in public, the story of what occurred, and ask for
restitution. Restorative justice can work in an ethics proceeding,
or a criminal proceeding for that matter, only when there is a
perpetrator and a victim who need to be reconciled and between whom
there is harm that can be repaired. Restitution can be made for harm
to the public, but the public cannot tell its side of the story (although an ethics officer could tell what an investigation discovered, trying to provide an outsider's, that is a community, viewpoint). 
 
The Desire for Retribution 
Another important issue in ethics proceedings, which could be helped by
taking a restorative justice approach, is anger and the desire for
retribution. The public (and often the respondent's opponents) often
have a strong desire for retribution, that is, a desire for
politicians who misuse their office to be kicked out of the office
and lose their pensions. There is also a strong desire among the public and the news media to
see politicians as untrustworthy rather than to find a way to ensure
that they are trustworthy. 
 
It was the desire to relinquish this sort of anger
that led Sujatha Baliga, director of the restorative-justice project
at the National Council on Crime and Delinquency in Oakland, to
choose this area of specialization and to become the facilitator in
the murder case discussed in the Times Magazine feature article. 
 
Politicians respond to this desire with
fear. They see ethics programs as "witch hunts" directed toward
them. This leads them to block the creation of independent ethics
programs with teeth, to block even the provision of independent
ethics advice. Fear leads to mediocre ethics programs.
Comprehensive, independent ethics programs can be established only
by politicians who are not afraid (or a citizen movement
that can create such a program via referendum, something that
has not happened yet). 
 
When there is anger, fear, and distrust, it is
difficult for most people to focus on anything else. Officials are
caught up emotionally in defending and justifying themselves and
their conduct. The emotionality of anger makes everything personal
rather than professional, and causes officials to choose secrecy
over transparency, champion their integrity rather than admit to
their weaknesses. Ethics programs provide a formal process, but even
this is not enough when officials are afraid. 
 
Restorative Justice in Government Ethics 
Here is how restorative justice might work in the local government
ethics context. It could be either (1) an option that the respondent
would choose at some time before a public hearing, but the earlier
the better, if he or she acknowledged the commission of an ethics
violation (the ethics officer could accept the respondent's choice only when there
was at least one other individual who knew enough and was willing to
tell the story from a different point of view); or (2) it could be
required of officials who acknowledge their ethics violation, as
part of the settlement process, in appropriate circumstances, on the
basis that officials and employees have a fiduciary obligation to
the public to let the public know what happened. 
 
A restorative justice conference might include the respondent, the
complainant (if not anonymous), members of the respondent's agency
or board, including his supervisor, colleagues, and subordinates,
individuals or representatives of companies outside of government
involved in the conflict situation, immediate family members of the
respondent, complainant, and anyone else who feels harmed by the
respondent's conduct or by the allegations made against the
respondent (or against them), one or more representatives of the ethics commission,
and representatives of community organizations, especially those
involved in good government issues. 
 
After having listened to all the other participants' stories, the
participants would, with the help of a trained facilitator
(who would provide a list of all the possible remedies, with relevant
limitations and the necessary supplemental procedures, such as handing the matter over to another body or agency) state their
feelings about how to repair the harm done, and then seek to come to
a consensus. The remedies would include everything in an ethics commission's repertoire of remedies, a dismissal, warning, or reprimand, a referral, reversal of a retaliatory act, or a substantial penalty or restitution payment. Participants could recommend remedies that the ethics commission could not impose (such as apology, resignation, or community service), but these would be up to the respondent. Remedies might also include recommendations to a supervisor or a body that is able to discipline the respondent. In fact, recommended remedies would not have to be limited to the respondent. Remedies might also be recommended regarding those who were complicit in the conduct, or knew and told no one. And recommendations for restitution might go beyond the monetary. 
 
If they came to a consensus, it would be given to the
ethics commission for approval. If not, the restorative justice
process would be over, and the matter would continue as an ethics
proceeding. The stories told at the conference would be part of the
record, as would the recommended remedies. 
 
At this point, it would be useful for the respondent to stipulate to
facts, to determine if there is any need for further investigation,
document production, or a hearing. There could still be a public
hearing, if either the respondent or the ethics officer felt it was
necessary. If not, the ethics commission could make its decision on
the basis of the restorative justice conference. 
 
What advantages would this process have? There would be monetary
savings, both in terms of the ethics program's preparation for the
hearing and in terms of the respondent's savings in legal fees. The
story of what occurred would be told in a way that the public,
including the news media, could understand far better than something
resembling a trial. And the story would not just be about the
respondent and his conduct. It would also be about the role of the
respondent's supervisor, colleagues, and subordinates. It would be
about the harm done to individuals, companies, taxpayers, and the
community. 
 
And the people who told the story would not just be witnesses called
by one side or another, limited to answering yes or no to questions
they might find either objectionable or insufficient. Anyone
involved, directly or indirectly, could add what they know and feel
to the telling of the story. 
 
And, unlike an ordinary ethics proceeding, a restorative justice
conference is something that could be internalized by the local
government. When someone raised an ethics issue, instead of simply
asking a lawyer, a board or agency could openly discuss it, just as
they would openly discuss someone's concerns about the terms of a
land sale or the specifications for a contract. 
 
What might happen that would not otherwise happen? At the conference
in the Times Magazine article, the murderer's father took partial
responsibility for the murder, by admitting that the murder would not have occurred
if he had not had a gun in the house. He also recognized that he had
set a poor example for his son: "Conor learned how to be angry." 
 
Conor said in the conference, "What I did was inexcusable. There is
no why, there are no excuses, there is no reason." He explained what
happened, but admitted it was no accident, as some people had hoped,
even though it wasn't planned. 
 
Conor also said, "With the 'forgiveness' [of the victim's parents] I
could accept the responsibility and not be condemned." He was no
less guilty, not absolved, but he could not take refuge in feeling
abandoned and hated, as Nixon did and many other politicians do. 
 
The facilitator said, "There's no explaining what happened, but
there was just a much more nuanced conversation about it, which can
give everyone more confidence that Conor will never do this again.
And the [victims' parents] got answers to questions that would have
been difficult to impossible to get in a trial." For victims'
parents, read the community. Rarely are their questions answered. A
public restorative justice conference might answer them, and make it
easier for the community to move on after a scandal. The community
that can understand will be more able to forgive, and it is better
to forgive. As the mother of the victim said, "I think that when
people can't forgive, they're stuck." It's much healthier for the community than the desire for retribution. 
 
The biggest advantage is that the restorative justice process could
have a major effect on a local government's ethics environment and
its officials' view of what government ethics is. Its success could
mean that it would rarely be employed, because the open discussion
of conflict situations became the norm. 
 
The disadvantages? If required, a restorative justice process might
likely lead to fewer admissions and fewer settlements. Even if not
required, it might come to be expected, and have the same effect. But who knows until it's been tried. 
 
If one or more government ethics programs would offer this thought
experiment as an option (employing it in the right situations and
with an effective facilitator), we could see how it worked. Maybe there are ethics programs that have already been doing something like this. If so, please let me know. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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