Discussing Ethics in the Middle of a Storm - Part I

Citizens have filed an unprecedented number of ethics complaints against our recently departed governor who, coincidentally, came to statewide attention because she filed ethics complaints against her party chair. The governor, who has left the state more polarized than any other politician in memory, claims the complaints were frivolous and a malicious attempt to destroy her. She even cited them in her resignation speech. There are few people in the State who don't have a strong opinion one way or the other, whether they know anything about the details or not.

It was in this context that the Alaska Public Radio Network's (APRN) Steve Heimel invited me to be on Talk of Alaska today to discuss ethics. This is an Alaska talk radio program modeled after NPR's Talk of the Nation. So listeners can call in and ask questions or make comments. [You can listen to the program at the link. Go to this icon on that page and click the arrow. You can also get to the page by clicking the icon, but it won't play here.]


Obstacles to a meaningful ethics discussion.

It's hard to talk about changing the rules in the middle of a fight. I've written academic articles about ethics and accountability and I knew that there were a couple of different ways the discussion could go. We could get mired in a shouting match between Palin supporters and opponents which wouldn't lead anywhere, or we could try to pull back and talk about the inherent conflicts in public service and how to minimize (not prevent) ethical abuses in public service.

The second approach is far less interesting because it requires thinking abstractly. Talking about nasty people trying to get the governor or about an unethical governor being held accountable by citizens is much sexier. Steve himself faced the problem of how to balance between talking about the subject in depth and not putting his audience to sleep. He tried to stir up interest using the current ethics clashes, and also tried to keep me from getting too academic on him.

My sense is that a debate about whether Palin was harassed or was the harasser would add nothing new to the public debate. At best it would give some people a chance to vent. At worst, it would aggravate the split between the factions. It would be a debate over who we like or don't like under the guise of discussing ethics. I also felt that if I offered a judgment one way or the other, I wouldn't change anyone's mind, but I would lose a bunch of people who might otherwise listen to the underlying concepts of ethics.

For me the real issue is what can we do to reduce the incentives and increase the deterrents for ethical abuse in the future. Thus I was hoping we'd have a discussion of the underlying causes of ethical violations and ways to discourage them.

Most people who write about ethics equate having a 'conflict of interest' with being unethical. But listening to public administrators and politicians talking about ethics over the years, it's become clear to me that they all had conflicts of interest, or at least potential conflicts of interest. Thus, they were already, by the current definition, unethical. The result was to throw up their hands and say, "We are already damned."

It's true that all public employees and elected officials have an inherent conflict between their personal obligations and their professional obligations. But it doesn't mean that they are unethical.

Personal obligations include:

• Family
• Friends
• Religious beliefs
• Personal values

Professional obligations (for public employees) include:

The good of the public
The good of the organization
The rule of law
The good of the profession

When there is a good fit between employees and their jobs, the job will pay enough for the employees to reasonably meet their personal obligations. Also, the mission of the organization, when there's a good fit, will be consistent with the values of the employee. A pro-life nurse, for example, working for a hospital that provides abortion would probably have serious values conflicts, but an environmentalist who likes being out in the wilderness would likely do well as a park ranger.

In the best circumstances, there is a natural fit between person and organization so that personal obligations are met legally and ethically because there is a significant overlap between the employee's needs and values and what the organization wants the employee to do and how they reward the employee.

Since conflict of interest is always a built-in potential problem, it is the consequences of the conflict we need to be more concerned about. For public employees, the two (overlapping) problems are undue gain and improper influence.

When a person works for a public organization there is usually a written agreement that includes a job description and a compensation package. "Due Gain" is the compensation - pay and benefits - that are outlined in the contract in exchange for the work outlined in the job description. (Okay, okay, this is approximate, not exact, when it comes to the work. But the pay and benefits are pretty well set.)

Undue Gain is compensation above what is called for in the contract - gifts or favors from citizens, from regulated businesses, or from other employees; personal use of the organization's equipment that is not expressly allowed in the contract; benefits based on confidential information, and other such things.

In some cases some might say, "Well, if the employee provides extraordinary service, why shouldn't a citizen who received that service, give a small thank you gift?" Well, a token gift with very little monetary value (say under $20) may seem like a reasonable and very human action. And in many cases it might well be. And in many jurisdictions it is allowed. But it can easily lead to the other related problem: improper influence.

Improper Influence is when someone uses personal criteria to make official decisions. Again, it is helpful to talk about proper influence to understand improper influence. When making official decisions, government employees should be using the law, written rules and regulations, standard operating procedures, and even professional standards, say of engineers, nurses, etc. They have to decide objectively and equitably. This increases the likelihood that the best decision for the community will be made and that all people will be fairly treated.

Once, at a workshop on ethics for public finance officers, I gave an example of how holiday fruit baskets were a low level example of undue gain. There happened to be representatives of banks at the workshop. They said, "We give those kinds of gifts. Why is that bad?" My reply, "But you are in business to make a profit, why are you spending that extra money that should go to your shareholders? The public finance officers are paid reasonably well. They don't need your holiday gifts." Now, I'm not a total Scrooge here, I can see this as a friendly gesture, but what came next, shows the problem. They responded, "But if we don't give a holiday gift and our competitors do, then we might not get treated as well by that office." This is where improper influence begins. The decisions a city makes about which bank to use should be based on objective criteria about which bank offers the best return for the city. Not on which bank sends the best holiday gift. This is the sort of thing, expanded, that led to the convictions of three state legislators last year - undue gain with the expectation of improper influence.

So can we write laws to minimize ethics violations? I'll write about what factors one should strive for in such legislation in another post in the next day or two.  [Here's PART 2.]