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Bridging the Gulf Between Administrative and Government Ethics
Wednesday, February 27th, 2013
Robert Wechsler
I have done a poor job in this blog covering administrative ethics,
that is, the field of study involving the professional conduct of
public administrators. Writers on administrative ethics have done a
poor job of covering government ethics, that is, the field of study
involving conflicts of interest. Although the two fields overlap,
they exist in mostly separate worlds. For example,
rarely does an administrative ethics professor show up at a Council
on Governmental Ethics Laws (COGEL) conference, and my work (among
others') has been totally ignored by administrative ethics
professors.
Government ethics is unusual in having very limited representation in academia. Instead, it is taught by professors who consider it essentially a small corner of their field, which is administrative ethics. And to the extent government ethics courses are taught, they deal primarily with the federal government, even though most public administrators work in state and local governments and the federal ethics program does not provide a good example for other levels.
I find this state of affairs disheartening. That is why I was excited to learn that, in the second edition of his book Ethics Management for Public Administrators: Leading and Building Organizations of Integrity (M.E. Sharpe, 2012), Donald C. Menzel added a new chapter, "Local Government Ethics Management in Action."
But what I found in the book was hostility to conflict of interest programs. My goal in this series of blog posts is to try to understand this hostility, and to propose that the disciplines respect and responsibly critique each other, rather than ignoring and, occasionally, showing hostility to each other. What we need is a dialogue and mutual respect.
Menzel sums up his view of local government conflicts of interest programs in the conclusion to his book:
Menzel sees "compliance" as regulating employees' conduct through (quoting Carol Lewis) "a largely prescriptive, coercive, punitive, and even threatening route … to spur obedience to minimum standards and legal prohibitions." He refers to Chicago's ethics program as a "compliance strategy" and applies this term similarly to its "many city- and state-level counterparts." In other words, what I write about is, in his view, a "compliance" or "low-road" approach (the term "low road" appears to have originated with John Rohr in his important 1978 book Ethics for Bureaucrats: An Essay on Law and Values).
Different Goals
The essential question is, "Approach to what?" Note that the quotation above begins, "a compliance approach to building an organization of integrity." In his conclusion, Menzel defines "an organization of integrity" as a workplace "where individuals treat each other with respect, take pride in their work, care about one another, promote accountability, and place the public interest over individual and organizational self-interest."
These are all wonderful things, but a conflicts of interest program seeks only to deal with the last of these elements of an organization of integrity. That does not make it a failure or "low road." It simply has far more limited goals. You cannot fail at doing something you do not seek to do.
Gotcha!
As for rules, Menzel seems to feel that a rules-based ethics program is purely legalistic and focused on enforcement. This is an accurate description of poor ethics programs, programs that were created and are run out of ignorance, that do not appreciate the value of training, advice, and disclosure. But that isn't what he is talking about.
In any event, it isn't a gotcha "mentality" that is the problem. After all, it is local legislators themselves who draft most ethics codes. They hardly have the mentality of setting themselves up for an unfair fall. When ethics programs are created or reformed by referendum, it is only because local legislators have failed to act. Gotcha! is not the mentality of those who create ethics programs, it's how high-level officials often view ethics programs when ethics rules are enforced against them.
The problem isn't a gotcha mentality, but gotcha provisions and the failure to understand that vague, aspirational ethics provisions can catch officials who could not possibly know that they were violating these rules. This is what occurred recently in Washington, DC, where the new ethics board applied aspirational rules to a council member.
And yet Menzel calls the aspirational approach the "high road." Again, the high road to what? To the extent Menzel refers to the aspirational codes of professional administrator associations such as the ASPA and ICMA, the aspirational approach is primarily about guidance concerning professional conduct. This is a wonderful complement to government ethics programs, but it has little to do with them. Aspirational professional codes are only to a minor extent about conflicts of interest, rarely involve enforcement, and do not apply to elected or most appointed officials, or contractors or developers, who are the principal people a government ethics program seeks to train, advise, require disclosure from, and enforce the rules against.
There is no high road and low road. There is no aspirational vs. compliance. There are different roads to different destinations, which coexist in harmony just as well as a local road and a highway. Government ethics practitioners want everything that administrative ethics professors want. But they are just driving their pickup truck along a local road, trying to get officials to deal responsibly with their conflicts of interest. It's officials themselves who sometimes promise to create an ethical organization simply through a government ethics program. Government ethics practitioners have their hands full with training, advice, disclosures, and enforcement. They can contribute to, but not manage, a healthy ethics environment.
Menzel's View of Local Government Ethics Programs
In his new chapter, Menzel does no more than look fleetingly at conflicts of interest programs in a number of local governments: (in order) Tampa, Chicago, New York City, Palm Beach County, King County WA, Salt Lake County, Cook County, Kansas City KS, and Jacksonville.
It's worth repeating the title of this chapter: "Local Government Ethics Management in Action." What is ethics management? It is the creation and maintenance of organizations of integrity. Since local government ethics programs do not seek this goal, it is likely that they will be seen to fall short of it. Which is what happens.
In what is mostly a descriptive chapter, the Wyandotte County-Kansas City, KS program gets the most amount of praise from Menzel. Why? Because its training goes beyond "the typical, narrow 'gotcha' approach"; its innovative aspects include an ethics pledge and oath, obligating employees to treat their office as a public trust (pledges and oaths are common, not at all innovative); and it takes an "integrated approach," which includes independence, confidentiality, trust, and "the promotion of good and honest local government rather than a 'gotcha' approach to dealing with misconduct." It is the only program Menzel finds has been successful, even though he admits that it is very hard to determine an ethics program's success. It also happens to be the only program whose administrator for many years was a professor of administrative ethics.
It is when he talks about New York City that the gulf between Menzel's view and mine appears the widest. Although far from perfect, NYC's ethics program is, in my view, the best we have. Mark Davies, the conflicts of interest board's executive director, has done an incredible job putting together a program that is focused on prevention of ethical misconduct through training and advice (Disclosure: I sat on a panel during a training session last year; no payment was made, even for expenses).
But here is how Menzel introduces the program, starting with a short quotation from Frank Anechiarico and James B. Jacobs' The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective (Univ. of Chicago, 1996). The quotation refers to the most recent period of ethics reform as the "panoptic era," an era in which:
And then the chapter concludes, "nearly all [the ethics programs] share a strong legal compliance orientation; there are exceptions, however, with the Unified Government of Wyandotte County and Kansas City, Kansas, being the most notable." It's clear that the author has decided.
Menzel also likes the former Jacksonville code "with its emphasis on aspirational goals." He sees it on a "forward-looking path toward recognizing that ethical governance requires more than laws and penalties." As it happens, Jacksonville has tossed away this "forward-looking" ethics program, and now has a far better ethics program with more authority and more independence. It still has the same ethics officer (City Ethics' president, Carla Miller) who provides the same advice and training. And it was she who led the change. The program's goals are more than just aspirational. Aspirational is fine, but as Menzel says about the compliance approach, it is not enough.
Where the Hostility Comes From
I think the problem Menzel has with local government ethics programs, and the hostility he seems to feel, lies in (1) asking of a government ethics program something it does not seek and is not designed to provide; (2) believing that what may work for administrative professionals will work for politicians, board and commission members, and others without a public administration degree; (3) not recognizing the limitations individuals have making decisions on their own about their conflict situations, even if they've had such things as character training and have a good "ethical compass"; (4) confusing enforcement with "gotcha," and not recognizing how "gotcha" aspirational provisions can be, even if there is no enforcement mechanism; and (5) a lack of respect for those whose work is not focused on administrative ethics concerns such as ethical leadership, values and commitments, and building integrity.
Ironically, while I and the local government ethics practitioners I talk with see government ethics as dealing responsibly with conflict situations, that is, a professional rather than integrity approach, administrative ethicists such as Menzel ignore this professional aspect of government ethics programs, despite their own focus on what professional administrators should do and be. Something as crazy as this could only come from the fact that the two groups effectively have different ideologies, based on different experiences. One group comes out of public administration theory and practice. The other group comes out of practical problems involved in getting officials to deal responsibly with their conflicts of interest.
Those who believe that ethical leadership and professional pride and integrity are what matters most are focused on professional administrative values. Those who believe that guidance and the threat of enforcement are what matters most are focused on trying to get mostly non-professionals to act professionally. Both are important, and they are completely complementary. But I don't get the feeling that both groups feel this way.
I would never think of referring to administrative ethics as the "low road." Despite what Menzel says, conflicts of interest programs have more than laws and penalties. There are poor programs that do not, and I criticize them. But the great majority of local governments have no program at all, or nothing but weak enforcement. They need guidance. Ethics Management for Public Administrators, with its new chapter on local government ethics programs, provides almost none of this guidance. And my book, which provides a huge amount of this guidance, is of no interest to Mr. Menzel nor to his colleagues, at least as far as I have seen.
I have great respect for those writing about administrative ethics, for the professional association ethics codes, for the need for ethical leadership, for those who are teaching public administration students to be honest, respectful, and accountable. But these students also need to be taught about the elements of a conflicts of interest program in a way that helps them institute such programs in their cities, counties, and states.
Let me throw out for mutual consideration one topic that is not considered in Menzel's book. I assert that the most important element of a local government ethics program is the provision of timely ethics advice by an independent, trained ethics adviser. I do not believe that even the best ethics training or best ethical leadership can overcome an individual's blind spots when it comes to dealing responsibly with his conflict situations. Ethics training can, however, educate officials in recognizing ethics situations so that they can seek advice. I also assert that ethics advice is the principal way in which a government ethics program can go beyond the legal into the ethical. I explain this at length in the Advice section of my book Local Government Ethics Programs.
Do you agree or disagree, and why? Please put your views in the form of a comment to this post, and help get the dialogue started.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Government ethics is unusual in having very limited representation in academia. Instead, it is taught by professors who consider it essentially a small corner of their field, which is administrative ethics. And to the extent government ethics courses are taught, they deal primarily with the federal government, even though most public administrators work in state and local governments and the federal ethics program does not provide a good example for other levels.
I find this state of affairs disheartening. That is why I was excited to learn that, in the second edition of his book Ethics Management for Public Administrators: Leading and Building Organizations of Integrity (M.E. Sharpe, 2012), Donald C. Menzel added a new chapter, "Local Government Ethics Management in Action."
But what I found in the book was hostility to conflict of interest programs. My goal in this series of blog posts is to try to understand this hostility, and to propose that the disciplines respect and responsibly critique each other, rather than ignoring and, occasionally, showing hostility to each other. What we need is a dialogue and mutual respect.
Menzel sums up his view of local government conflicts of interest programs in the conclusion to his book:
[A] compliance approach to building an organization of integrity is not sufficient. Indeed, in its most pernicious form it can lead to the lowest common denominator that if it's legal, it's ethical. This low-road approach will never lead to an ethical workplace. Rather, the workplace becomes one in which rule evasion and dodging go hand in hand with a "gotcha" mentality. The high road of aspirational ethics must be taken.What Menzel means by a "compliance" approach is not what government ethics professionals call "compliance." We see "compliance" as an essentially corporate approach to ethics, based on standards and auditing, intended to comply with the Federal Sentencing Guidelines. Compliance in local governments is accomplished by auditors and inspectors general.
Menzel sees "compliance" as regulating employees' conduct through (quoting Carol Lewis) "a largely prescriptive, coercive, punitive, and even threatening route … to spur obedience to minimum standards and legal prohibitions." He refers to Chicago's ethics program as a "compliance strategy" and applies this term similarly to its "many city- and state-level counterparts." In other words, what I write about is, in his view, a "compliance" or "low-road" approach (the term "low road" appears to have originated with John Rohr in his important 1978 book Ethics for Bureaucrats: An Essay on Law and Values).
Different Goals
The essential question is, "Approach to what?" Note that the quotation above begins, "a compliance approach to building an organization of integrity." In his conclusion, Menzel defines "an organization of integrity" as a workplace "where individuals treat each other with respect, take pride in their work, care about one another, promote accountability, and place the public interest over individual and organizational self-interest."
These are all wonderful things, but a conflicts of interest program seeks only to deal with the last of these elements of an organization of integrity. That does not make it a failure or "low road." It simply has far more limited goals. You cannot fail at doing something you do not seek to do.
Gotcha!
As for rules, Menzel seems to feel that a rules-based ethics program is purely legalistic and focused on enforcement. This is an accurate description of poor ethics programs, programs that were created and are run out of ignorance, that do not appreciate the value of training, advice, and disclosure. But that isn't what he is talking about.
In any event, it isn't a gotcha "mentality" that is the problem. After all, it is local legislators themselves who draft most ethics codes. They hardly have the mentality of setting themselves up for an unfair fall. When ethics programs are created or reformed by referendum, it is only because local legislators have failed to act. Gotcha! is not the mentality of those who create ethics programs, it's how high-level officials often view ethics programs when ethics rules are enforced against them.
The problem isn't a gotcha mentality, but gotcha provisions and the failure to understand that vague, aspirational ethics provisions can catch officials who could not possibly know that they were violating these rules. This is what occurred recently in Washington, DC, where the new ethics board applied aspirational rules to a council member.
And yet Menzel calls the aspirational approach the "high road." Again, the high road to what? To the extent Menzel refers to the aspirational codes of professional administrator associations such as the ASPA and ICMA, the aspirational approach is primarily about guidance concerning professional conduct. This is a wonderful complement to government ethics programs, but it has little to do with them. Aspirational professional codes are only to a minor extent about conflicts of interest, rarely involve enforcement, and do not apply to elected or most appointed officials, or contractors or developers, who are the principal people a government ethics program seeks to train, advise, require disclosure from, and enforce the rules against.
There is no high road and low road. There is no aspirational vs. compliance. There are different roads to different destinations, which coexist in harmony just as well as a local road and a highway. Government ethics practitioners want everything that administrative ethics professors want. But they are just driving their pickup truck along a local road, trying to get officials to deal responsibly with their conflicts of interest. It's officials themselves who sometimes promise to create an ethical organization simply through a government ethics program. Government ethics practitioners have their hands full with training, advice, disclosures, and enforcement. They can contribute to, but not manage, a healthy ethics environment.
Menzel's View of Local Government Ethics Programs
In his new chapter, Menzel does no more than look fleetingly at conflicts of interest programs in a number of local governments: (in order) Tampa, Chicago, New York City, Palm Beach County, King County WA, Salt Lake County, Cook County, Kansas City KS, and Jacksonville.
It's worth repeating the title of this chapter: "Local Government Ethics Management in Action." What is ethics management? It is the creation and maintenance of organizations of integrity. Since local government ethics programs do not seek this goal, it is likely that they will be seen to fall short of it. Which is what happens.
In what is mostly a descriptive chapter, the Wyandotte County-Kansas City, KS program gets the most amount of praise from Menzel. Why? Because its training goes beyond "the typical, narrow 'gotcha' approach"; its innovative aspects include an ethics pledge and oath, obligating employees to treat their office as a public trust (pledges and oaths are common, not at all innovative); and it takes an "integrated approach," which includes independence, confidentiality, trust, and "the promotion of good and honest local government rather than a 'gotcha' approach to dealing with misconduct." It is the only program Menzel finds has been successful, even though he admits that it is very hard to determine an ethics program's success. It also happens to be the only program whose administrator for many years was a professor of administrative ethics.
It is when he talks about New York City that the gulf between Menzel's view and mine appears the widest. Although far from perfect, NYC's ethics program is, in my view, the best we have. Mark Davies, the conflicts of interest board's executive director, has done an incredible job putting together a program that is focused on prevention of ethical misconduct through training and advice (Disclosure: I sat on a panel during a training session last year; no payment was made, even for expenses).
But here is how Menzel introduces the program, starting with a short quotation from Frank Anechiarico and James B. Jacobs' The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective (Univ. of Chicago, 1996). The quotation refers to the most recent period of ethics reform as the "panoptic era," an era in which:
public employees are "akin to probationers in the criminal justice system." The end result is an ethics management system run amok. The pursuit of absolute integrity, a system in which everyone is presumed guilty of some wrongdoing, turned New York City into an ungovernable enterprise.After this hyperbole, and his refusal to say whether he subscribes to it or not, Menzel goes on to write a short description of the program. His introduction leaves a bad taste in one's mouth, as does his conclusion: "Does New York City take ethics management seriously? You decide." Kansas City's description ends, "Is the unified government marching to a different drummer? You decide."
And then the chapter concludes, "nearly all [the ethics programs] share a strong legal compliance orientation; there are exceptions, however, with the Unified Government of Wyandotte County and Kansas City, Kansas, being the most notable." It's clear that the author has decided.
Menzel also likes the former Jacksonville code "with its emphasis on aspirational goals." He sees it on a "forward-looking path toward recognizing that ethical governance requires more than laws and penalties." As it happens, Jacksonville has tossed away this "forward-looking" ethics program, and now has a far better ethics program with more authority and more independence. It still has the same ethics officer (City Ethics' president, Carla Miller) who provides the same advice and training. And it was she who led the change. The program's goals are more than just aspirational. Aspirational is fine, but as Menzel says about the compliance approach, it is not enough.
Where the Hostility Comes From
I think the problem Menzel has with local government ethics programs, and the hostility he seems to feel, lies in (1) asking of a government ethics program something it does not seek and is not designed to provide; (2) believing that what may work for administrative professionals will work for politicians, board and commission members, and others without a public administration degree; (3) not recognizing the limitations individuals have making decisions on their own about their conflict situations, even if they've had such things as character training and have a good "ethical compass"; (4) confusing enforcement with "gotcha," and not recognizing how "gotcha" aspirational provisions can be, even if there is no enforcement mechanism; and (5) a lack of respect for those whose work is not focused on administrative ethics concerns such as ethical leadership, values and commitments, and building integrity.
Ironically, while I and the local government ethics practitioners I talk with see government ethics as dealing responsibly with conflict situations, that is, a professional rather than integrity approach, administrative ethicists such as Menzel ignore this professional aspect of government ethics programs, despite their own focus on what professional administrators should do and be. Something as crazy as this could only come from the fact that the two groups effectively have different ideologies, based on different experiences. One group comes out of public administration theory and practice. The other group comes out of practical problems involved in getting officials to deal responsibly with their conflicts of interest.
Those who believe that ethical leadership and professional pride and integrity are what matters most are focused on professional administrative values. Those who believe that guidance and the threat of enforcement are what matters most are focused on trying to get mostly non-professionals to act professionally. Both are important, and they are completely complementary. But I don't get the feeling that both groups feel this way.
I would never think of referring to administrative ethics as the "low road." Despite what Menzel says, conflicts of interest programs have more than laws and penalties. There are poor programs that do not, and I criticize them. But the great majority of local governments have no program at all, or nothing but weak enforcement. They need guidance. Ethics Management for Public Administrators, with its new chapter on local government ethics programs, provides almost none of this guidance. And my book, which provides a huge amount of this guidance, is of no interest to Mr. Menzel nor to his colleagues, at least as far as I have seen.
I have great respect for those writing about administrative ethics, for the professional association ethics codes, for the need for ethical leadership, for those who are teaching public administration students to be honest, respectful, and accountable. But these students also need to be taught about the elements of a conflicts of interest program in a way that helps them institute such programs in their cities, counties, and states.
Let me throw out for mutual consideration one topic that is not considered in Menzel's book. I assert that the most important element of a local government ethics program is the provision of timely ethics advice by an independent, trained ethics adviser. I do not believe that even the best ethics training or best ethical leadership can overcome an individual's blind spots when it comes to dealing responsibly with his conflict situations. Ethics training can, however, educate officials in recognizing ethics situations so that they can seek advice. I also assert that ethics advice is the principal way in which a government ethics program can go beyond the legal into the ethical. I explain this at length in the Advice section of my book Local Government Ethics Programs.
Do you agree or disagree, and why? Please put your views in the form of a comment to this post, and help get the dialogue started.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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