making local government more ethical

Should the Josephson Institute's Principles of Public Ethics Be Enforceable Rules?

Should the Josephson Institute's Five Principles of Public Ethics be enforceable by a local government? And if not, why not?

Article I of Allen Park, MI's charter consists of the five Josephson Institute principles, plus one more about "congeniality and productivity." Here are the five Josephson principles:
1. Public office is a public trust. Public servants should treat public office as a public trust, using the powers and resources of public office only to advance public interest, and not to attain personal benefits or pursue any private interest incompatible with the public good.

2. Principle of independent, objective judgment. Public servants should employ independent, objective judgment in performing their duties, deciding all matters on the merits, free from conflicts of interest and apparent improper influences.

3. Principle of accountability. Public servants should assure that government is conducted openly, efficiently, equitably, and honorably in a manner that permits the citizenry to make informed judgments and hold government officials accountable.

4. Principle of democratic leadership. Public servants should honor and respect the principles and spirit of representative democracy and set a positive example of good citizenship by scrupulously observing the letter and spirit of the laws and rules.

5. Principle of respectability and fitness for public office. Public servants should safeguard public confidence in the integrity of government by being honest, fair, caring, and respectful and by avoiding conduct which creates the appearance of impropriety or which is otherwise unbefitting a public official.
These are all fine principles. But the question is, should they be aspirational principles, or should they be enforceable rules? According to an article in the News-Herald, Allen Park's ethics committee found that a council member had violated principle 5, as well as the congenality principle, by calling a police officer names at a public meeting.

This certainly is neither congenial nor respectful. But does it really reflect on the integrity of government when officials get into a name-calling match with each other?

There are three subissues here. One is about the purpose of ethics provisions, one is about fairness, and the third is about the burden on an ethics commission.

Purpose of Ethics Provisions
Is the purpose of an ethics provision simply to control officials' conduct, or is this control for the sake of preserving trust in the government? I believe it is the latter. This is even what the fifth principle says:  "Public servants should safeguard public confidence in the integrity of government."

There are all sorts of conduct an official can do that violates the Josephson principles, but has nothing to do with public confidence in government (the word "integrity" here is both unnecessary and inappropriate; only an individual can have integrity). An official who does not approach a matter objectively (second principle) because, say, she was elected on the basis of pro-development promises, does not in any way undermine public confidence in government.

Nor does an official who is caught smoking marijuana, thereby breaking a law (fourth principle), undermine public confidence in government.

One kind of conduct is political, the other is personal but not having to do with government. Neither of these kinds of conduct should be enforced in an ethics program, because they have nothing to do with public confidence in government. This is also the case with childish bickering, which reflects only on the individuals involved, not on the government.

Enforcing these principles is also unfair. How can an official know what is considered "unbefitting" conduct so that she can try her best not to engage in it? And what about an official who intentionally breaks an unfair law, for example, one against protesting outside city hall? Should that official not only be arrested, but also face an ethics prosecution, for acting courageously?

Enforceable ethics provisions should provide relatively clear guidance. And they should deal with matters upon which an official may seek guidance from an ethics adviser. No one is going to ask an ethics adviser whether he can engage in a name-calling spat with a police officer, or support a pro-development bill, or smoke a joint. If an official cannot seek advice, as he can with respect to participation relating to a contract, grant, or gift when there is a possible conflict of interest involved, then it is less fair to make his conduct the subject of an ethics proceeding.

Burden on an Ethics Commission
The third subissue is about the burden on an ethics commission. Conflicts of interest matters come up often, but most of them can be dealt with quickly through informal ethics advice. Josephson Institute principle matters come up far more often, and most of them cannot be dealt with quickly through informal ethics advice. This means that an ethics commission may be inundated with complaints, and overwhelmed, so that it lacks the time and resources to train, provide advice, oversee disclosure, and deal with its core responsibility, which even in Allen Park is conflicts of interest.

It also means that, since the matters that may be raised are so numerous, political antagonisms are likely to be played out before the ethics commission. Complaints that would, under a program based on enforceable rules, be quickly dismissed, have to be heard when broad aspirational principles are enforceable. This turns the ethics program into a partisan circus, and undermines not only trust in the government, but also trust in the ethics program, especially when ethics commission members are selected by the high-level officials who keep coming before it.

The Josephson Institute Principles of Public Ethics are fine aspirational principles. But they are too broad, too vague, and in some ways inappropriate for elected and appointed officials to be made enforceable. They belong, if at all, in a Declaration of Principles at the beginning of an ethics code (not in a charter). And such a Declaration should be expressly described as purely aspirational, not enforceable.

Robert Wechsler
Director of Research, City Ethics