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Two Explanations of Why Ethics Laws Provide Only Minimum Standards
Wednesday, September 9th, 2009
Robert Wechsler
There is little in government ethics that is more important than
recognizing that, unlike other laws, an ethics code provides only
minimum standards. That is, a public servant is required to fulfill the
letter of an ethics code, but this is just the start. In this way,
ethics laws are not like ordinary laws. Why and in what way? Here are two different
responses.
Private Interest vs. Public Interest
An ordinary law is the government (that is, the community) regulating citizens. An individual is expected to act in his or her own interest. An individual or company need only follow what is set forth by the government. If something isn't covered, it is okay. If someone finds a loophole, the government is supposed to get rid of it. Until it does, the loophole is legal, even if it may not be ethical to take advantage of it.
An ethics law is the government (that is, the community) regulating those who serve the community in the government. Unlike ordinary individuals, those who agree to serve the community are not expected to act in their own interest, they are not expected to use their position to help themselves. In other words, they have a fiduciary duty to the community. If they find a loophole in an ethics law, they are supposed to get rid of the loophole and, until they do, not take advantage of it. If they take advantage of it, even if their conduct is legal, it is unethical. And public servants have a special duty not to act unethically.
An ethics law is a law for a very special subsection of the community, and it provides only a minimum standard, that is, guidance toward acting in the public interest.
Clarity of Guidance
Ordinary laws are complex. They are not meant to guide, but to limit and define. Everyone knows it's wrong to kill people, but criminal laws divide killing into a number of different sorts. No one checks homicide laws to help them decide whether or not to kill someone.
People do check tax laws before they make business decisions, but they are so complex that an accountant is required. However, since business is involved, it is worth hiring an expert to figure out what you can and cannot do.
Ethics laws are supposed to provide guidance to public servants before the fact and without the need to consult an expert, except in especially difficult circumstances. You are supposed to check the ethics law before you get involved in a matter where your brother holds an interest. And you are supposed to understand what the law says. If the language isn't clear and relatively simple, it will not provide the necessary guidance to non-lawyer public servants.
But a clear, simple law cannot provide the answer to every situation. An ethics law cannot look anything like a tax law. That is why there are standards that go beyond ethics provisions. The principal extralegal standard is appearance of impropriety. Clear and simply: if it wouldn't seem right to the average citizen, if you wouldn't want your mother or your child to read about it on the front page or in a blog, don't do it.
Robert Wechsler
Director of Research-Retired, City Ethics
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Private Interest vs. Public Interest
An ordinary law is the government (that is, the community) regulating citizens. An individual is expected to act in his or her own interest. An individual or company need only follow what is set forth by the government. If something isn't covered, it is okay. If someone finds a loophole, the government is supposed to get rid of it. Until it does, the loophole is legal, even if it may not be ethical to take advantage of it.
An ethics law is the government (that is, the community) regulating those who serve the community in the government. Unlike ordinary individuals, those who agree to serve the community are not expected to act in their own interest, they are not expected to use their position to help themselves. In other words, they have a fiduciary duty to the community. If they find a loophole in an ethics law, they are supposed to get rid of the loophole and, until they do, not take advantage of it. If they take advantage of it, even if their conduct is legal, it is unethical. And public servants have a special duty not to act unethically.
An ethics law is a law for a very special subsection of the community, and it provides only a minimum standard, that is, guidance toward acting in the public interest.
Clarity of Guidance
Ordinary laws are complex. They are not meant to guide, but to limit and define. Everyone knows it's wrong to kill people, but criminal laws divide killing into a number of different sorts. No one checks homicide laws to help them decide whether or not to kill someone.
People do check tax laws before they make business decisions, but they are so complex that an accountant is required. However, since business is involved, it is worth hiring an expert to figure out what you can and cannot do.
Ethics laws are supposed to provide guidance to public servants before the fact and without the need to consult an expert, except in especially difficult circumstances. You are supposed to check the ethics law before you get involved in a matter where your brother holds an interest. And you are supposed to understand what the law says. If the language isn't clear and relatively simple, it will not provide the necessary guidance to non-lawyer public servants.
But a clear, simple law cannot provide the answer to every situation. An ethics law cannot look anything like a tax law. That is why there are standards that go beyond ethics provisions. The principal extralegal standard is appearance of impropriety. Clear and simply: if it wouldn't seem right to the average citizen, if you wouldn't want your mother or your child to read about it on the front page or in a blog, don't do it.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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