Why Government Ethics Programs Have Limited Subject Matter Jurisdiction

An individual who was asking me government ethics questions recently became angry when I said that codes of conduct that go beyond conflicts of interest are outside of my field. He said that those who engage in bad conduct will probably also engage in bad ethics. He referred to my exclusive focus on conflicts of interest as "compartmentalization."

This reminded me how important it is to make it clear why government ethics programs deal exclusively with conflicts of interests and misuse of government office (and sometimes lobbying, campaign finance, and transparency). The reason I emphasized to the individual was an operative difference, that is, a difference in how the kinds of conduct are dealt with. A conflicts of interest program is based primarily on training, advice, and disclosure. These are much less relevant to officials who make misrepresentations, take drugs, engage in sexual harassment, steal money, have affairs, let their anger get the best of them, etc. No one is going to disclose that they have stolen money, no one can be trained not to have affairs, and no one is going to seek advice about whether to misrepresent facts. This is an important reason why these different kinds of misconduct must be dealt with differently, outside a government ethics program.

Another way to describe this difference is to note that, while enforcement is the lowest priority in a government ethics program, it is the top priority in a program to regulate these other kinds of misconduct. Since these other kinds of misconduct are more frequent than the irresponsible handling of conflict situations, including them in a government ethics program would shift an ethics commission’s priority to enforcement, greatly increase its cost, and turns an ethics program into a series of personal and/or partisan squabbles.

Personal vs. Institutional Misconduct
Equally important is the fact that these other kinds of conduct are more personal in nature. As Dennis Thompson said in his book Ethics in Congress (Brookings Institution Press, 1995), government ethics "serves to guide the actions of individuals, but only in their institutional roles and only insofar as necessary for the good of the institution. [Government ethics] uses personal ethics only as a means — not even the most important means — to the end of institutional integrity."

But there is misconduct that involves the government official's institutional role that is still not covered by government ethics programs. The reason is that this conduct is dealt with in other ways. Stealing money and taking bribes are dealt with by the criminal justice system. Sexual harassment is dealt with either by the human resources department or by the criminal justice system. Incivility should be dealt with by the board or agency.

Misrepresentation by officials is the one kind of misconduct that is institutional, not handled by any other program, and yet still should not be under the jurisdiction of a government ethics program. Besides the fact that training, advice, and disclosure are not appropriate to misrepresentation, one can argue for hours over whether an official made a lie, misrepresentation, misstatement, exaggeration, or whatever. One cannot argue for hours over whether an official helped his sister get a no-bid contract.

In addition, misrepresentation happens so often that enforcing against it can turn an ethics program into a circus of accusations and counter-accusations.

These are some of the reasons that government ethics programs have limited jurisdiction. The word "ethics" is unfortunate. It suggests all sorts of personal misconduct. But government ethics needs to be limited to only those kinds of conduct that involve and reflect upon the government institution, are subject to training, advice, and disclosure, and would not overwhelm the program with enforcement matters that are very difficult to resolve and leave few resources left for training, advice, and oversight of disclosure. This leaves conflicts of interest and, in many jurisdictions, lobbying, campaign finance, and transparency. That's more than enough.

Robert Wechsler
Director of Research-Retired, City Ethics

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