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Complicity with or Knowledge of Others' Violations

Complicity with and knowledge of violations are two minefields it is worth crossing. They involve not only dotting the i's, but they also go right to a central element of responsibility: are you responsible for what others do, especially when you are involved or you let it happen. So much of what happens in any organization involves knowingly letting others -- especially subordinates -- do the dirty work.

Note that this provision includes outsiders, such as people doing business with the city. Why should officials and employees be the only ones responsible for how they respond to outsiders' temptations?

Please share your thoughts about the issues involved here, as well as your experiences with such provisions or with situations that might have happened or been dealt with differently if there had been such a provision.

100(18). Complicity with or Knowledge of Others' Violations

No one may, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this code. If an official or employee* suspects that someone has violated this code, he or she is required to report it to the relevant individual, either the employee's supervisor, the board on which the official sits or before which the official or employee* is appearing* or will soon appear, or the Ethics Commission if the violation is past or if it is not immediately relevant to a decision, to discussion, or to actions or transactions. Anyone who reports a violation in good faith will be protected by the provisions of 112.

Comment: This subsection seems to turn all city officials and employees into stool pigeons. But, in fact, a principal reason why ethics programs are ineffective is that officials and employees feel they can get away with unethical conduct because no one will turn them in. Instead of having a culture based on ethics, their city has a culture based on loyalty. People in such a city ignore conflicts of interest, because they feel protected. There are two reasons for this: (i) no one wants to be a tattle-tale and (ii) everyone is afraid to be a tattle-tale, because doing so might threaten their jobs, lead to harassment and failure to advance, or undermine their relations with people in power.

This subsection, along with the whistle-blower protection in 112, allows the people who know most what is going on in city government - city employees - to safely foster an ethical environment by preventing action in the public interest from being against their self-interest. The inclusion of this provision makes it clear to all officials and employees that government ethics is a group activity, that unethical behavior is less an individual problem than an organizational problem.

Such a provision appears in the IMLA Model Code; the comments to the IMLA provision state, in part, "Even if a community ultimately decides not to impose any duty [to report violations], it would be better off for having debated the issue."

Whether or not anonymous reports would be accepted is another area for debate. Creating a hotline for reports of violation (anonymously or not) makes it easier for city employees and others to fulfill their duty to report violations. As long as the ethics commission can file its own complaint in such an instance, there is the protection for respondents that the ethics commission must feel satisfied, after a preliminary investigation, in the truth of the report. People's experiences with such hotlines, good and bad, would be very helpful, as would information about debates about the duty to report and about hotlines and anonymous reporting of violations.

Back to tattling, which is rarely defended in a rational way. Not tattling is something very important in childhood, where it helps maintain solidarity of children against adults. But for adults there is not a group to maintain solidarity against (hopefully not the city's residents, to whom officials have a fiduciary duty) and, therefore, this sort of unquestioning loyalty is inappropriate. The best thing to do, before reporting, is to try to prevent unethical conduct before it occurs, to directly recommend, for example, that someone recuse himself or herself or seek advice from the ethics commission. But it is important that officials and employees know that unethical conduct will not be protected by the silence of fear or misplaced loyalty.

The first sentence of this subsection, on complicity and inducement, is equally important. Under most ethics codes, a private citizen or company that induces a municipal official to violate ethics laws runs no risk of penalty. For example, hoping to keep a city's business, a bank might give a personal loan to the city treasurer at a below-market interest rate. If this loan is discovered, the official might lose his or her job as a result; however, the bank will lose nothing and, more important, knowing this, it is more likely to offer the loan. Since the goal of this code is to prevent conflicts between the official's interests and the public interest, it is important that the code also make it less likely that officials are tempted into these conflicts. Please share your experiences with provisions such as this, including instances where suits have been brought, arguing that ethics commissions have no jurisdiction over anyone other than public servants.

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