Ethics Practice vs. Ethics Law

One of the biggest problems people have with government ethics is acknowledging the difference between ethics enforcement and ethics practice. Ethics enforcement is legal. You cannot enforce rules that are not in the law. But when it comes to ethics practice, the law represents only the minimum requirement. The law is what you have to do, but an official can be more ethical, more open, more responsible than what is required. Officials have fiduciary duties that go far beyond the provisions of ethics codes.

An article in this week's MetroWest (western Boston suburbs) Daily News provides a good example of what can happen when ethics is practiced strictly according to the law. In Marlborough (pop. 36,000), the mayor appointed the public works director's son to a position in the public works department. The public works director filed a disclosure of his conflict of interest, which is all that is required by law. The state, whose ethics code governs local governments, has no nepotism provision.

But that doesn't mean that nepotism is okay, only that the state won't fine you for it. This case of nepotism is especially harmful, because the mayor is dating the public works director. There is no law on the books about dating department heads. However, to be safe, the mayor has filed a disclosure statement. But is this enough to make it okay to appoint her boyfriend's son to her boyfriend's department?

The council president seems to be concerned only with the law, and protecting the city from being sued. The mayor says that her relationship with the public works director had no influence on her decision, a statement no one could possibly believe.

Even where there is a law governing a matter such as nepotism, it provides only the minimum that should be done. Disclosing family relationships does not in any way deal with the ongoing problems nepotism causes or the appearance of impropriety (which is also ongoing). Ethics practice involves dealing responsibly with conflict of interest problems such as this, no matter what the law says.

Ethics practice is about preserving the public's trust in their government. How could the public be anything but disgusted by what happened in Marlborough (check out the comments to the article) and by the legalistic way in which it was handled? No ordinary person would care whether there is a nepotism provision or not. It doesn't look right, and everyone knows that it's hard to work in a department when the boss's son is working beside you.

Using the law as an excuse for this sort of conduct not only undermines the public's trust in government, but also the public's trust in ethics laws.

Robert Wechsler
Director of Research-Retired, City Ethics

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