Week 4 - Assignment: Analyze a Case Study of a Nonprofit Leader's Actions

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INTRODUCTION: ETHICS IN PUBLIC SERVICE

Ethics and genuine professional success march together in the enterprise calledpublic service. Yet neither guarantees the other. How? Why? The answers stem from the links between ethics and professionalism in a democracy. So we begin here by examining the meaning and practice of ethics — a few definitions mean that we talk the same language. Then we take a hard look at public service’s track record on ethics.

Next we lay out our own approach to the likely future of public service and its ethical challenges by drawing on its tradition, experience, and current agenda. Our approach blends two standard ones: (1) using enforced rules or compliance systems and (2) depending on individual integrity in decision making. We recommend fusing the two. Public service and public employees will both be better served when they draw on the best of both approaches and use them to move forward with all deliberate speed.

Now we set the stage for action with some hard questions from real workaday experience:

• Wanting to protect their children, some local parents police the social media. They see that a guidance counselor in the high school posted a picture of himself on vacation and drinking beer from a bottle. They want stern action from the principal, who wonders whether privacy extends to Facebook and whether her job includes the personal life of employees.

Lewis, C. W., & Gilman, S. C. (2012). The ethics challenge in public service : A problem-solving guide. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from ncent-ebooks on 2021-10-07 20:13:11.

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2 The Ethics Challenge in Public Service

• Learning that an HIV-positive client refuses to tell or protect the partner and being torn in different directions by law, confidentiality, public safety, and com- passion, Bill considers quitting or just settling for a serious case of burnout.

• Several irate citizens doxed the town attorney and town planner who signed off on a local development agreement. Not to be intimidated, the planner retaliated by shooting off a defensive e-mail to the town council and local newspaper. Wondering what is good for the town and fair to employees and their families, the head of human resources thinks about some citizens’ demand to take action against the town employee.

• A town ordinance forbids more than four unrelated people to share rented living quarters. Verifying a neighbor’s complaint on a site visit, you discover a somewhat unorthodox domestic setup by otherwise law-abiding adults. Their lifestyle appears to offend the neighbor. After years in the health department, you know that ordinances like these have not stood up in court. Do you start eviction proceedings?

What is the right thing to do? What makes a problem your responsibility? What does the difference between helping someone and not hurting someone mean on the job? What should you do when the rules push one way and reason or compassion another?

Here is another dilemma:

• The legislature is giving your agency its ‘‘fair share,’’ meaning an across-the- board budget cut. Because you have seen to it that your agency is very efficient, it is hard to absorb a cut like this. As the current fiscal year draws to a close, you confirm that there are unspent funds in one account. You remember how your first boss squirreled money away to buy some slack at year end.

Where do loyalties lie? If an action is legal, does that make it ethical? When good management is penalized, should a responsible manager get around shortsighted economies to protect the agency and its missions, employees, and service recipients?

About 15 percent of the U.S. civilian labor force worked in government at the beginning of 2011, the U.S. Bureau of Labor Statistics tells us. (For another calculation that includes the contract workforce, see Light, 2010.) More than half of these almost 22.5 million government workers are in local government. More than half of all state and local employees work in public education, and so the numbers make public education a likely target in tough times. The economic downturns in the late 1980s and the early 2000s and the Great Recession (officially lasting from December 2007 until June 2009) affected government and nonprofit agencies and programs across the country.

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Introduction 3

The ethical content of the responses to pressures often is what turns a problem into a crisis. People are laid off, lives are disrupted, and dreams go into a holding pattern. The Great Recession hurt nearly everyone in some way (Pew Research Center for the People and the Press, 2010a). Cuts in health programs and social services hurt the poor, and some minority groups suffered higher unemployment. Charitable donations saw the biggest decline in more than four decades (Center on Philanthropy, 2011).

For public employees, the effects intensified as headlines screamed about ‘‘hard choices’’ in the United States, Greece, Ireland, and elsewhere. In 2011, Camden, New Jersey, laid off nearly half its police force, and school dis- tricts in Texas, Florida, Wisconsin, California, and Colorado scrambled to provide services. So did museums and nonprofit social service agencies facing sharply reduced government funding. The governor of New Jersey blamed state employees for pushing the state into ‘‘a fiscal death spiral’’ (Bai, 2011).

The stress affects organizational ethics across the spectrum. Several surveys pointed to more fraud in nonprofit agencies. ‘‘The high standards of ethics in nonprofits are eroding. Fifty-five percent of nonprofit employees report observ- ing misconduct. This is now level with the business and government sectors’’ (Four Fraud Facts, 2010). The Corporate Executive Board’s survey of more than 125,000 employees in seventy-five countries identified a 20 percent increase in observed misconduct in 2008 alone (Ethics Resource Center, 2009b). A 2010 sur- vey of U.S. businesses found that trust and ethics had declined (Deloitte, 2010). The Organization for Economic Cooperation and Development (OECD), with its thirty-four members, echoes this concern: ‘‘The financial crisis revealed failures of governance . . . For the sake of keeping the trust of voters, governments also need to be able to reassure citizens that their affairs are in safe hands’’ (OECD, n.d.).

The strain affects individuals directly. ‘‘There’s more stress because you don’t know when they’re going to call you in and give you a pink slip,’’ or notice of dismissal (Trotta and Honan, 2011). Some public employees take the service cuts and layoffs to mean that the public puts a low value on their work. One said, ‘‘You feel punched in the stomach’’ (Gabriel, 2011, p. A1).

The survivors also work under stress. When Houston looked at laying off twenty-three hundred employees in 2011, a member of the city council described the result as ‘‘misery’’: ‘‘There’s no nice way to lay off people . . . There’s just not’’ (Moran, 2011).

If pain is not a good-bad meter, how do you know that what you are doing is right?

What am I doing, keeping my job and firing operational employees? What is the agency’s purpose, after all? What is the difference between what is right and what is easy? How do you cope when the job requires dirty work? How do you survive budget crunch pressures?

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4 The Ethics Challenge in Public Service

Exercising Power

These decisions have moral content and moral challenge. They illustrate the power that professional public managers exercise over people’s lives . Because so much power, so many resources, and so many lives are in play, much is at stake.

Cutbacks and Priorities Relentless pressures and the need for quick

decisions are routine in public service. Because the choices truly matter for everyone, including

public managers, this book examines dilemmas like these and offers some tools for resolving them.

Linking Ethics and Power

Political arguments framed in ethical terms may turn up the heat, just as financial pressures may camouflage other objectives. Many claimed that this was the story in Wisconsin, Ohio, and some other states in 2011 when the salary, benefits, competence, and performance of public employees were under attack. President Barack Obama told the National Governors Association in February 2011, ‘‘I don’t think it does anybody any good when public employees are denigrated or vilified . . . If all the pain is borne by only one group . . . we’re not doing the right thing’’ (italics added; Condon, 2011). When moral tags and justifications are added into the mix, the arguments may go viral: because this is immoral, we must stop it, whatever the cost (and whoever pays for it). For example, Eric Cantor, majority leader of the U.S. House of Representatives in 2011, labeled the growing national debt ‘‘a moral threat,’’ and others see it as a ‘‘biblical issue.’’ Yet drawing on the same authority but seeing advocacy on behalf of the poor and weak as a moral obligation, Sojourners, a Christian ministry devoted to social justice, preached another view and different choices. Moral arguments are a legitimate part of political discussions. Unfortunately,

Galactic Collision

moral arguments all too often are selected to advance a preset political agenda, block alternatives, or attract political support .

Worth a Thousand Words

Culture is an important vehicle for communicating ethics and the link between ethical behavior and political power. Culture has been defined as ‘‘the entire interactive symbolic environment in which humans live and communicate’’ (Donald, 2000, p.23). The books and films about Harry Potter (and Lord Voldemort, the evil wizard) are modern versions of the classic struggle between good and evil. The Star Wars films, the science fiction/fantasy film Avatar, and

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Introduction 5

even Disney’s Sleeping Beauty broadly tell the same tale, although in different settings and with different characters. In Spike Lee’s 1989 film Do the Right Thing, Radio Raheem tells the story as a conflict between the right and the left hand. Still not convinced? Remember the stories of Robin Hood, the Wicked Witch of the West in The Wizard of Oz, and superheroes such as Spiderman and Batman facing off against supervillains? These stories are all symbolic, clear-cut representations (or allegories) that teach lessons about ethics and power and how and why to recognize and opt for good over evil (Campbell, 1972).

Artists and authors often use widely shared symbols and romanticized expe- riences to communicate the ideal. These are powerful icons with an attitude and a viewpoint. They are meant to push buttons and stir up responses strengthened by the power of emotion and engagement.

Artistic Expressions of Good and Bad Government

The point they make is that good and bad governments deeply shape the quality of our lives and that the public can know the difference . The argument

is universal: justice, honesty, integrity, and right behavior are the bedrock foun- dation of good government, political stability, and prosperity. Art and literature also can be vehicles of political mobilization by exposing the disagreeable effects of a mismatch between the idealized vision and actual practice.

Working Definitions

Public managers routinely do their jobs, solve problems, and even work some miracles. And they practice ethics besides. Personal, professional, and public expectations join together to challenge managers who voice and resolve both routine and emergency ethical problems. Ethical action is another part of the job.

Only a few definitions are needed here so that we can begin a meaningful, practical dialogue. We purposefully keep the definitions few and simple, so as not to divert our attention from the pressing issues we face on the job. First, ethics involves thinking systematically about morals and conduct and how we treat other people. Budd Kass, professor at Portland State University, says, ‘‘Morals are the rules of the game. Ethics are how you choose to play them’’ (American Society for Public Administration, http://www.aspaonline.org/ethicscommunity /definitions.htm).

In everyday use, ‘‘ethics’’ often refers to principles of action that implement or promote moral or ethical values. Morals (derived from the Latin mores, or customs) refers to standards of right conduct. To avoid engulfing the discussion in terminology, many sources (for example, Singer, 1979) and this book use ethics and morals interchangeably.

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http://www.aspaonline.org/ethicscommunity

6 The Ethics Challenge in Public Service

Moral choice and moral judgment are explored in Exhibit I.1. This exercise demonstrates moral choice — the would-should divide, the heart of good moral character to which most of us are exposed as children. The mama test (what mama would say) clarifies simple choices between right and wrong.

EXHIBIT I.1 Would I? Should I?

Begin by reading the four scenarios, and answer each with a yes or no on the chart below. Please be spontaneous; go with your gut feel, and be candid. Then answer the two questions below.

1. Driving a government vehicle on the most direct route to a late morning meeting in another town, you pass within a block of a store holding a personal package for you. For efficiency’s sake, do you stop by to pick it up?

2. An irresponsible and disagreeable employee is looking for a job in the private sector. To get rid of this person, do you agree to provide a positive reference?

3. Confirmed charges come to light that the likely appointee to assistant commissioner (who has public support and political backing) was denied visitation rights because of child abuse a few years ago. Do you advise your new chief to go ahead with the appointment?

4. Through personal business channels, you are privy to information that is not publicly known about a parcel your agency is considering for a development program. The information would save the state a material sum now and big headaches later. Because the public interest is at stake, along with your professional standing, do you privately tip off the commissioner?

Write yes or no for each scenario. In the final column, if you think some would, then write in yes. If you don’t think this happens now and again, write in no.

Would I Should I Would Others Do This? Do This? Do This?

1. Do personal errand

2. Write reference

3. Recommend

4. Tip off

1. Are your responses the same across each row? 2. Does the last column have more yes responses than the other columns?

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Introduction 7

Adults must make moral judgments when they find themselves between the rock and the hard place of mismatched duties and conflicting claims — the stuff of ethical dilemmas. Unfamiliar situations, organizational and technological impersonality, and professional and public power intensify pressures.

The exercise in Exhibit I.1 illustrates that decision making turns on four factors:

• Ethical, legal, and pragmatic considerations • The other person’s likely motive • Assessment of the seriousness of the ethical issue or offense • Price tag, that is, considerations of career, cost, convenience, competence,

commitment, and courage

As you work through the scenarios in Exhibit I.1, you may notice that the problems get tougher and more complicated, until they propel you between that rock and hard place of conflicting claims and competing ethical ideas.

The first case speaks to the experience of many government employees: using a government vehicle (and other rules on gifts and travel reimbursements) triggers impatience, annoyance, or even outrage over petty controls. But it is not an ethical dilemma. It is a relatively simple choice between right versus wrong, virtue versus vice. In fact, many statutes and ordinances restrict the use of public resources and expressly prohibit the use of government cars for personal use. Here we are talking a price tag that may surface as career, cost, or other considerations. Here it is personal convenience. Perhaps because it is relatively trivial — not earth shattering, not arousing human urgency — it has been known to happen and probably is happening somewhere at this moment. Apparently using a cost-to-benefit-to-risk ratio precisely the opposite of a scoundrel’s, even ethical people may slip into compromise over seemingly trivial matters.

The first question asks, ‘‘Are your responses the same across each row?’’ Usually the answer is no. The ‘‘Would I? – Should I?’’ question captures the heart of good moral character to which most of us are exposed as children when we learn fundamental ethical perspectives. Because there’s probably very little anyone can tell you about these choices that you don’t already know, the mama test of disclosure is useful for simple moral choices.

How about the second case: writing a less-than-candid reference? Do you think it’s ever done? This case is about evasion, lack of candor, perhaps even deception. It is different from the personal errand because it serves the organization rather than the individual. Some people may try to justify it for that

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8 The Ethics Challenge in Public Service

very reason. Writing that reference may be useful or pragmatic, but it sweeps aside opposing ethical values such as telling the truth and taking responsibility.

Life in public service is not always so clear-cut and raises the need for ethical judgment when facing ethical dilemmas that pose morally unacceptable options or trade-offs. Four factors sum up the difference between childhood moral lessons and the adult world: ambiguity, uncertainty, complexity, and responsibility. As a result, the would-should choice turns on ethical, legal, and practical concerns; attributed motivation; the weight of the ethical issues or offenses; and the price tag.

The third and fourth cases shove you squarely into that sometimes per- plexing adult world. The appointment case illustrates the special responsibilities associated with public service and how the need for public confidence and trust quickly blurs the line between public and private lives as one becomes profes- sionally more successful, more powerful, and more visible. In the appointment case, vulnerability takes on a human face and vies with moral repugnance. This is a tough call, and well-intentioned people of moral character may disagree.

The last case presents a painful dilemma in which the decision maker struggles with competing obligations: professionalism faces off against the public interest. What’s the right thing to do in this fourth case? Confusion? Complexity? Precisely. Wrong versus wrong, right versus right, nuance, and judgment are what dilemmas are all about. When it comes to dilemmas, information is especially productive because accountability is so important in a democracy and relies on the honored virtue of truth telling and because information is a pivotal resource in modern governance. The case suggests that the price tag for either silence or disclosure may be quite high. Although ethical decision makers may disagree on what is the right thing to do, the tip-off tactic is offensive because it annuls personal responsibility and voids accountability.

Now take a look at the second question. Does your last column have more yes responses than the other columns? The ‘‘Would Others?’’ column translates into the conventional view of ethics as the other person’s problem. People typically express a belief that their own ethical standards are higher than other people’s, so we readily anticipate unethical behavior by others. The danger is that in a search for an excuse for our own unethical conduct, we may slip over the would-should divide and argue ‘‘everybody is doing it’’ or self-defense. Because responsibility is fundamental to ethics, this is an ethically bankrupt argument.

What makes ethics so important to public service is that it goes beyond thought and talk to performance and action. As a guideline for action, ethics draws on what is right and important. Rooted in the idea of responsibility, ethics implies the willingness to accept the consequences of one’s actions. Ethics also refers to principles of action that implement or promote moral values.

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Introduction 9

Moral character means having appropriate ethical values and is associated with virtues such as honesty and fidelity. Sometimes called a ‘‘moral compass,’’ character is a sort of internal gyroscope that helps a person distinguish right from wrong and inhibits wrongdoing. Bringing their moral character to the job, ethical managers do a two-step: they use informed, systematic reasoning and follow it by action.

In sum, the subject of ethics is action based on judgments of right and wrong. Three questions summarize the subject’s practical underpinnings: (1) What counts in public service? (2) What is at stake? (3) How can public managers ensure professional success and ethical survival? Finer distinctions and elegant terminology are available for conceptual clarification, but they threaten to bury the subject in words, killing interest along with utility, for practical managers who are more concerned with deeds than definitions.

Public Service’s Scope and Soul

Public service is doing and for that reason is defined as much by its public mission — what the manager is doing — as by public law or other formal criteria. Picture a continuum running from public to private. For our purposes, ‘‘public service’’ refers to agencies and activities tending toward the public side of the continuum. The public-private dichotomy is best used as a simple shorthand for important, persistent themes in American politics, including the relationship of the individual to the community and the proper role and size of government (Stark, 2009). Our ideas about the public and private realms often frame clashes over public policy and are associated with ideological and partisan viewpoints.

In fact, there is no clear division between public and private (Kettl, 2009; O’Leary and Bingham, 2009). Boundaries are ambiguous and dynamic, where there are boundaries at all. Paul Light (1999, p. 1) announced ‘‘the end of the government-centered public service and the rise of a multi-sectored service to replace it’’ more than a decade ago. This development is not unique to the United States. The OECD’s many studies show that irregular and shifting institutional structures and relationships clutter many vibrant free-market, democratic societies today.

The size and shape of the public realm itself is dynamic and multidimensional. Now the two-dimensional continuum changes its form into a three-dimensional web. H. George Frederickson (2010, p. 239) comments, ‘‘Just as governments float in a vast public sea, so, too, do nonprofit organizations, churches, businesses and corporations, tribes, clubs, networks, and all other human collectives.’’ As their relationships, collaborators, networks, partners, and tasks change over time

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10 The Ethics Challenge in Public Service

and over different situations, public organizations shift their positions on this web. In fact, many hold different positions at the same time. The many mixed activities and joint operations, such as public-private partnerships and contractual or collaborative relationships, often turn on working with government and also are oriented toward public service.

Embracing more than government alone, the idea of the public sector includes quasi-governmental agencies and the many nonprofit organizations devoted to community services and the public interest (and often publicly funded, at least in part). These purposes explain the tax-exempt status granted by the Internal Revenue Service. Called civil society organizations or nongovernmental organizations in many other countries, they include charitable, educational, cultural, and health organizations; private, family, community, and corporate foundations; religious congregations; chambers of commerce, fraternal organizations, and civic leagues; and organizations whose primary purpose is advocacy. There are more than 1.6 million tax-exempt organizations in the United States, or about double the number that existed in 1980 (Independent Sector, 2010; Panel on the Nonprofit Sector, 2007). Nonprofits accounted for about 9 percent of all salaries and wages in the United States in 2009, and more than one-quarter of adult Americans volunteered their labor (National Center for Charitable Statistics, 2009).

Most activities, most institutions, and most resources fall between the polar extremes of purely public and purely private. As a practical matter, there is no autonomous, isolated agency or activity that does not respond to, interact with, or affect others at different positions on the web depicting the public and private sectors’ reach. Consider, for example, the following: taxation and corporate decisions; business location and land use regulation; immigration, government hiring, and the labor pool; Social Security payments and consumer demand; and private producers and government purchasing.

Because public service is broader than government service, it may be useful to take a moment to think over the status of your agency or organization. Where is your agency on the web? Are you a public manager? Should public service standards and duties apply to you?

A Special Calling

Given their action orientation, savvy public managers reasonably ask, ‘‘What is the point of all the noise about public service ethics?’’ Ideally the point is to promote ethical practice and support ethical practitioners in the public service and, through that, in the larger society. Many people (that includes us) unashamedly believe that this purpose underlies most public managers’ choice

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Introduction 11

of profession (Horton, 2008). Rational managers certainly are not in public service solely or even primarily for the money; other inducements also draw them to the office.

That most in public service work to make a positive difference is a central tenet of public service lore. This so-called public service ethos is supported by hard evidence. Many public managers want to have an impact on more than their own pocketbook and ‘‘have a higher public service ethos than those employed in the private sector’’ (Rayner, Williams, Lawton, and Allinson, 2011, p. 43). The fact is that managers in the public and private sectors see their organizations (van der Wal and Huberts, 2008) and themselves and each other quite differently (van der Wal and de Graaf, 2006 – 2007, 2010). Their different ethical self- images complicate their interaction. Interestingly, some analysts of corporate management also emphasize the pull of a larger purpose as a motivating force (Pink, 2009).

For great and small matters, ‘‘May I help you?’’ could be the public service mantra. The motive of wanting to make a difference means that optimism underlies action and progress is a premier purpose. The hard part about working for the best, however, is knowing what ‘‘the best’’ is and then doing it. This is what ethics is all about.

Disabling or Empowering

Although belief in progress is a public service attribute, it does not cast public managers in the role of Don Quixote, tilting at imaginary windmills. It does not demand that managers butt their heads futilely against a brick wall. It pays, then, to begin by assessing the situation to find out what managers actually face.

The profession is animated by the dual potential of ethics to either disable or empower managers. The concern with ethics has the potential for disabling managers if it is used as a coercive control device, a tool for exploitation or intimidation, a subtle motivational gimmick, or a public relations scheme. Alternatively, the concern with ethics can empower managers by promoting ethical practices, supporting ethical managers, and reinforcing accountability. For many managers (and for us), the first set of possibilities cries out, ‘‘Stop!’’ The second signals a cautious, ‘‘Go!’’

The dual promise — the pros and cons — is hardly new. Ethics is more accurately seen as a renewal rather than a radical departure from traditional practice. In its early years, professional public administration in the United States had a strongly moralistic dimension that had developed partly in revulsion against the partisan spoils system’s blatant corruption.

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12 The Ethics Challenge in Public Service

Cynics may downgrade ethics, dismissing the whole business as a public relations scheme, an alibi, or a handy tool for attacking opponents. At the other extreme are the idealists who want to push too far, too fast. Their impassioned go-ahead usually fails in public service in the United States. But the pragmatists, who back off and go slowly, are aware that ethics proposals in public management can open the door to misuse and disillusionment or to best practices.

Public Service’s Track Record

Today’s ethics revival in public service grows out of these intellectual roots and practical experiences of public administration . It also echoes concerns in the

Public Administration’s Back Story

broader society. We acknowledge that legiti- mate public management is in fact an ethical enterprise.

What do managers do with this professional legacy? Do we just turn our backs, echoing the sentiment of a character in James Joyce’s Ulysses, who remarks, ‘‘History . . . is a nightmare from which I am trying to awake’’? Total rejection sets us up for self-contempt and the urge to throw the baby out with the bathwater. Sanctification is the polar extreme, but here we face the danger of mindlessly repeating old mistakes. That leaves a point in between, calibrated by picking and choosing in a pragmatic, reflective way.

Public service’s track record counsels a go but go-slow attitude toward ethics in the workplace. Wariness, instead of paralyzing us, can short-circuit both excessive regulations and unbridled expectations. A cautious attitude now can prevent the later repudiation that is inevitable if we set ethics up as the single cure for all managerial ills.

Three Roads to the Future

Public management practice and theory offer two often opposing routes to the goal of encouraging ethical practice and ethical practitioners in public

Two General Approaches agencies . These routes encourage differ- ent behavior, make use of different vehicles, promote different purposes, and lead in dif-

ferent directions. ‘‘When you come to a fork in the road, take it!’’ is advice attributed to baseball great Yogi Berra. We do, by following a third path that merges the other two and moves public service at slow speed in the direction of moderation and innovation.

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Introduction 13

The Low Road of Compliance

The path of compliance is a largely proscriptive, coercive, punitive, and even threatening route. This approach to ethics is designed to spur obedience to minimum standards and legal prohibitions. It is enforced by controls on the job that ordinarily aim at acceptable levels of risk, not flawless purity. John Rohr (1989, p. 60) calls this the ‘‘low road.’’ It features ‘‘adherence to formal rules’’ and a negative outlook. Along this road, Rohr (p. 63) argues, ‘‘Ethical behavior is reduced to staying out of trouble,’’ and the result is ‘‘meticulous attention to trivial questions.’’ The allure of compliance was explained several decades ago by a deputy attorney general in the U.S. Department of Justice: ‘‘In the minds of many Americans, public service, government officials, politicians, crooks, and criminal activity are inextricably mixed’’ (Burns, 1987, p. 46). Gallup polls asking people to rank certain professions by their honesty and ethical standards show that this view of elected officials prevails today, although Charles Goodsell (2004) provides counterevidence for public service.

Executive Order 13490, Ethics Commitments by Executive Branch Personnel, January 2009

A compliance perspective monop- olizes thinking about ethical behavior in many quarters, including the fed- eral government, many states and localities, and the Council on Gov-

ernmental Ethics Laws, an organization of government ethics administrators. Federal training materials for ethics officials and employees deal with behavior exclusively in terms of legally enforceable standards and as legalistic problems to be solved (by reference, for example, to the U.S. Code). Moral choice is the exclusive focus, and matters of moral judgment are ignored. Illustrating this per- spective, President Barack Obama issued strict new rules for federal employees in Executive Order 13490 on his first day in office .

In managerial terms, compliance translates into oversight and controls. When it comes to ensuring accountability, these are facts of life in the complex, highly structured, and very powerful organizations we label bureaucracy. Nikolai Gogol’s play The Inspector General is a suggestive description of a response to compliance in the field. This nineteenth-century Russian drama opens with a governor, analogous to a political appointee, announcing the imminent arrival of an inspector! Feeling threatened by impending doom, the governor relates his dream of giant, peculiar rats that sniff and sniff at everything and everyone. Any manager who has undergone an audit probably can relate to his dream.

Realistically, public managers are not about to purge compliance from government operations. Nor should they want to. Represented by administrative controls and legal sanctions, compliance is fundamental to the way the public’s

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14 The Ethics Challenge in Public Service

business is conducted. As guardians of political relationships and political goals, controls are accountability implemented. For evidence, look on your desk. Controls are ingrained in budgeting and personnel — traditional managerial functions.

The U.S. system has been preoccupied with accountability from its begin- ning. Probably the most important travel reimbursement in U.S. history is Paul Revere’s. Even as the founders were turning their backs on established authority, he duly submitted his bill in 1775 to the Massachusetts legislature for printing and ‘‘riding for the Committee of Safety.’’ George Washington’s detailed account of $160,074 in expenses incurred as commander-in-chief during the revolution was submitted to the new Treasury Department for reimburse- ment. Together they provide historical evidence of using controls to implement accountability.

The High Road of Integrity

The path of integrity is ethics in the raw. Relying on moral character, this route heads toward moral judgment; it counts on ethical managers individually to reflect, decide, and act. Integrity is a basic ethical value, not limited to public

Ethics Portal service by any means . Ethical behavior draws on appro- priate values and principles, absorbed from upbringing, philosophy, the organization, or, in John Rohr’s classical

formulation, regime values as constitutionally derived ethical norms. Individual responsibility is both a starting and an end point on the integrity route in public service. Along the route lie the normative, voluntary, prescriptive, persuasive, and the positive — but not external inducements or penalties.

Because the integrity route is noninstitutional by definition, public agencies show few signs of it. Some professional associations, including the American Society for Public Administration, take this route. Relying on persuasion and a credo (mistakenly labeled a code), they cajole members to measure up.

An approach based solely on individual integrity, as upbeat as it sounds, brings its own difficulties. It bypasses unethical behavior entirely and preaches to the believers. When reduced to simplistic do-good exhortation, it overlooks the competing claims that perplex ethical managers. By neglecting the decision- making environment and focusing exclusively on autonomous moral individuals, the integrity approach sweeps aside organizational and other influences that affect behavior. Given the reality that the organization is an important influence on an individual’s behavior, an exclusive focus on the individual operates at an inappropriate level of analysis. Perhaps more to the point, the integrity route does not seem to have worked all that well, because abuse and corruption persist.

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Introduction 15

The Fusion Road

The low road of compliance does not care that most people want to make good decisions, only that most people meet minimum standards of conduct. Integrity’s high road rejects administrative realities that stem from accountability. Both mistakenly reduce the world to two distinct categories — ethical and unethical — whereas managers cope in the gray areas of legitimate but com- peting values, principles, and duties. Neither approach alone accomplishes the purpose of spurring ethical practice and practitioners in public service.

This purpose calls for fusing the two standard approaches and moving on both fronts at once — a nonpartisan conclusion reached long ago, and often repeated but rarely implemented. So we know what we should do. Now all that’s left is to follow through. To the extent that public service has moved on both fronts, it results more from default than strategy and is more a jumble than a blending.

Public service and public employees would both be well served by manage- ment’s merging the best from the compliance and integrity roads. Such a merger fuses forces together to meet energetically the public service purpose stipulated at the start of this introduction. We use a modernistic term on purpose here: fusion. But it implies no explosion. Its futuristic orientation has roots deep in Western (and other) cultures reaching back to Aristotle’s golden mean, which defines virtue as the mean of excess and shortfall. Think of this idea in the familiar context of a balanced budget (less familiar, of course, in the federal context than others), where the good outcome falls between excess surplus and deficit; any other outcome signals trouble.

This is the path of moderation, adaptation, and compromise; it works through phased innovation on both compliance and integrity fronts and at a slow pace. It focuses on public service’s goals, along with its problems. A two-pronged, systematic approach accomplishes this by incorporating both compliance with its formal standards and the promotion of individual ethical responsibility.

There is no parade with an intoxicating drumbeat along this road. When public management jumps on the latest management bandwagon, the ancient virtue of temperance is heavily devalued. Ethics demands informed reflection and individual judgment; ethical managers are counted on to make sober decisions. Public service is too important to be swept up in the carnival atmosphere of the hottest fad, where reaching for the golden ring sabotages the golden mean.

Thinking It Over

1. What do you believe is the link between ethics and power? 2. Why does the move to a multisectored (as compared to government-centered)

public service present distinct ethical challenges?

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16 The Ethics Challenge in Public Service

3. Describe how you see the low road, high road, and fusion perspectives working in government.

4. This chapter argues that ‘‘ethics is about having an independent place to stand.’’ What does this statement mean?

5. Use the Internet to identify how at least three governments, civil society organizations, or international bodies (such as the United Nations) have tried to address the tie between good governance and good ethics. (For some useful sources, see Additional Resources for Each Chapter and Companion Web Site Resources for Chapters Eight and Nine.)

Companion Web Site Resources

• Additional Resources for Each Chapter • Artistic Expressions of Good and Bad Government • Cutbacks and Priorities (Exercise) • Ethics Portal (Photo) • Executive Order 13490, Ethics Commitments by Executive Branch Personnel • Galactic Collision (Photo) • Public Administration’s Back Story • Two General Approaches

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PART ONE

ETHICAL DUTIES OF PUBLIC MANAGERS

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Y CHAPTER ONE

WHAT IS IMPORTANT IN PUBLIC SERVICE?

Examining ethics and the profession, Part One argues that ethics and genuineprofessional success go together in public service. It is the job itself — the ambiguous, complex, pressured world of public service — that presents special problems for people who are committed to doing the public’s work and who want to do the right thing. Facing up to the ethical demands on public managers starts with biting the bullet: public service ethics is different from ethics in private life. The reason is that democracy is sustained by public trust — a link forged by stern ethical standards and expectations. This chapter concludes with a diagnostic exercise and a case study that highlight the contending values and cross-pressures in everyday judgment calls.

Public managers’ identity and capacity for decision making and innovation are entangled in ethics, and rightly so, because public service is an instrument for managing our society’s complexity and interdependency. The concern with ethics and demands on managerial responsibility extends beyond academic halls to government corridors, public interest groups, and professional associations. Much of the action in the past forty years — for example, the race by many jurisdictions and professional associations to adopt or tighten ethics codes — has translated into new challenges for public managers. Public expectations and formal standards today demand that managers undertake sophisticated ethical reasoning and apply rigorous ethical standards to decisions and behavior.

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20 The Ethics Challenge in Public Service

Why Me?

Ethical concerns target public managers for three main reasons. First, ethics is important in its own right. Second, having public power, authority,

Public Service Poster and accountability in a democracy in effect means that the public service’s smooth function- ing depends on trust . The third reason is the

widespread public perception that public service generally falls short of the higher standards of behavior that the public demands.

Need for Public Trust

If there is anything unique about public service, it begins with the idea that public service is a public trust. This idea can be traced back in the United States at least to colonial times and is the first item in the federal Principles of Ethical Conduct for Government Officers and Employees, first issued by executive order in 1989. It also can be identified at other times and in other cultures. More than a decade ago, for example, the Organization for Economic Cooperation and Development (2000a) declared, ‘‘Public service is a public trust . . . Fair and reliable public services inspire public trust. . . . Public service ethics are a prerequisite to, and underpin, public trust, and are a keystone of good governance.’’ A coalition of nonprofits and philanthropies, The Independent Sector (2004) agrees: ‘‘As a matter of fundamental principle, the nonprofit and philanthropic community should adhere to the highest ethical standards because it is the right thing to do. As a matter of pragmatic self-interest, the community should do so because public trust in our performance is the bedrock of our legitimacy.’’

Public agencies rely on trust for the ability to govern effectively through voluntary compliance. Most citizens in democracies prefer compliance over compulsory obedience. All mainstream segments of the political spectrum in the United States share this preference. They assume that ethics, trust, and government power are linked. President Ronald Reagan affirmed his faith in this proposition in 1987 by declaring, ‘‘The power of the presidency is often thought to reside within this Oval Office, yet it doesn’t rest here. It rests in you, the American people, and in your trust. Your trust is what gives a president his powers of leadership and his personal strength’’ (Reagan, 1987).

Broadly speaking, trust is defined as the expectation of right behavior. Different analysts add different shadings to what trust means in public service. For some, trust refers to the public’s belief that activity in the public sector will promote shared values and interests and respond to public needs (Newell,

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What Is Important in Public Service? 21

Reeher, and Ronayne, 2008). In another version, ‘‘Trust is the expectation that arises within a community of regular, honest, and cooperative behavior, based on commonly shared norms, on the part of other members of that community’’ (Francis Fukuyama, quoted in Rheault, 2007). A third formulation takes a relational view founded on reciprocity and mutual interdependence: ‘‘Trust exists when one party to the relation believes the other party has incentive to act in his or her interest or to take his or her interests to heart’’ (Cook, Hardin, and Levi, 2005, p. 2). Notice that these different definitions all turn on belief, mutuality, and predictability.

Trust involves thinking, emotion, and behavior, and trust applies to relation- ships among and expectations about individuals and formal institutions. People’s trust may not even always be directly tied to personal experience. A 2009 Gallup poll found that trust in one’s neighbors varies with income, education, race, and age but not gender (Pelham and Crabtree, 2009).

Intensifying value conflicts contribute to the erosion, recognized years ago, that has been dubbed the confidence gap. This came to symbolize a pervasive erosion of trust and confidence in government and public institutions, paralleling attitudes toward all institutions (Lipset and Schneider, 1987). The public assessment is that perceived wrongdoing plagues society, from corporate corridors to city halls, from academia to the media, and from churches to popular charities. No segment is immune.

Public trust in government started its downturn in the early 1960s. Figure 1.1 shows that public trust continued its plunge through the 1970s and the events of Watergate. In August 1974 an incumbent president, Richard M. Nixon, resigned for the first time in American history. The negative spirit, which President Jimmy Carter dubbed ‘‘moral malaise,’’ continued. The celebrated turnaround in the early years of the Reagan administration was modest compared with the earlier, steep decline, and ultimately many high-level officials left the Reagan and following administrations under an ethics cloud. Every U.S. administration since Harry Truman has run, at least in part, on cleaning up the ethics mess of its predecessor.

Shrill partisanship, divided government, widely held beliefs about corruption and the triumph of special interests, and increasing complexity and risk, coupled with perceptions of deceasing governmental capacity, have all played a part in diminishing trust over the past several decades. The part that individuals’ widely publicized fancies and foibles played is less clear.

Trust in government declines during economic downturns and climbs during economic growth. Perhaps this explains why the impeachment of President Bill Clinton did not jolt the general direction of the trend shown in Figure 1.1. Public trust seems to be related to general optimism. The Pew Research Center

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22 The Ethics Challenge in Public Service

FIGURE 1.1. PUBLIC TRUST IN GOVERNMENT, 1958 – 2010

80 P

e rc

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20101960

1970 1980 1990 2000

Note: From 1976 to 2010, the trend line represents a three-survey moving average with individual data points shown.

conducted major studies of public opinion and trust (or, more accurately, distrust) of government in 1997 – 1998 and 2010. Its conclusion is that ‘‘there is no single factor that drives general public distrust in government . . . There is considerable evidence that distrust of government is strongly connected to how people feel about the overall state of the nation’’ (Pew, 1998, 2010a).

The decline of public trust, coupled with scandal in places high and low, catapulted ethics onto the national political stage but not to center stage. Public and media attention to ethics tends to be scandal driven and short-lived. National Gallup polls have long asked, ‘‘What do you think is the most important problem facing this country today?’’ From April 1990 on, usually less than 10 percent of respondents answered with some variant of an ethical issue. Given the circumstances surrounding presidential impeachment, it is not surprising that responses peaked in excess of 15 percent in 1998 and then returned to their usual level. More recent responses ranged from a high of 6 percent in March 2006 to a

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What Is Important in Public Service? 23

low of 3 percent in March 2011. Similarly, the Harris polls for 1997 to 2010 show that ethics, integrity, and values are on the front burner for very few citizens. These data suggest that when the noise of scandal subsides, our attention turns to business as usual, meaning concerns such as jobs, prices, and national security.

Although government in the abstract generally is mistrusted by the American public, a trust deficit does not necessarily describe all U.S. governments. Although Americans expressing a ‘‘great deal’’ or ‘‘fair amount’’ of trust in their state governments fell to a low of 51 percent in 2009 (down from 67 percent for 2004 to 2008), this low still represents a majority (Jones, 2009a). Trust in local government remains stable, with about 70 percent of respondents to Gallup polls admitting to some level of trust since the beginning of this century. Pew surveys (2010a) find a rise in the percentage of people saying that all levels of government have a negative effect on their daily lives. Federal and state governments’ positive ratings fell below majority levels over the years from 1997 to 2010. A declining majority (64 percent in 1997 versus 51 percent in 2010) sees local government’s impact as positive. The fact that most ethical fouls in the United States occur at the local level is simply a matter of arithmetic: most governments, officials, and employees are local.

State of Moral Values in the United States, 2002 – 2011

We tone down our response to polls and headlines by allowing for the political mileage gained by moaning about moral decay. It is a favorite pastime. Usually only

a minority of Americans are content with the moral and ethical climate in the country and the great majority is dissatisfied (rating as ‘‘poor’’ or ‘‘only fair’’) on Gallup’s polls from 2002 to 2011 .

Yet one must admit that the overall level of trust in government nationwide suggests that citizens believe that much has gone wrong.

Global Glance

Governments and other authoritative institutions around the globe also face a confidence gap. A 2008 survey in nineteen nations with 59 percent of the world’s population (World Public Opinion, 2008) found that

most publics expressed low levels of trust in their government to do what is right and this low trust appears to be related to the perception that governments are not being responsive to the will of the people . . . Interestingly, publics rated their governments as poor in all of the western democracies. Majorities say they trust their government only some of the time or never in Britain (67 percent), France (64 percent), and the United States (60 percent).

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24 The Ethics Challenge in Public Service

The United Nations issued its Vienna Declaration on Building Trust in Government in 2007. Its preamble states, ‘‘Today, building trust in government is a worldwide concern. When people do not see themselves and their interests represented by their political leaders and their government, trust is compromised and the general public interest is undermined.’’

Honesty, Integrity, and Competence

The public regularly gives poor marks to elected political leaders in general on ethical dimensions such as honesty and integrity. Career public servants probably are painted with the same brush. There simply are not enough hard data to separate confidently the public’s assessments of elected officials from ratings of public managers and evaluations of public managers in state and local service from those in federal service. Data only infrequently focus on career professionals. For example, Gallup’s polls asking about the honesty and ethical standards of selected professions do not distinguish among levels of government, and these polls include only a few public service professions.

The wording of some questions may draw out responses about competence rather than trustworthiness. As a result, the data may reflect the public’s perceptions about efficiency and competence rather than trust. The Pew Research Center’s study presents the public’s general assessments of performance for different levels of government (2010a). The study does not mention satisfaction with actual interactions with public agencies, which often projects a very different picture (Goodsell, 2004). These problems highlight the care that is needed in interpreting public opinion surveys.

Public confidence in and experience with the ability of government to perform and handle problems are judgments about competence, a matter different from judgments about ethical behavior and trustworthiness. Yet many citizens and commentators believe that public perceptions about trust and competence are related. A 2006 U.N. report on Nigeria’s justice system ties the two together: ‘‘By far the most harmful and destructive effects of corruption are on the rule of law, in particular when the efficiency and effectiveness of the criminal justice system, which should be seen as the epitome of integrity, are undermined’’ (United Nations Office on Drugs and Crime, 2006, p. 1). The follow-up report does the same (United Nations Office on Drugs and Crime, 2010). A U.S. study found ‘‘higher perceptions of trust in cities where there are higher perceptions of ethical behaviors’’ (Feldheim and Wang, 2003 – 2004, p. 63).

In February 2011, during a severe budget crunch at all levels of government and battles over public employee unions in several states, 42 percent of respon- dents to a national survey said they felt very or somewhat positive toward federal

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What Is Important in Public Service? 25

employees, and 47 percent expressed a positive feeling toward state and local government employees (NBC News/Wall Street Journal, 2011). The survey did not probe the reasons behind the responses. Was it perceptions about ethics, competence, or perhaps a relative or neighbor and knowing the human face of government? Because public trust is believed to be related at least in some part to public perceptions of ethical practice, energies shift to improving the ethical practice, posture, and reputation of public service.

Higher Standards

Fundamentally there is an ethical core to public service. Given the power, resources, and uneven sharing of benefit and harm in public life, we cannot afford to lose sight of what is right.

The nobility and burden of public service is this: the public expects public service to operate on a higher ethical plane than other activities do. The standards are higher in public service than those associated with personal morality or with the private sector. In addition, the public insists that public servants conform more strictly to the standards.

The Latin word virtu, which means excellence, summarizes the demands made on those in public service by public opinion, philosophical tradition, historical experience, and professional identity. The interaction of trust, confi- dence, and governmental integrity is evident in law and regulation in the United States and other countries. It is conspicuous in governmental codes around the world, and world public opinion mirrors it. It is written into professional standards, and public sector professionals write it into their codes.

Values in Public Service

An ethical value is a deeply held belief about right and wrong action and a gauge of what is important. Another useful definition holds that values are ‘‘judgments of worth that guide decision-making and action’’ (van der Wal and de Graaf, 2006 – 2007, p. 51). As ideals held dear (or valuable), ethical values are yardsticks for ethical behavior that draw on both emotion and reason. But not all values are ethical values, and particular values are not necessarily associated with ethical behavior.

Some are virtues — the habits of ethical action embedded in moral char- acter that underlie ethical behavior and translate abstract, ethical values into customary, observable behavior. Virtues are labels for behavior that needs no justification but is widely considered admirable in its own right. Many ancient

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26 The Ethics Challenge in Public Service

traditions stress personal virtue, and Plato wrote of four: courage, wisdom, justice, and moderation. In Buddhist teachings, ‘‘Good men and bad men differ from each other in their natures . . . Wise men are sensitive to right and wrong’’ (Bukkyo Dendo, 1987, p. 264). In Exodus 18:21, Moses’s father-in-law advises Moses to form his ‘‘management team’’ for the desert trek this way: ‘‘Provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers.’’

Some values are so widely shared that they underpin behavioral norms, or standards or rules specifying proper conduct in certain circumstances. Yet widespread agreement on a norm does not necessarily translate into general obedience to it. For example, more than 92 percent of respondents in Gallup’s 2010 national poll agreed that adultery (‘‘married men and women having an affair’’) is morally wrong. This behavior topped the list among the sixteen different behaviors polled (Saad, 2010; as a point of reference, note that sex between an unmarried man and woman was judged as morally wrong by 38 percent of the respondents; two CBS News/New York Times polls in 2009 reported 32 to 37 percent answering that sex before marriage is wrong). Other polls show similar results: that fidelity is a widely shared ethical value. Yet if we add surveys on sexual behavior to media reports about adulterous politicians, entertainers, and sports celebrities, violations of the norm are obvious.

Because not all values are ethical values, observers of the managerial scene draw up their own rosters of essential values and virtues. A roster may relate to generic modern management, focus specifically on public sector management, or center squarely on democratic ideals. In the democratic mode, Stephen Bailey, an influential figure in twentieth-century public administration, selected optimism, courage, and ‘‘fairness tempered by charity’’ (1964, p. 236). The list has gotten longer since his time. For public administrators, ASPA’s Code of Ethics emphasizes serving the public interest, legal compliance, personal integrity, impartiality, transparency, competence, the values on Bailey’s list, and still others. The Independent Sector (2004) lists ‘‘commitment to the public good’’ and ‘‘accountability to the public’’ as the first two in a set of nine values.

Principles are values with an action component. The Preamble to the U.N. Convention Against Corruption specifies ‘‘the principles of proper management of public affairs and public property, fairness, responsibility and equality before the law and the need to safeguard integrity and to foster a culture of rejection of corruption.’’ Great Britain’s Seven Principles of Public Life in Chapter Nine outline another set of principles.

Are public management’s typical values different from the values in business management? The answer is important because of the historical and current influence of business management and techniques on public administration.

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What Is Important in Public Service? 27

The idea that the values associated with public service are different from those common in business is embedded in our political culture. Whether this view condemns public service for inefficiency or condemns business for personal profit depends on the historical period and political climate. In The Shame of the Cities (1904), the influential muckraker Lincoln Steffens wrote, ‘‘The commercial spirit is the spirit of profit, not patriotism; of credit, not honor; of individual gain, not national prosperity; of trade and dickering, not principle’’ (p. 7).

The answer also helps to clarify dominant values in the public sector. This very question assumes that the realm of work can be separated from and is different from the personal sphere, the type of organization affects ethical norms, and people sort or compartmentalize the values relevant to a particular setting. Some readers may respond that the same moral standards and ethical values apply to all people in all organizations all of the time. Other readers object: the differences are trivial compared to the weight of the core similarities.

Empirical evidence now provides some answers. One study of executives in the federal government and in business found that the values are different (Posner and Schmidt, 1996). A more recent examination of organizational decision making in the Netherlands lays out the different views and also finds a good deal of overlap in organizational values (Van der Wal and Huberts,

Values Defined 2008). The public sector features impartiality and ded- ication, while profitability and efficiency characterize business organizations.

We see that the traditional value pattern of public administration persists. Accountability, rule of law, impartiality, truthfulness, and similar values dominate. This raises questions about the argument put forward by Van Wort (1998) and others that long-established public sector values and business values are converging because of the influence of either the New Public Management (NPM) or postmodernism.

Some public sector scholars and practitioners argued that NPM really means transforming the value set customarily associated with the public sector (Kolthoff, Huberts, and van den Heuvel, 2007). The NPM draws on W. Edwards Deming’s (1982) Total Quality Management and David Osborne and Ted Gaebler’s (1992) Reinventing Government. NPM calls for a transformation of management priorities, style, and relationships. It is based on a customer-service model in which the values of customer satisfaction, efficiency, effectiveness, and innovation or risk taking (entrepreneurship) rule. They rule, some argued, by underplaying the conventional but still vital values in public administration such as accountability and the constitutional basis of public administration.

Postmodernism means a far-reaching reappraisal of modern assumptions about culture, knowledge, identity, and more. As a critique of the modern fixation

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28 The Ethics Challenge in Public Service

on the scientific method and its notion of objectivity, the idea generally means that so-called realities are social constructs, as are categories and classifications. Implying profound change for the workaday world, postmodernism ‘‘is marked by a blurring of public and private lives as well as an increasingly fine line separating the three economic sectors [public, private, and nonprofit]. As a result, the ethical rules that apply to different facets of life and work are being challenged, necessitating a rethinking of the moral boundaries and rules governing professional behavior’’ (Schultz, 2004, p. 279).

Evidence from the World Values Survey points to value changes in post- modern societies generally. There is no reason to expect that public and business managers are immune. Ronald Inglehart and Christian Welzel (2005) found that many core values are linked and therefore can be shown along two dimensions of cross-cultural variation: the traditional versus secular-rational values and sur- vival versus self-expression values. At low values, the two dimensions share an emphasis on human constraint, compared to the emphasis on human choice at the high values on the dimensions (Welzel, 2006; Inglehart, 2009).

With the long list of values that has accumulated over thousands of years, it is hardly surprising that the relative importance of particular values rises and

Frequently Stated Core Public Service Values in OECD Countries

falls. The OECD points to value change in the first decade of the twenty-first century . Almost twice as many governments identified transparency as a core value in 2009 compared to 2000.

The consensus is that particular values are of special concern in public service. They are part of the answer to the question, ‘‘Why me?’’ These values support principles of action that distinguish public service from other work environments. Although this is easy to say, it is difficult to do; there are so many values, principles, duties, and rules.

Figure 1.2 captures the more prominent values and the actions that the values trigger. We limit the foundational values to five for easy recall: account- ability, impartiality, justice and fairness, doing good, and avoiding doing harm. Accountability is at the top, to highlight the value that is especially critical in a democracy. To our mind, these five flow logically from the definition of public servants as temporary stewards of public authority.

A public servant is a fiduciary or temporary steward of public power, resources, and trust. As such, public servants exercise public power and authority. Their positions are neither theirs to own nor to keep. For our purposes, the meaning of stewardship is to preserve the value of an asset, community, or interest over time and safeguard the public’s interests, along with future choices and oppor- tunities. ‘‘Value’’ here is thought of in broad terms and refers to more than

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What Is Important in Public Service? 29

FIGURE 1.2. CORE VALUES AND ACTION PRINCIPLES

Accountability

Avoid Doing Harm Do Good

Justice and Fairness

Avoid conflict

of interest

Seek inclusion

Be objective

Pursue the

public interest

Comply with law

Impartiality

Seek procedural

and substantive

justice

Seek fair distribution

of public

benefits

Employ empathy

Give affirmative help

Provide remedy or relief

Use moral imagination

Temporary Steward

Accountability

Avoid Doing Harm Do Good

Justice and FairnessImpartiality Temporary Steward

Reject incompetence

Seek efficiency

Seek effectiveness

Take responsibility for what is done and how

Facilitate transparency

Listen; be responsive

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30 The Ethics Challenge in Public Service

financial value. A more formal definition of stewardship is ‘‘the willingness and ability to earn the public trust by being an effective and ethical agent’’ and ‘‘signifies the achievement of both effectiveness and ethicality’’ (Kass, 1990, pp. 113, 129).

Each of the five values is bedrock — a foundation for principled action by the temporary steward — and together they represent the common core of public service. This approach calls on Aristotle’s ‘‘mean’’ in which balance is sought among seemingly incompatible values or priorities. The values are moderated by the multiple duties operating together in an interaction that triggers derivative values such as prudence and temperance. For example, doing good (or beneficence) is moderated by justice/fairness and accountability. Calling for taking care of the dependent and vulnerable, doing good is constrained by law and agency mission. Justice and fairness are bundled together because the distinction is variable and the two terms are often used interchangeably.

Figure 1.2 presents the five core values and seventeen ethical principles or guides to ethical action. These ‘‘intermediate-level concepts’’ (Bebeau and Thoma, 1999) are relatively concrete applications to day-to-day activities on the job. They are the middle ground in a three-tiered construct and fall be- tween the highly abstract (see the discussion of Kohlberg in Chapter Six, for example) and specific standards of conduct (Chapter Eight).

The many actions in Figure 1.2 necessarily depend on the virtue of courage to move theory into practice. Effectiveness (assessed relative to the agency’s mission) and efficiency are shown as ethical because of the understood or spoken promise to serve as stewards of public resources. So too is competence, based on the promise to do the job for which one is hired. Transparency is listed under accountability because it is a means of achieving external accountability.

The fundamental ethical prescription to do no harm is not enough in public service; rather, the public servant is directed to do the right thing in the right way. Admittedly, sometimes the action principles may seem to demand moving at the same time in different directions. When this happens, priorities and judgment kick in to move the decision maker toward creativity and leadership.

Figure 1.2 should not misdirect us into rigidity. The point is to reflect on the many demands made on public servants, not to fix them in place for all time and for all of public service. Readers are invited to participate by selecting the core values that are most important to their own understanding of public service and then use them to reconfigure the graphic. Figure 1.2 helps us see how reasonable, ethical people may arrive at the same place or understand how people may get to different places. There is no predetermined primacy, and this is less a prescription than a discussion.

Why not select a single roster of ethical values? A short list — plain dealing and direct — would be more compelling and maybe more appealing. But it

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FIGURE 1.3. ETHICS IMPOSED

Source: Glenn and Gary McCoy. Reprinted by permission of Cartoonstock.com

also would impose an authoritarian, even imperial stamp that contradicts the very meaning of ethics (see Figure 1.3). The answer lies in what ethics itself is all about:

• Ethical action is in part reflective, based on thought and reason as well as emotion.

• Ethical action is principled and draws on sound values. • Ethical action means making normative judgments, and that means choice.

The Trouble with Values

People are not required to be consistent, so their values do not necessarily fit together. Values also may not be identical across different policy areas. Also, priorities among values change, responding at least in part to the current problems and discontents that people face.

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32 The Ethics Challenge in Public Service

Where ethics and government are concerned, variation, change, and incon- sistency characterize public views. The majority opinion in the United States for much of the past decade has favored governmental activism on behalf of promoting ‘‘traditional’’ values. Yet many citizens call for a reduced role for government and complain about government’s intrusive and negative impact on society, the economy, and citizens’ lives. Although many Americans judge government to be ineffective, almost three-fifths indicate that its policies have a ‘‘significant effect on the moral values’’ (Gallup, 2006). Many Americans also want the very government that they distrust to take an active role in promoting what they call ‘‘traditional’’ values (Saad, 2011b.).

The Meaning of Moral Values Values may be associated with moral

character or policy choices. For better or worse, language lacks the precision of

mathematics. As it turns out, most Americans mean the moral character of the candidates when they say that ‘‘moral values’’ are a very important factor in their deciding how to vote. A candidate’s character (truthfulness and integrity, for example) is important to a large majority of the public, but this does not necessarily imply support for or opposition to particular policy positions (Harris Poll, 2008) . Because analysts and pundits often mean the issues and policy choices, experts and ordinary citizens may talk right past each other.

For Adults Only

The hallmark of a mature adult is the capacity to tolerate ambiguity, uncertainty, and complexity — not necessarily liking it, mind you, but just tolerating it. This is the decision-making context of public service, and it demands ethics, maturity, a solid sense of self, and a receptive frame of mind. The case at the end of this chapter illustrates these points.

Competing Ethical Claims

Rival claims devour a public manager’s time, attention, and loyalties. Competing values and duties in modern life pull everyone in different directions, and physical mobility disrupts ties that once upon a time lasted a lifetime. Ask the multitasking city manager or the ranger for the National Park Service who gets transferred from Yellowstone to the Statue of Liberty. Competing values are an inescapable feature of public managers’ workaday world. The Internet, smart phones, and other technological comforts let competing demands invade every arena, every moment. These pressures can fragment thinking and even

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shatter undisciplined managers who exercise no selectivity about what needs their attention.

Discriminating discipline is imposed by the manager’s priorities; they specify what is important to attend to and when. Choices among priorities and re- sponsibilities are made with an eye to roles — the sources of operative ethical responsibilities — that define one’s own behavior and that of others in different circumstances. By contrast, the acknowledged driver in business is the bottom line: a business either makes a profit or it does not. The public sector’s multiple bottom lines are far harder to measure than profit. To complicate matters further, blurred boundaries and intermingled activities are reconfiguring the public sector’s new reality.

Different perspectives stress different ideas and responsibilities, but all feature many varied roles and responsibilities. More than three decades ago, Dwight Waldo (1981) encompassed just about all of them in his unranked catalogue of twelve spheres of ethical claims on the public servant: the U.S. Constitution; the law; the nation, country, or people; democracy; organization-bureaucratic norms; profession and professionalism; family and friends; self; middle-range collectivities such as class, party, race, union, interest group, and church; public interest or general welfare; humanity, world, or future; and religion or God.

Right at Ground Zero This is a lot to absorb all at once, and an

analytical handle may be useful. Michael Har- mon’s ‘‘theory of countervailing responsibility’’

organizes opposing aspects of administrative responsibility into three types: the political, professional, and personal. ‘‘Action that is deemed correct from the standpoint of one meaning might very well be incorrect or irresponsible from the standpoint of another’’ (1990, p. 154). Therefore, tension is built into administrative life . Harmon (p. 157) defines each type:

• Political responsibility: ‘‘Action that is accountable to or consistent with objectives or standards of conduct mandated by political or hierarchical authority.’’

• Professional responsibility: ‘‘Action that is informed by professional expertise, standards of ethical conduct, and by experience rooted in agency history and traditions.’’

• Personal responsibility: ‘‘Action that is informed by self-reflexive understanding; and emerges from a context of authentic relationships wherein personal commitments are regarded as valid bases for moral action.’’

Competing claims and interests are inevitable once the public service role is defined as distinct and different from other roles. The distinction — the separation itself — is what induces conflict. Formed in 1894 to promote government reform,

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the National Municipal League (now the National Civic League) recognized this years ago: ‘‘Having a conflict is not, in and of itself, evil, wrong or even unusual. Conflicts may be ethnic, cultural, emotional, nostalgic, regional, financial or philosophical’’ (Weimer, 1990, p. 16). This realistic perspective suggests that we also take just as realistic a look at the many-sided public managers who live a rich, complex life and enjoy job, family, friends, community, and other attachments.

The Ethical Claims of Five Different Roles

Figure 1.4 lays out the five primary clusters of roles with which managers cope. When using this figure to assess the roles you play and the seriousness of competing ethical claims, avoid a simplistic trump; although there may be strong reasons for opting for one role over another, they need not be ethical reasons. A role defines the capacity in which the public manager is acting and the behavior suitable to it. Each role signals different bundles of concerns, values, and behavioral norms, and each is marked by a mix of ethical claims, or duties. Some duties are responsibilities, meaning self-imposed, voluntary, and informal. Other duties are obligations that are formal, externally imposed, and enforced through legal or other sanctions. The fact that both types of claims confront managers evokes the enduring distinction between law and ethics. Responsibilities tend to be broad, even diffuse; obligations, if only for enforcement purposes, tend to be narrow and clearly defined.

The personal role involves self, family, personal beliefs, and community affinity and is the stuff of daily life and emotional bonds. Although its ethical claims are self-imposed, they are still typically compelling. Sometimes this personal role is conceived as an arena protected from intrusion, regulation, or scrutiny and so is confused with ‘‘the private’’ and privacy. This confusion breeds misunderstandings about role boundaries. To illustrate, President Chester A. Arthur is quoted as saying, ‘‘I may be president, but my private life is nobody’s damned business’’ (Hochschild, 1998, p. 76).

Although many Americans value privacy and stress the informal responsibil- ities associated with the personal role, the equation of personal and private simply

Public? Private? Examining the Theory

does not hold up historically or today . Individual, familial, and community

obligations have long been written into law and backed by serious sanctions, from

the ancient Code of Hammurabi and the Book of Leviticus through today’s inheritance, divorce, child abuse, right-to-die, and other laws.

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FIGURE 1.4. ROLE DIAGNOSIS

Personal/Family/ Community

Professional/ Work Identity

Agency/Job

Jurisdiction/ Citizen

Humanity/ Sustainability/ Legacy

Public Service

Pr ior

ity

Re ac

Roles

DutiesResponsibility Self-imposed,

informal, voluntary

Obligation Externally imposed, formal, sanctioned

➞ Begin by assessing the roles you play and the seriousness of competing ethical claims. ➞ A role defines the capacity in which one is acting and the behavior befitting it.

➞ No simplistic trump, please; while there may be strong reasons for opting for one role over another, they need not be ethical reasons.

Credit: Graphic by Brian Baird Alstadt.

By comparison, the bundle of claims evoked by one’s part in humanity is more abstract, by definition more inclusive, usually self-generated, and often less forceful. Figure 1.4 illustrates the reach or scope of duties as inversely related to their priority and depicts the typical pattern of behavior: the more immediate and personal claims are more compelling (or salient to behavior).

This line of reasoning emphasizes the distinction between the formal obli- gations imposed by virtue of working in public service and the responsibilities customarily associated with roles outside the profession, agency, or jurisdiction. Figure 1.4 depicts public service as potentially including all but the personal domain.

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Public service has trended toward transforming responsibilities into obliga- tions and obligations into legal requirements through the adoption of enforceable standards of conduct. A public service role often is associated with legal obligations, in the sense that minimum claims are specified in written rules and enforced through legal or administrative provisions and penalties. Com- monly formalized through accountability mechanisms, serving the public interest and legal compliance are central and customary, but by no means the only ethical duties in public service. Some professional associations, such as the International City and County Managers Association and the American Institute of Certi- fied Public Accountants, self-police members’ adherence to formal obligations; other associations, such as the ASPA and the Government Finance Officers Association, reject enforcement while articulating relatively broad duties.

Given the differences between public service and other roles, as well as among ethical claims, conflicts are bound to turn up the pressure. Each of the five primary role clusters has numerous facets, and all five are interrelated, sometimes directly and other times filtered or mediated through intervening claims. The many different parts we play in our daily lives create many responsibilities and obligations. Do these different roles — child, parent, spouse, sibling, friend, neighbor, taxpayer, employee, public servant, citizen, and patriot — apply to you? Do they make different claims on you? Do these claims sometimes conflict? For example, did you ever have to be in two places at the same time? How about the face-off between an emergency at work and your child’s game you promised to watch?

Although public leaders cannot reasonably be required to abandon other relationships and affiliations, they nonetheless are obliged not to use public positions to serve their personal role. This is what conflict of interest is all about. For example, being a parent does not make hiring your child (nepotism) right; owning a business does not wipe out obligations to the town. The separation of public from personal life in modern organizations reinforces a central ethical duty to avoid conflicts of interest that injure or appear to undercut independent, impartial, objective judgment. (The positive version of this is to serve the public interest.)

Following the trail of attachments and commitments to their primary source helps us to understand and meet different claims. For this reason, Figure 1.4 is a tool for role diagnosis. Role diagnosis stands guard against conflicts of interest. This tool asks, ‘‘What hat am I wearing?’’ and ‘‘What are my obligations?’’ It is a good first cut into a dilemma. But beware! Role diagnosis is too crude to be used alone. Ethical problems are not solved by a simple-minded winner-takes-all approach. One role may not automatically and thoughtlessly cancel all the others without seriously damaging them.

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Getting It All Together

Evidence of the strains caused by vying claims is all around us, especially when it comes to family. Sura IV of the Quran (iv. 1 – 14) opens with an appeal to the unity of mankind and respect for mutual rights; it goes on to speak of sacred family relationships and their implications for rights, property, and inheritance. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, as ‘‘a common standard of achieve- ment for all peoples and all nations,’’ identifies rights and responsibilities on many levels: the individual, family, community, society, state, and humanity. According to Article 16(3), ‘‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’’ Clashes are predictable with Article 29(l), which declares, ‘‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’’

Our thinking about ethics often lags behind social realities. ‘‘We are still . . . thinking in terms of a society in which organizations are rather small and weak, and in which the family is the dominant institution’’ (Kenneth Bould- ing, quoted in Boling and Dempsey, 1981, p. 13). Although the family remains a forceful institution in the United States, extended families, tribes, and even nuclear families are no longer the sole or even dominant relationship in which one lives one’s full life. The market economy, physical mobility, geriatric medicine, and other developments have seen to that. Other institutions, relationships, and roles exert a strong pull on modern managers, who must find a way through the maze of competing claims and loyalties or be immobilized.

No Simple Override

Fixing exclusively on a single value or role-generated ethical claim is a simple way out. But this fix may do serious damage to excluded contenders. One value or duty rarely trumps another. There is danger in justifying an action in the name of a greater good or higher authority rather than taking action for the sake of that purpose. The first invokes authority in order to empower the doer and fails to distinguish the deed done from the good being sought. The second pursues the good by exercising its spirit. Doing your duty with public power behind you is heady enough.

Personal Integrity

The tensions aroused by competing ethical claims can jeopardize personal integrity, that is, keeping oneself integrated and whole, in balance, and ethically

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sincere. The core of personal integrity is ethical values, not self-indulgence. Supporting authentic, unbiased convictions — holding the high ground — is a measure of a manager’s skill and character. It also is widely praised. A manual for local administrators — magistrates in seventeenth-century China — advises, ‘‘An official’s first consideration is maintaining his integrity’’ (Huang Liu-Hung, 1984, p. 141).

To genuinely live up to the duties reflected in Figure 1.2 is to exercise integrity as an ethical steward in public service. ‘‘The ideal of personal integrity describes a condition where individuals can hold multiple realms of judgment in tension while keeping some coherence in their actions and lives’’ (Dobel, 1990, p. 355). Integrity is more like a web than a hierarchical structure, which is ‘‘too static and rigid to account for the way individuals live their lives and keep moral coherence’’ (Dobel, 1990, p. 355).

Integrity is tested by realities. Uniform or static perspectives do not help public managers keep their integrity. Instead, integrity requires principled flexibility under fluid circumstances. We are left with ambiguity and choice, which is precisely the point of ethics. The normative rules of ethics help us make choices that demand the exercise of reasoned judgment bolstered by intuition (gut feel) and emotion.

Ethics, Democracy, and Professionalism

Professional public administration in the United States is more than a century old and, over that time, it has adapted to new demands, adjusted to new truths (social, economic, organizational, and technological), and absorbed new values. By way of example, turn to the U.S. Constitution, and compare the dissonant definitions of what is fair in the Fourteenth Amendment (equal protection clause) and the Sixteenth Amendment (income tax). In the former, fair means treating everyone identically and in the latter, it means treating people in different circumstances differently.

Diagnostic: What Shape Are We In?

Today’s public service is a mix of often clashing values and the action principles they underwrite. All operate at the same time and in tension with one another . Because public

managers — and services and policies — cannot and should not swing like a pendulum from one to the other, they daily find themselves reconciling the values and balancing the claims.

A public position itself is ethically neutral — used for good or bad, right or wrong — until people use it — or abuse it — for something other than solving ‘‘people problems’’ and meeting the mission. To the question, ‘‘What is important

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to an ethical public manager?’’ we propose three core answers: ethics, democracy, and professionalism. These combine to protect and promote individual and institutional integrity. Exhibit 1.1 lists the many values and virtues associated with each.

EXHIBIT 1.1 D + P + E = Iii

Integrity — individual and institutional

Authentic, sincere, genuine, sense of being whole and intact

Democracy

Justice, impartiality, truth (accountability, disclosure), liberty, equity, citizenship (informed participation), responsiveness, transparency, accessibility

Professionalism

Merit, impartiality, competence, quality, self-awareness, self-understanding, esteem (honor, reputation), responsibility (self-policing)

Ethics

Values and virtues, principles and duties, judgment and responsibility

The point here is to reflect on the many demands made on public managers, not to fix them in place for all time and for all of public service. In fact, the many alternatives invite you to add your own preferences, delete ours, or shift

Frequently Stated Core Public Service Values in OECD Countries

choices to other categories. The set of values claimed by OECD members is one alter- native to Exhibit 1.1. Another option is the list of values adopted by the Independent Sector (2004).

Why incorporate democracy in this take on public service ethics? The answer is that democracy is the practical reality and operational framework for public service in the United States. Democracy calls on the values of impartiality,

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40 The Ethics Challenge in Public Service

justice, the rule of law, liberty, equality, and human dignity. It also points to the importance of accountability and transparency. ASPA’s code urges, ‘‘Recognize and support the public’s right to know the public’s business,’’ and, ‘‘Promote constitutional principles of equality, fairness, representativeness, responsiveness and due process in protecting citizens’ rights.’’

Professionalism is also part of the answer because credentials and expert knowledge are so important in modern life and governance and to our self-image. How many of us think of ourselves as a professional in one walk of life or another? Does anyone we know admit to setting the personal goal of acting unprofessionally? Professionalism calls on the values of excellence, quality, competence, and merit. Professions tend to be (1) self-regulating and self-policing, (2) marked by a common body of expert knowledge, (3) populated on the basis of credentials and expertise rather than blood lines or wealth, and (4) a source of members’ autonomy from the employing organization.

Ethics checks self-serving or arbitrary behavior and substitutes instead many duties. Ethics is about having an independent place to stand. It is the capacity for making systematic, reasoned judgments about right and wrong and to take responsibility for these judgments. Ethics is about decisive action; it is no armchair activity. But it is a special kind of action, rooted in moral values and principles that express what is right and important — values and virtues like justice, compassion, honesty, loyalty, and even old-fashioned ones such as humility, temperance, and prudence. Ethics is action that you can defend publicly and comfortably, and the action should be something you and the community can live with.

Public service is about power. This means that it is also about survival. The key to the ethical professional’s survival is personal integrity, which means taking a sincere and principled ethical stand. Integrity is important for its own sake, yes! But it is important also because it is necessary as a building block of public confidence and trust in a democracy. And a public servant’s own integrity is one of the few things he or she can take away from the halls of public service and into ‘‘civilian’’ life.

So now we have the formula shown in Exhibit 1.1: D + P + E = I ii (institutional and individual).

Here are many values and principles, and they surely lead responsible leaders to different conclusions and contradictory actions. That is what a dilemma is all about. The burden and beauty of ethics is you cannot just download an app to substitute for personal judgment and responsibility.

So the bottom line is clear. For public managers, the formula serves as a reminder exercise public power as a temporary trust, without privilege, and with

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an eye on personal and organizational integrity. This power should be cut off from personal perks so that the public interest dominates. The next two chapters develop this argument further.

The following case study speaks to the ethical content and personal burden of exercising public power and authority.

Case: In the Line of Duty

Tony Harrison

I have been a reserve deputy sheriff for nearly twenty years in the Sheriff’s Office in Canadian County, Oklahoma, which includes the western part of Oklahoma City. As a commissioned police officer with full arrest powers and authority to carry a weapon when off duty, I patrol the streets just like any paid deputy. Many agencies around the country depend upon reserve officers, who should be distinguished from civilian employees and civilian volunteers. ‘‘Civilians have long taken on administrative or menial duties for the police — there are volunteer programs at some 2,100 departments nationwide, according to the International Association of Chiefs of Police — and some departments, including in New York City, use auxiliary officers for traffic control, beat patrols and other duties’’ (McKinley, 2011).

I like this unpaid position, and ‘‘giving back’’ to my community is satisfying and important to me. It takes only about sixteen to twenty-four hours a month and the state requires only annual training in firearms.

One August night several years ago, I covered a midnight shift so that another deputy could take the night off. Within thirty minutes I was on I-40 west to patrol the western sections of the county in a car marked ‘‘Deputy Sheriff’’ and with emergency lights and equipment. As I approached the underpass at Czech Hall Road, I observed a police car from the City of Yukon moving at high speed, with lights on, and heading away from the city. Knowing that he was in pursuit was an educated guess based on years of experience.

Attempting to assist the Yukon police officer, I immediately crossed the center medium of the interstate and exited onto Czech Hall Road. I did not have direct radio contact with the other officer and so immediately notified my dispatcher, who attempted to contact the Yukon Police Department. Although the technology exists to enable one police agency to talk to another, I would have had to switch my radio to the Yukon channel and then lose communications with my department’s dispatcher.

Within a minute I was behind the Yukon police officer, ready to assist. The pursuit had now entered a rural part of Oklahoma City, but we were approaching the city of Mustang, also in Canadian County. I knew that, by

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Yukon Police Department policy, the other officer could not perform a tactical vehicle intervention (TVI). In a TVI, the front quarter panel of the pursuing police car contacts the rear quarter panel of the fleeing vehicle. The police vehicle then steers into the fleeing car and, when the fleeing vehicle’s rear end begins to turn, the police vehicle accelerates and pushes the fleeing car around 180 degrees. This is a technique in which I had been trained and my department allows us to use it. So, because I wanted to end the pursuit as safely as possible, before we entered a more densely settled area, I concluded that the best idea was to take over as primary pursuer and try to TVI the fleeing yellow Volkswagen.

As the pursuit continued, I assumed the position of primary pursuing police unit behind the car. As I began to establish a safe area for the maneuver, the fleeing vehicle moved left of center on the two-lane road, effectively thwarting me. At this point, I didn’t know why the person was not stopping. I asked myself: Should I continue to pursue the vehicle? Decision made, I continued as the primary officer in the pursuit and began to use the TVI in order to end this before we entered Mustang and the situation became more dangerous.

As I tried to locate a safe area for the maneuver, the fleeing vehicle moved left of center on the two-lane road and again blocked the attempt. To prevent the fleeing vehicle from turning onto State Highway 152, a Mustang police car had set up a roadblock south of their city limits. The vehicle drove around the roadblock and onto the five-lane undivided state highway. After a third unsuccessful try, I successfully completed the TVI and the Volkswagen stopped in the middle of the highway. The entire pursuit for 5.5 miles had lasted only seven or eight minutes.

When the pursuit ended, there were four police officers on the scene. This count includes me and the Yukon officer on the driver’s side, and another two walking up to the passenger side. As the other officers and I exited our cars and approached the vehicle, I was within feet of the driver’s side door. I instantly observed the driver staring with what many people call the ‘‘1,000 yard stare.’’ I knew something was wrong by the look of a person just looking off into nowhere.

Although it was past midnight and dark, I could see inside the car; the driver’s side window was open. Immediately I observed a young female passenger in a blood-soaked tee shirt slumped against the passenger door. I noticed the driver’s hands moving quickly in front of his body. I had only a moment to figure out the situation. Could this be a medical call in which the driver is having a seizure? Having no way of knowing for sure, I continued approaching the car. Then I saw that the driver held a knife in his right hand. When I saw the knife, I had a quick thought: Am I going to have to shoot him for having a knife? As I shouted a warning about the knife to the other police officers, the driver stabbed the passenger twice in the chest. The passenger had a look of death on her face and had made no movements that could have threatened the driver. So I knew right off that he wasn’t defending himself.

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The next thing I knew, my handgun was firing and another gun was firing right next to me. I did not hesitate or think about pulling the trigger. I had many years of training with my firearm and in combat shooting technique. I had never shot a person before, and had never even shot the weapon on duty.

In a fraction of a second I had fired four rounds and the Yukon police officer had fired five. Shot nine times, the driver died on scene. The passenger was able to crawl out of the passenger side to a waiting police officer but died before medical assistance could arrive. I had no immediate intellectual response to the events but I remember feeling the impact when she died right in front of me.

Within a few minutes I found out that she had been kidnapped and stabbed numerous times during the pursuit and later learned many more sordid details about both her and the kidnapper from the local press, which reported the incident as a big story for several days. It all took so little time and nine rounds had been fired. Perhaps the media and citizens may wonder why so many, but no one asked us this question this time.

Crime Scene The Oklahoma State Bureau of Investigation routinely initiated a homicide investigation . I was interviewed the very night of the shooting,

but the investigation was not too bad. Mostly it meant just waiting and having the investigation hanging out there as an unresolved issue. The district attorney released a statement about six months later, saying that ‘‘there is no evidence of criminal wrong doing’’ and that ‘‘the actions were justified under the law.’’ This does not prevent a civil action against the officers, but several years have passed and no civil law suit has been filed.

We went through a ‘‘critical incident stress debriefing’’ a few days after the incident. The FBI Law Enforcement Bulletin (Kureczka, 1996) says, ‘‘Critical incidents typically are sudden, powerful events that fall outside the range of ordinary human experiences. Because they happen so abruptly, they can have a strong emotional impact, even on an experienced, well-trained officer.’’ The U.S. Coast Guard (2010) terms this intervention ‘‘psychological first aid.’’ It is designed to help us understand our own emotional reactions.

People react differently to killing someone even in the line of duty, and some police officers leave their departments after a shooting. (A friend told me that after ‘‘his’’ shooting, he just could not justify staying on the department anymore to his wife and kids, just because of the danger.)

I feel okay with what happened. It’s so hard to know why; maybe it is because of what the kidnapper did. The passenger at least knew that someone was trying to help her when she died. It was clear that he was going to kill her that night. It turned out that she had previously filed a rape report with the police and he had said he would kill her and her entire family.

Even when someone does something that feels right and most people think is right, and even when one would do it again, that doesn’t make it easy or cost-free. In some ways the Yukon officer and I are two more victims. I have

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44 The Ethics Challenge in Public Service

Context for ‘‘In the Line of Duty’’

talked with him about the incident. I think about what happened all the time. We all carry burdens. [The author has

since relocated and retired from the Sheriff’s Office, which awarded him the Medal of Valor.]

What Do You Think?

1. What about the taking of life? Why would this bother a police officer? 2. Did the deputy sheriff do the right thing by shooting the driver? Do you

think that the deputy sheriff’s lethal intervention to save another life is justified? Why? Explain your answer in ethical terms.

3. Is your thinking about the ethical issues in this case affected by the death of the kidnap victim or the ‘‘sordid details’’ that the deputy sheriff learned later? If not, why not? If yes, then why and how?

4. Does the finding that the district attorney announced affect your evaluation of the ethical issues in this case? How does the investigation illustrate the difference between law and morality?

5. What values and principles are at play in this case? Do they conflict or reinforce each other?

Note: For a discussion of police discretion, public perceptions, and the sanctity of life, see ‘‘Context for ‘In the Line of Duty’’’ .

Thinking It Over

1. In your opinion, is it possible to avoid a clash of values in public service? Is it desirable?

2. Develop your own set of core values. Would these provide you with guidance or be a straitjacket on decisions you have to make? Why?

3. What is the difference between a responsibility and an obligation? Give examples where you or others have experienced the tension between the two.

4. Professionalism in public service can mean many things. Use the Internet to provide at least three examples of how organizations, scholars, or others have defined or described professionalism. Which one do you think is most convincing, and why?

5. Find a recent survey on public trust (Gallup, Harris, Pew, or another reliable polling organization) on the Internet. What are the public’s current attitudes about public trust?

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http://www.publicsafetygroup.com

What Is Important in Public Service? 45

Companion Web Site Resources

• Additional Resources for Each Chapter • Context for ‘‘In the Line of Duty’’ • Crime Scene (Photo) • Diagnostic: What Shape Are We In? • Frequently Stated Core Public Service Values in OECD Countries • The Meaning of Moral Values • Public? Private? Examining the Theory • Public Service Poster • Right at Ground Zero (Case Study) • Should Government Promote Certain Values in a Democracy? • State of Moral Values in the United States • Values Defined • What Shape Are We In? (Exercise)

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Y CHAPTER TWO

OBEYING AND IMPLEMENTING THE LAW

Let us start by admitting that being a public manager brings with it real power.Wielding power and public authority entails special ethical obligations. This lopsided power relationship — the power of people in public service relative to the power of those they serve — is behind Thomas Jefferson’s and others’ idea that ‘‘public service is a public trust.’’

The obligation of legal compliance derives from the mix of power, public trust, and promise keeping. Its knotty spin-offs include differentiating among legal obligations, disobeying illegal orders, and engaging in personal dissent. A fundamental decision model that concludes the chapter centers on legal obligations without devaluing other core managerial concerns.

Public managers work with public power at their backs. They actually imple- ment decisions through the compulsory powers of legitimate government authority, while the public must rely on the administrative-legal system to tame arbitrary power. The rule of law effects justice and produces predictability and reliability in public programs and in society more generally. Otherwise unfettered discretion is tied by law to authorized, permissible public purpose and procedure.

With administrative discretion, the devil is in the details. Administrative discretion is the scope for decision making within a limited range of options that is permissible under broad rules set out in usually necessarily vague legislation. Discretion is exercised by frontline service providers and other administrators

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Obeying and Implementing the Law 47

armed with decision-making rules for categorizing and treating classes of cases rather than individuals and their problems.

Dependent on government services, including the administration of justice, citizens are vulnerable to public servants’ decisions, from program eligibility to arrest, taxation, and more. This power imbalance between the public manager and the citizen is the reason that ethical duties are so often framed in terms of not doing harm, taking care of those depending on us, and taking into account ethical claims such as promises made. Many governmental and professional codes include special obligations that recognize this unequal power relationship. Along these lines, the code of the American Society for Public Administration commits members to ‘‘exercise discretionary authority to promote the public interest.’’

Observers of the political scene have been aware of the link between power and ethics since ancient times. More than twenty-four hundred years ago, in The Peloponnesian War, Thucydides wrote, ‘‘You know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.’’

Democracy depends on law to equalize power so that right dominates decisions and interactions. The political system turns on the public’s trust that public servants and institutions are doing the right thing. Democracy relies on public trust to accomplish civic purposes through voluntary compliance.

The reciprocal is that public managers are obliged to implement and comply with the law. Failure to do so is often a legal violation and usually an ethical violation. The law draws boundaries around public power; it curbs commitments to mission, client, and personal claims. Two broad boundaries compel public servants to take action (mandamus) and forbid action beyond legal authority (ultra vires).

Taking the Job and the Pledge

The ethical values of truth telling and promise keeping underlie citizens’ faith. They place their trust in public servants who have sworn to uphold the law. Like so many other ideas in public service, the idea of taking an oath can be traced to the roots of Western civilization. Part of the Pledge of the Athenian City-State reveals the idea’s durability: ‘‘We will revere and obey the city’s laws and do our best to incite to a like respect and reverence those who are prone to annul or set them at naught.’’ Exhibit 2.1 offers a modern version of the ‘‘compact you make’’ and its relationship to personal integrity.

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48 The Ethics Challenge in Public Service

EXHIBIT 2.1 Always Ready

Authors’ note: As commandant of the U.S. Coast Guard, Admiral Allen led rescue efforts after Hurricane Katrina and U.S. relief operations in Haiti following the earthquake in 2010. In 2010 he directed the federal government’s response to the BP Oil Spill in the Gulf of Mexico.

‘‘Semper Paratus’’ (Always Ready) is the motto of the U.S. Coast Guard — as in always ready to serve. Recently retired, Admiral Thad Allen, 23rd Comman- dant of the U.S. Coast Guard, offers his path to public service and living the core values of honor, respect, and devotion to duty:

Whether it’s a career in public service or the Coast Guard, you need to understand that when you’re involved in public service, in addition to the compensation that you get, you’re also being compensated psychologically by doing something for your country. It’s important to serve something that’s bigger than yourself. I think that’s embodied in public service and it’s particularly embodied in service in the Coast Guard. The advice I usually give folks is:

1. Number one, you need to understand that you’re serving the country. 2. Number two, you need to get up every day and go to work and enjoy it,

and if you’re not, then you should do something else. 3. Number three, if you’re coming home from work and you’re not enjoying it,

then you need to look at yourself and what’s going on in your life.

I think the Coast Guard has got it right in our core values of honor, respect, and devotion to duty. I think of them as concentric circles when I’m talking to young folks.

1. The first one is honor— that’s a compact you make with yourself on how you’re going to conduct your life and the principles you’re going to live by.

2. Respect, which is the next one, is how you’re going to conduct your life in relation to those around you — the compact you make with your teammates, your officemates, and the people in your own organization.

3. A devotion to duty is a compact you make with your country. So honor, respect, and devotion to duty I see as concentric circles that build the individual from their self out to that larger sense of duty.

The duty of legal compliance is a foundation of professional public service in a democracy. The federal ethics code lays out a clear-cut standard: ‘‘Uphold the Constitution, laws, and regulations of the United States and of all governments therein and never be a party to their evasion.’’ Similarly, Virginia Beach, Virginia, lists upholding the law under the value of citizenship among the standards for its staff.

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By taking the job, you have given your word. The promise to obey and implement the law is part of taking a public position. The promise may be unspoken, but it is still understood. By reinforcing the commitment to ethical behavior, the promise functions as a symbol of a temporary grant of public power on the one hand and, on the other, an agreement to exercise it within permissible boundaries. This function is obvious in ceremonial oaths, of which the presidential oath of office in the Constitution is an outstanding example: ‘‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.’’

Federal Appointment Affidavits

Many government employees take a formal oath. Newly appointed federal executive, legisla- tive, and judicial appointees swear ‘‘true faith and

allegiance’’ to the Constitution by taking the oath of office. The oath is required by Title 5, section 3331 of the U.S. Code for all individuals (except the president) ‘‘elected or appointed to an office of honor or profit in the civil service or uni- formed services.’’ Federal civilian employees complete the appointment affidavits when appointed and take an oath to uphold the Constitution .

By taking the military oath of office, military personnel swear (or affirm) to defend the Constitution and ‘‘bear true faith and allegiance to the same.’’ Donning the uniform means accepting its terms. This promise generates the military’s ethical obligation to abide by civilian authority and the rule of law.

Those in public service in all branches of state (and, by extension, local) government also give the promise by assuming the office or taking the job. Article VI, clause 3 of the U.S. Constitution states: ‘‘The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.’’

Many public service employees, such as those in nongovernmental agencies, do not actually take an oath of legal compliance. Still, the promise is understood, and it underlies the public’s grant of authority. The grounding in law applies to all in public service, including nonprofits. The Association of Fundraising Professionals and many other organizations related to charitable giving embrace legal compliance as part of their ethics standards. So do many other professional associations.

The duty sounds simple, but it raises practical and philosophical questions that managers are bound to face. It is one among many duties. Laws and regulations with the force of law may push managers to behave in a personally objectionable way. Sometimes laws or regulations may conflict. At other times, the spirit and purpose of public service are undercut by to-the-letter or by-the-book legal obedience.

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50 The Ethics Challenge in Public Service

Morality and the Law

The difference between morality and legality is an inescapable challenge in public service. Legal positivism is the legal theory in the Western tradition that stresses the separation between human-made (meaning the sovereign’s) law and morality. The sovereign may be a king or, in a democracy, authoritative institutions. Once the separation between law and morality is allowed, a clash between the two is possible. Governmental authority in modern democracies is not seen as a personal possession, and so the personal moral judgments of individual administrators may not reign supreme. Morality and law ideally should complement each other, but they may very well disagree. Sophocles’ ancient play Antigone is a classic dramatization of the difference between law and morality.

An alternative view fuses religion, government authority, and morality. It dominated in medieval Europe and many ancient empires, and it prevails today in theocratic regimes. Even in some modern secular states and some democratic systems, a number of political leaders see government as an expression of religion and morality.

Remarks of President Ronald Reagan (‘‘Evil Empire’’ Speech), 1983

Some scholars and some political activists argue that we can identify natural law through the use of human reason or through divine revelation; either way, natural

law is seen as unchanging and universally valid. As old as the idea is, natural law can be a politically radical idea because it presents a set of norms that may very well collide with law that human rulers have devised. One example of an appeal to natural law is the U.S. Declaration of Independence. More than one-quarter of a century ago, President Ronald Reagan captured this view in what came to be known as his ‘‘evil empire’’ speech . Some political movements and many pronouncements about human rights make a similar argument today.

If you agree that there is or can be a difference between law and moral- ity and also approve of limits on administrative power, then you and other public servants confront a dilemma. It is this: no sovereign — neither king nor electorate — absolves public managers from exercising their own moral judgment. But this does not settle the issue.

Police Report on Arrest of Rosa Parks (see page 1)

Two questions in particular have hounded public service for centuries: (1) What are a manager’s obligations in the face of an

illegal directive? (2) What if the manager dissents and sincerely believes a law is unjust, wrong, or immoral?

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How important are these two questions in practice? The answer to this question lies in our remembering that not so long ago, some of our predecessors enforced Jim Crow laws .

The Force of Law

Not all legal formulations are of equal weight. The oaths noted earlier reflect the primary position of the U.S. Constitution. American public service is both rooted in and bound by its provisions (Rohr, 1989; Rosenbloom, 2003). They are the ethical manager’s framework for action and the citizen’s basis for trust.

The responsibility for seeing that lesser laws conform to the Constitution lies with the U.S. Supreme Court. A public servant who renders a legal opinion on unconstitutionality to justify his or her own noncompliance goes far beyond official competence and legal boundaries. When the elected chief justice of the Alabama Supreme Court in 2003 defied a federal district court order to remove a monument depicting the Ten Commandments from public display in the courthouse rotunda, the issue was not whether the monument was in violation of the First Amendment’s establishment clause. Courts had issued conflicting rulings over such displays, and debate has raged over whether they violate separation of church and state. The issue simply was whether the display was lawful. The state court’s associate justices ordered compliance, cited Article VI of the Constitution, and wrote that they were ‘‘bound by solemn oath to follow the law, whether they agree or disagree with it’’ (Alabama Supreme Court, 2003). A special nine-member judicial court removed the chief justice from the bench (Gettleman, 2003).

In a real sense, usurping the Supreme Court’s role is abuse of office. When, who, and how the law is tested against the Constitution is a matter for negotiation in the agency and litigation in the courts. Yet in the face of a conflict between the Constitution and a statute, a regulation, or a supervisor’s command, the ethical public manager is committed to the Constitution. This double-bind is part of the reality of public service.

Reading the Rules

An agency’s rule has the force of law, but it should not be confused with the law itself. The federal Administrative Procedure Act defines a rule as ‘‘the whole or part of any agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of any

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52 The Ethics Challenge in Public Service

agency.’’ The Administrative Law Division of New Mexico’s Commission of Public Records says,

Simply put, rules are a special category of law written by state agencies to support, clarify, or implement specific laws enacted by the legislature called statutes. State rules can include building codes, air quality standards, tax codes, public assistance regulations, and public health regulations, to name but a few. They are subordinate to statutes and must work within the framework established by statute. A defining aspect of rules is that they affect people or other agencies outside the agency that writes them [New Mexico Commission of Public Records, 2010].

Agencies adopt rules or regulations to support, clarify or interpret, and execute the general legislation (Rodriguez, 2008). Nebraska’s secretary of state’s Web site offers an example of the state statute that makes a certain blood alcohol level illegal, but agency regulations establish how testing is done. The adopted rules may be infuriating or work at cross-purposes. For example, some Arizona state employees were furloughed by state law and then had to be paid overtime to clear the case backlog in order to comply with federal rules (O’Leary, 2010).

Also, there are rules, and then there are rules. The sheer number of rules and the reality of administrative discretion mean that rules are weighed, juggled, and finessed. One fictional example in particular now symbolizes bureaucratic absurdity: catch-22. From Joseph Heller’s 1961 novel or the later film, catch-22 has come to mean a seemingly inescapable, no-win situation.

How does one read the rules? It depends. Existing agency rules entail legal liability, but the ethical obligation based on the oath to uphold the Constitution is of a different order altogether. With that obligation in mind, rules are narrowly or broadly interpreted, loosely followed, or scrupulously obeyed. With effort, rules can be waived or changed.

A discriminating professional distinguishes the standard way of doing business in an agency from formal procedure, regulations, and law. The obligation is legal compliance, not the manager’s or client’s slavery to routine. The distinction between organizational habits and substantive regulation is important if managers are to retain their capacity for adaptability, innovation, and leadership.

Disobedience Before Illegality

Legal compliance imposes on managers the heavy burden of refusing to obey a superior’s illegal order or directive. For each manager empowered to guard the

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legal basis of citizen trust, disobedience is preferred over illegality. Admittedly, the disobedient manager ‘‘practices civil obedience under particularly stressful conditions because he upholds the rule of law against his lawless superior’’ (Rohr, 1989, p. 12).

Even military orders do not take priority over law. A courtroom defense based solely on the ‘‘following orders’’ defense dates back to 1799 in U.S. military history and was rejected by the Supreme Court; it was similarly rejected at the Nuremberg trials after World War II (Powers, 2004). ‘‘An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while follow- ing orders — if the order was illegal’’ (Powers, 2004). But — and this is a big but — an order is presumed lawful unless it is obviously illegal.

What about disobeying lawful orders? One view on this is expressed in the military context. The official reprimand when a U.S. Air Force major refused an order to submit to an anthrax vaccine in 2000 reads, ‘‘Your disobedience of the lawful order of a direct superior commander undermines the very essence of military good order and discipline. Your failure to live up to these standards cannot be condoned’’ (Vela, 2000).

To Obey or Not to Obey! Civilian versions are common enough

that they have found their way into agency rules and grievance procedures . In many

cases of disobedience or insubordination, an unqualified no is overly formal- istic and uselessly simplistic. Savvy public managers know that they cannot afford the self-indulgence of sentimentality. They do not permit themselves the antidemocratic assumption of their own moral superiority.

Realistically, in the field and in the central office, we know managers bend, twist, curve, and break laws and regulations. This is what selective enforcement is all about: facing an ethical dilemma and blinking. The blink may be for pragmatic reasons — to accomplish the mission and get the larger job done. Or there may be an imperfect fit between by-the-book and public purpose. Sometimes judgment rests on rival values or contradictory laws or regulations. At other times, faulty judgment or even downright ignorance is at work. Managers understand this, but they should not celebrate it.

Judgment, it often is argued, rests on fulfilling a superior’s underlying intention and purpose, that is, the spirit rather than the letter of the order. This leeway enables flexible, instant response to changing circumstances. The same reasoning of spirit and purpose over knee-jerk obedience lies behind determining legislative intent. Different from discretion, intent narrows wiggle room because it calls on managers to abide more fully by the law.

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Disobeying for Good Reason

We are not about to tell public managers that it is ethically defensible to break a law. Given their promise to comply with the law, it is not. Moreover, those who do break the law may be personally liable, either criminally or civilly. This is not to say that managers do not and will not do it; they do and will. Their reason is usually a good one, but it cannot serve as an excuse whereby the offenders seek to be held blameless.

When other ethical claims push in the direction of illegality, the manager confronts a true ethical dilemma. Any decision in this situation stirs controversy; people of good character and strong principles will disagree. The argument here is that the law is the center of gravity in public service, and the Constitution is the touchstone.

Abusing Public Office for Personal Dissent

If a public manager believes a law is unjust or immoral, is he or she ethically obligated to comply? Or does a higher law prevail? Managers today know that there exists the possibility of an abusive, even cruel, political system as symbolized historically, for example, by Stalin’s Soviet Union or Nazi Germany. This argument, however, is misdirection, a red herring. It changes the subject from misguided authority to unjust regime. It changes the question from ‘‘What now?’’ to ‘‘What if?’’ It is irrelevant to the contemporary constitutional system of American public service.

Then there is the likelihood of unjust human law to consider. When ethical judgment conflicts with legal compliance in major matters, conscientious dissent, or civil disobedience, substitutes a standard from outside the administrative system. Religion or philosophy may provide standards for judging whether a human law is just. ‘‘Civil disobedience rests its case on a higher moral or natural law, not on positive law’’ (Rohr, 1989, p. 12).

Civil disobedience is ‘‘a violation of law with the intent of effecting a change in current policy, regarded as unjust by the citizens taking action. Important issues involved in civil disobedience include fidelity to the state, publicity of the disobe- dient act, the permissibility of violence in civil disobedience, and the acceptance of punishment on the part of the protesters’’ (Tedesco and Harris, 2003). These factors distinguish civil disobedience from other actions, including terrorism.

Contemporary politics is well versed in peaceful and not-so-peaceful civil disobedience, thanks to Gandhi’s struggle against colonialism, the sit-ins and freedom rides of the civil rights movement, and the antiapartheid and antinuclear campaigns. In a famous act of civil disobedience in December 1955, Rosa Parks

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Police Report on Arrest of Rosa Parks (see page 2)

disobeyed segregation laws in Montgomery, Alabama, by refusing to leave a seat reserved for white passengers . Aung San Suu Kyi

won the Nobel Peace Prize in 1991 for her nonviolent struggle for democracy in Myanmar.

In his renowned ‘‘Letter from Birmingham City Jail’’ (1963, p. 6), the Reverend Dr. Martin Luther King Jr. explained that ‘‘there are two types of laws: There are just laws and there are unjust laws. One has a moral responsibility to disobey unjust laws . . . A just law is a man-made code that squares with the moral law of the law of God.’’ King (p. 7) goes on to state a central tenet of ethical civil disobedience, which is taking responsibility for one’s actions. ‘‘One who breaks an unjust law must do it openly, lovingly . . . and with a willingness to accept the penalty.’’ Similarly, the twentieth-century philosopher John Rawls saw civil disobedience as an open political act — ‘‘an appeal to the majority and its sense of justice, and by engaging in civil disobedience, one hopes to show the majority that the policy or law in dispute is inconsistent with the society’s shared political values’’ (quoted in Tedesco and Harris, 2003).

Contrast this with conscientious refusal. This ‘‘is not necessarily a political act and thus may be grounded in one’s personal moral, religious, or philosophical convictions’’ (Tedesco and Harris, 2003). In A Matter of Principle, Ronald Dworkin (1986) examines ‘‘integrity-based civil disobedience.’’ He justifies refusal to obey the law ‘‘because when people violate their morals, conscience, or integrity in order to obey a law, they suffer immediate, irreparable harm by doing so’’ (Tedesco and Harris, 2003).

Dissenting as a Citizen

May a public servant ethically engage in conscientious dissent outside his or her office? This question accents professional and organizational roles, but these are not the only roles in the life of a professional in public service. How should a city manager respond to an urban planner who takes part in a peaceful demonstration opposing abortion? How should a state finance analyst decide whether to participate in an antiwar protest? There are two issues when the action is not related to official duties: (1) responsible citizenship and the (2) legality of the mode of dissent. The case at the end of this chapter addresses these and related issues.

When the action is legal, our answer is yes: public servants may ethically engage in conscientious dissent unrelated to their office. The citizenship rights of public managers are already limited by the ethical standards, laws, and regulations discussed throughout this book. In practice, the answer is often modified by the

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appearance standard, discussed in the next chapter. Unwelcome professional consequences will likely vary according to the visibility of the administrator and the action. Part of ethical action is a willingness to take responsibility for it.

Not all modes of dissent are legal. Respect for democratic processes, public trust, and the promise of legal compliance ethically constrain public servants. As a result, the ethicality of dissent outside office turns on the action’s legality. A county hospital administrator who challenges nuclear weapons by refusing to pay personal income taxes is breaking the law and shrugging off the ethical value of promise keeping. Bear in mind that a sincere ethical argument can be made, as Henry David Thoreau in his 1849 essay that came to be called ‘‘Civil Disobedience’’; the dissenter may believe that public interest is paramount in this instance. Even so, the ethical hospital administrator should not opt for illegal means to what she or he believes is a moral end.

Dissenting in Office

It may be ethically permissible or even imperative for a citizen to break a law. Yet this does not extend to public servants the privilege of using government authority and public position to do so. The ethical manager may not use public office to dissent as a citizen.

By definition, civil dissent or disobedience is not possible through a pub- lic position that draws on government authority. Nor is it an option for ethical public managers because it violates an important value and breaks the prior promise of legal compliance. Pursuing conscientious dissent through public office, for whatever reason, makes a liar of the public servant and a lie of public service. Were managers to use public office to break the law at will, public trust would be broken as well.

Again, we are speaking of routine circumstances, not an ‘‘evil empire.’’ The political context is a constitutional system with implemented safeguards and exercised rights. But no system is perfect.

What does an ethical public manager do when faced with a choice between legal compliance and violation of a central, personal, ethical belief? (Granted, a choice this clear-cut is rare.) The answer can be framed in terms of three options: (1) exit, meaning to leave without fixing the problem; (2) voice, or trying to fix the problem; or (3) loyalty, which can modify the other two options (Hirschman, 1970).

To our mind, the answer lies outside the public position. Because no organization or law should dictate central ethical choices and if the choice is truly that momentous and stark, then the preferred option may be to resign. In this case, walking away from the job exercises and tones personal integrity. This doesn’t

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Obeying and Implementing the Law 57

necessarily mean walking away from the problem. Many, from former CIA operatives and military commanders to former government scientists, regulators, and inspectors, use the media to fight their moral battle in public. The key word here is former.

If some misguided public servants try to have it both ways — justify illegality and use public authority — then they are operating under the delusion of moral superiority and disguising it as legal authority. Having it both ways is inherently antidemocratic and unethical, and such individuals will find themselves caught in a vise of unethical behavior and public censure as a result. Grabbing for power under cover of public position undercuts the very foundations of constitutional democracy. (A pragmatic note: managers also open themselves to legal action.) Dissent using one’s public position reveals public servants’ disobeying the law on grounds of religion, conscience, or superior knowledge. Instances of this kind of personal dissent have been sobering experiences for the public and for the players (see the examples in Hamilton, 2004, and Taylor, 2004).

Go/No-Go Decision Model

In public service, the law prevails. From the Athenian pledge, ‘‘We will revere and obey the city’s laws,’’ to contemporary standards and professional codes, additional ethical questions arise only after the legality of the action is settled. For example, the code of the Government Finance Officers Association of the United States and Canada identifies legal compliance as an ethical responsibility; its members shall ‘‘uphold both the letter and the spirit of the constitution, legislation and regulations governing their actions and report violations of the law to the appropriate authorities.’’ Consider also the price tag of personal and organizational liability.

Accepting the law’s priority is the first step in making routine decisions in pub- lic service. The obligation to make a legal decision is hardly enough justification; the scope is still too broad. A narrowly legalistic perspective may pervert rather than implement the law’s purpose. Ethical decision makers, sensitive to ethical concerns, aim at good decision making. Action should be both legal and ethical.

There is also a third consideration: the job to be done. Effectiveness matters because there is a job to be done — a service component to public service. Decisions must be realistic and useful. Public managers are not in this business to spin wheels but to solve the problem, meet the mission, deliver the service. Rational and busy managers take action not for its own sake but for the purposes they are trying to accomplish. There should be a logical link between the objective and the decision. Although management without ethics is purposeless,

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or worse, impractical public management is doomed to failure. Useful action adds the element of pragmatism to decision making: action should be legal, ethical, and effective.

Simply giving up on an ethical and legal but ineffective course of action can stifle creativity or justify immobility. Therefore, not all matters should stop here. The next step is to innovatively redesign the proposed action so that it meets all three criteria. Likewise, if action is ethical and effective but illegal, it may warrant a place in the agency’s legislative package.

Three questions asked in sequence function as a first cut for decision making:

1. Is the decision legal? 2. Is the decision ethical? 3. Is the decision effective?

The answers then guide whether to take action:

Ethical Unethical

Illegal No action (perhaps pursue change in law?)

No action

Legal and ineffective No action (perhaps engage in innovative redesign?)

No action

Legal and effective Action No action

Figure 2.1 shows that immediate action takes place only at the intersection of effective legal, and ethical.

The go/no-go decision-making model aims at immediate action and puts ethical concerns on the table as legitimate in decision making. This model is elementary; it helps decision makers act on legal obligations without devaluing other core concerns.

Is the decision legal? Ethical? Effective? A no to any one question flashes a red light: stop! Because only a yes response leads to the next question and a no ends the matter (pending alterations), this approach is efficient and managerial. Immediate action is taken only if the answer is yes to all three questions in turn. The model is given a workout in Exhibit 2.2.

This model also is useful in thinking through the falsification of public docu- ments. Undeniably this is illegal. Although there may be situations in which a small deception may seem an acceptable price for a greater good (as the second scenario in Exhibit I.1 illustrates), the point of this venture is to undercut accountability, avoid taking responsibility, and evade the test of publicity. The cumulative impact of each instance is unknowable because the record is in fact bogus.

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FIGURE 2.1. GO/NO-GO DECISION MODEL

Effective

LegalEthical

Three judgment calls on immediate actions:

1. Is the decision legal?

2. Is the decision ethical?

3. Is the decision effective?

Illegal

*Pursue change in law? +Innovative redesign?

Legal and Ineffective

Legal and Effective

No action*

Ethical

No action +

Action

No action

Unethical

No action

Note: Proportions do not depict the number or scope of activities or decisions that each arena represents.

Leaving a false trail using protective communication may become habitual or be abused for personal or organizational purposes. This problem probably dates back to the beginnings of record keeping. Edmund Burke, the eighteenth- century British statesman and philosopher, condemned how the once carefully kept records by the East India Company in India became a sham — and a shame (Smith, 2008). A modern example is the defensive report — an informal mechanism for reconstructing reality for purposes of self-protection. Perhaps a police officer files charges of resisting arrest because the suspect sustained injury during a botched arrest. Or perhaps a performance appraisal reflects spurned sexual overtures. Although fiction may be effective, it is neither legal nor ethical.

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EXHIBIT 2.2 Using the Go/No-Go Decision Model

The cab of a chemical truck overturned on a country road, trapping the driver in explosive fumes and precipitating an immediate threat to the driver and the local area. Although untrained and ill equipped for the specific hazard, the local volunteer emergency service was first on the scene and went in for an immediate, and successful, rescue.

At the inquiry conducted by the state board, the local chief insisted that the successful rescue was anything but reckless or irresponsible. ‘‘I sort of weigh the risks. I wouldn’t do anything that could hurt my people more than the good we might do. But we know that our job is to help people, so what else could we have done?’’

Should the chief have attempted the rescue? Use the go/no-go decision model:

• Suppose you know that the jurisdiction will be sued for damages by the trucking company and driver. Would that alter your assessment? Why?

• Suppose you know that a volunteer emergency responder will be injured during the rescue. Would that alter your assessment? Why?

• Wear the chief’s hat. What else should you think about before acting?

A related twist is passing bad news up the hierarchy, an unenviable task. It tests courage by pitting self-protection against misrepresentation and points to the difference between truth and candor. By contrast, when an analyst or subordinate fails to scrutinize and evaluate data carefully, systematically, and in accord with rigorous standards, the issue is competence, not courage. For an old but to-the-point example, we turn to a former assistant to President Jimmy Carter. The assistant describes ‘‘the government’s version of the law of gravity that bad news never flows up. The only times I saw anyone struggle to warn his superior of impending trouble . . . were on those occasions when the superior was sure to find out anyway’’ (quoted in Patterson, 1988, p. 47). Of course, the silent subordinate is not performing the job, despite the promise implicit in taking it. Therefore, although the behavior may be legal and personally useful (although risky, if discovered), it is not ethical.

Assume for a moment that you discover a subordinate has kept bad but important news from you. How would you handle the silent subordinate? What is it about the behavior that offends you? Is it that the behavior is unethical or organizationally ineffective, or shows a lack of trust in you?

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The go/no-go model is too simple to be used for anything more than a first cut into an issue. The heart of the matter — ethics — is treated as a settled issue. The following chapters peel back the curtain and expose the ethical quandaries and questions that challenge professionals in public service.

Case: A Sign of the Times

More than one thousand protesters demonstrated outside the personal resi- dence of Wisconsin’s governor in February 2011 to voice their displeasure with his budget proposals. The governor was living at the governor’s residence in Madison, the state capital, while his wife and teenage sons stayed in their home town to finish the school year. In Madison, protestors filled the capitol rotunda

Wisconsin Protest Photos, 2011

and the street . A few teachers carried handmade signs directed at the governor: ‘‘Scott, your son is in my class. I teach him, I protect him, I inspire him.’’ ‘‘Scott,

I taught your son algebra. My son just turned 5. Does he deserve a good education?’’

Some observers objected that these signs are a ‘‘violation of trust in the student-teacher relationship’’ and that the protesters were using a child ‘‘as a pawn for political gain.’’ Consider too the argument that children are a protected class in political controversy: ‘‘Whether it’s the Obama girls or the Walker boys, politicians’ kids deserve to be off limits’’ (Campos-Duffy, 2011).

Some counter that the matter was serious to teachers personally and to public policy in the state. The protesters viewed Scott Walker’s budget proposals as threats to their careers, the public education to which they are dedicated, and their own children coming through the educational system. The governor’s children were teenagers, not toddlers, after all, and knew that their father was a public figure. The teachers disclosed no confidential information and stayed firmly within professional boundaries and the constitutional protection of freedom of speech.

Food for Thought

1. Is this protest by government employees a proper exercise of their right as citizens to conscientiously dissent?

2. While it is legal for protesters to demonstrate at a private residence, is it the right thing for public employees to do? Should public employees self-impose ethical limits on their political behavior? Why or why not?

3. Were the signs ‘‘outrageous,’’ as some claimed? Were the teachers really ‘‘using’’ the children? Were the public school teachers violating a relation- ship of trust? Or were they simply repeating public information and helping

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62 The Ethics Challenge in Public Service

the public understand the connections among budgets, political power, and public education?

4. Did the governor’s supporters try to redirect the issue from school budgets to protecting children as a political ploy? Is it ethical to portray the protesting teachers as villains instead of victims? What could be gained from redirection and reframing? If these are practical tools in a political controversy, are these tactics ethical?

5. Do the facts and circumstances matter, or do ethical norms dictate that some people and some issues are always strictly off limits? Why?

6. Are both pro and con arguments valid in ethical terms? Would you carry the sign? Would you pressure the school board to discipline the teachers? Why?

Thinking It Over

1. Are public servants ever justified in pursuing illegal activity if they believe the law is wrong? Why or why not?

2. May public servants ethically engage in civil disobedience outside their office? What do you think, and why?

3. Should public opinion affect moral judgments in a democracy? Explain your answer in ethical terms.

4. What is the difference between obedience and loyalty? Are both always virtues?

5. Use the Internet to access your state’s ethics code or constitution. What does it have to say about public officials’ duty to obey the law?

Companion Web Site Resources

• Additional Resources for Each Chapter • Federal Appointment Affidavits • Police Report on Arrest of Rosa Parks • Remarks of President Ronald Reagan (‘‘Evil Empire’’ Speech), 1983 • To Obey or Not to Obey! (Case Study) • Wisconsin Protest Photos, 2011

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Y CHAPTER THREE

SERVING THE PUBLIC INTEREST

Another public service obligation is to champion the public interest. Invokedby democratic imperatives, interdependence, and shared concerns, as well as empathy and respect for future generations, this obligation generates three standards: (1) avoiding conflict of interest, (2) maintaining impartiality, and (3) avoiding the appearance of impropriety. This chapter proposes a model for exploring what public interest means and confronts the realities of public scrutiny by offering practical guidelines for working with the media.

The use of a public position to pursue any personal agenda is unacceptable ethically (and politically) in public service. Public managers wield other people’s power and authority. That these are on temporary loan is simply a fact of life in public service. Managers do much of the choosing in the authoritative allocation of values that is the standard definition of what government is all about. A mission related to the public good is part of the definition of a nonprofit agency. To keep the citizens’ trust, public managers are charged with pursuing the public interest.

Trade-offs and paradoxes top today’s political agenda: the environment competes with economic interests; public health programs and insurance pro- posals face off against medical technology and an aging population; donors’ preferences clash with recipients’ needs; deficits challenge tax preferences; and so on. Resolution carries with it considerable ethical content and fallout.

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The paradox is that private self-interest — selfish, greedy, and unrestrained or, more technically, short-term, individual utility — plunders the common pot. Ecologist Garrett Hardin (1968, 2008) labeled this long-recognized problem ‘‘the tragedy of the commons.’’ Unbridled self-interest threatens shared resources, often the very source of the prize. Bounty becomes booty, and the whole community is at risk.

Protecting common-pool resources is a governmental purpose. There are, of course, alternatives to government authority. One is privatization, which is impractical in many cases. This option may even be widely rejected in cases such as the Yellowstone National Park, Arlington National Cemetery, or having all original copies of the Declaration of Independence in private hands. Another solution to overexploitation is to hold the resource or asset in common while letting the users develop their own governance system. Elinor Ostrom (1990) won the Nobel Prize in economics in 2009 for her work along these lines. This approach is most readily applicable to small-scale cases and so does not easily accommodate national treasures.

In the conventional contractual view, we voluntarily submit to coercion and establish government to restrain private self-interest that would hurt everyone. The public service obligation to serve the public interest derives from this creation myth. Public servants ideally mold and sustain the links to our future and to the whole without unduly curbing liberty.

In Hot Pursuit

What does ‘‘serve the public interest’’ really mean for public managers, and why is it important? Often an answer draws on the definition by journalist, essayist, and social critic Walter Lippmann (1889 – 1974): ‘‘The public interest may be presumed to be what . . . [people] would choose if they saw clearly, thought rationally, acted disinterestedly and benevolently’’ (Bell and Kristol, 1965, p. 5). Yet we need to ask, ‘‘How do we know the public interest when we see it?’’ (Morgan, 2001, p. 153).

There is no template or app that captures what the public interest means and no hashtag that flags all its possibilities. The problems on the public service agenda call for ‘‘a fundamental extension in morality’’ (Hardin, 1972, p. 250). These problems have no technical solution. Public interest mandates that managers forge a link between the short and the long terms and between individually rational self-interest and the aggregate, common good. The agency’s mission statement is a sensible place to start in understanding what public interest entails.

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As a public service duty, pursuing the public interest is thought of more usefully as a process rather than an objectively identifiable end point. An elusive and sweeping obligation, its pursuit is a never-ending process made meaningful more by practice than by a product. ‘‘It can be simultaneously seen as both a state of being and an ongoing process. Its quality and significance are bound up in both the process of seeking it and in the realization that it must always be pursued’’ (Denhardt and Denhardt, 2003, p. 67). It is a moving target in the sense that its content changes with the time frame and the condition.

For purposes of practicality and reasonableness, the duty to pursue the public interest is defined here by two demands it makes on professionals in public service: to reflect on its many facets, as disclosed through broad representation and dialogue, and to engage genuinely the duties and values associated with four aspects of public interest: democracy, mutuality, sustainability, and legacy. The common core in many formulations, these four aspects of public interest are arrayed in Exhibit 3.1, which packages public interest issues the way they often come to managers concerned with who, when, democracy, and ethics; the what, of course, is the public interest. It asks us to address sincerely each aspect in sequence and to dismiss none.

Across Time

Two of the four umbrella categories in Exhibit 3.1 relate to public managers’ responsibilities to the present: democratic concerns and individual or private interests, on the one hand, and, on the other, mutual interests and ethics. The other two speak to public managers’ responsibility to future generations: ensuring a viable future and preserving and transmitting civilization’s legacy. These four categories obviously crosswalk to the many roles, values, and duties associated with public service.

The centrality of democratic values, especially as a constraint on adminis- trative arrogance, excess, or incompetence (Morgan, 2001), drives the sequence in step 1 in Exhibit 3.1. Starting from a democratic base, the public manager as agent or delegate bundles into public action the individual, private inter- ests articulated as political demands. In a democracy, managers must remain responsive to citizens, or the public interest idea degenerates into an irresponsible justification of antidemocratic action. Beware of those who wrap themselves in the common good or confidently assert future interests; demagogues or scoundrels may try to use these to justify oppression and repression. The key is the context and accommodating rather than spurning the important values, principles, or interests at stake.

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EXHIBIT 3.1 Pursue the Public Interest

Step 1: Touch Four Bases in Sequence; Dismiss None

1. Democracy: delegate, agent • How? Listen and respond, balance competing popular preferences • Values: Responsiveness, receptiveness • Tools: Cost-benefit analysis, public opinion polls

2. Mutuality: statesman, trustee/steward • How? Create and define community, use moral imagination and

dialogue • Values: Inclusion, ethics, impartiality, civic virtue • Tools: Analysis of constitution, mission statement, regime and profes-

sional values 3. Sustainability: steward, sustainer

• How? Preserve, protect, anticipate • Values: Empathy, benevolence

4. Legacy: steward, custodian, legator • How? Preserve, transmit, educate, cherish • Values: Empathy, benevolence

Step 2. Reflect on Four Principles

1. Trustee principle: Protect future generations’ interests. 2. Sustainability principle: Secure future generations’ opportunity for compa-

rable quality of life. 3. Chain of obligation principle: Provide for the needs of current and coming

generations, and give near-term concrete risks priority over long-term hypothetical risks.

4. Precautionary principle: Absent compelling need, avoid imposing the risk of irreversible harm or catastrophe.

Source: Step 1 is adapted from Lewis (2006). The four principles in step 2 are from the National Academy of Public Administration (1997, p. 7).

By itself, this first take on the public interest is inadequate to the manager’s task as trustee or steward. (Because the distinction sometimes made in the academic literature between trustee and steward is not useful here, we use the terms interchangeably.) So now the manager shifts to mutual or community concerns. The idea of ‘‘the public interest’’ encodes the obligation to search for the common ground, to find the common threads that bind us together. We read in the Federalist Papers no. 57: ‘‘The aim of every political constitution is, or

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ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society.’’ Louis Gawthrop (1998, p. xiii) tells us that ‘‘the ethos of public service, so essential for the spirit of democracy to flourish, can be realized only if directed by a moral imperative bound to the common good.’’ Although we argue that there are moral aspects to all four categories, here we add an explicit and focused moral aspect, along with a more inclusive approach to public service.

The method we recommend has two components. One is community dialogue, in part to safeguard democratic values and in part to stimulate creative resolutions. (We think of crowd sourcing as an ethics tool.) From the postmodern or discourse perspective, ‘‘the public interest has to be socially constructed through a dialogical process that is open and free from all forms of oppressive constraints’’ (Morgan, 2001, p. 172; on dialogue and accountability, see Har- mon, 1995, and Roberts, 2002). The public interest is well served when the manager adds a dose of creativity to the dialogue. Public managers are expected to ‘‘search imaginatively for a public-will-to-be. In this search, the public servant is often a leader in the creation of a new public will’’ (Bailey, 1964, p. 235). The second component is to draw on constitutional, regime, and professional values. Of course, expert knowledge also is called into play.

Ancient Athenian Pledge The ‘‘public interest’’ idea urges public

managers to live in a dynamic time warp, with a foot in the future. Therefore, one simple test

of public interest is respect for future generations, which is simple to understand but not necessarily simple to do. For this reason, the third aspect of public interest in Exhibit 3.1 is sustainability. This spotlights biological and ecological viability. The moral responsibility here rests on future generations’ vulnerability to current decisions with irreversible repercussions. Public service in its finest sense demands looking at the long-term implications of today’s decision. This obligation is expressed with elegant simplicity in the pledge of ancient Athens: ‘‘We will transmit this city not only not less, but greater, better and more beautiful than it was transmitted to us .’’

Global Vision Iconic images of the earth from space symbolize the

sustainability dimension today . More than a century ago, in 1908, President Theodore Roosevelt spoke to

the First Conservation Conference. In his speech, ‘‘Conservation as a National Duty,’’ he said, ‘‘We cannot, when the nation becomes fully civilized and very rich, continue to be civilized and rich unless the nation shows more foresight than we are showing at the moment’’ (Morris, 2001, pp. 516 – 517). A Native American proverb makes a similar point: ‘‘We do not inherit the earth from our ancestors; we borrow it from our children.’’

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Although most of us can nod in agreement with broad platitudes advocating sustainability, it may be a complex obligation at any particular time. Specific polit- ical arguments made in its name often spawn controversy rather than consensus. For example, in May 2011, Our Children’s Trust, a nonprofit organization in Oregon, filed or planned legal and administrative actions against the fifty states and federal government to compel governmental action against climate change. Its press release states, ‘‘Science, not politics, define the fiduciary obligation that trustees must fulfill . . . The legal actions rely on the long established legal [common law] principle of the Public Trust Doctrine that requires the govern- ment to protect and maintain certain shared resources fundamental to human health and survival.’’ People on the other side of the climate change issue or the wisdom of public trust litigation warn against overloading the judicial system, overregulating a sputtering economy, and going for an end run play around authoritative policymaking institutions such as state legislatures and Congress (Brown, 2011).

Legacy, the fourth duty, speaks to matters of culture, civilization, and history. It is fourth because it is logically dependent on viability. Its holding last place on the list does not mean that it is unimportant. The worldwide recognition of the legacy responsibility to future generations is illustrated by the reaction to the Egyptian people’s efforts to protect their — and our — cultural heritage. In January 2011, chaos and revolt ruled in Egypt. When fire and looting threatened the Egyptian National Museum in Cairo, not only did army units secure the building — home to important and famous pieces of human history — but demonstrators themselves formed a special kind of human shield to protect the museum and its holdings. The world understood and cheered their courageous stand.

Other examples provide additional evidence of the legacy responsibility:

• Originally 170,000 artifacts and art treasures were reported lost in the looting of Iraq’s National Museum of Antiquities in 2003. An archaeologist described it as ‘‘a rape of civilization’’ (Booth and Gugliotta, 2003). In May, U.N. Security Council Resolution 1483 imposed a worldwide ban on illicit trade in Iraqi cultural property. By June it was known that ‘‘only’’ thirty-three important pieces from the main collection were missing. A senior official at the Baghdad Museum and respected archeologist Donny George noted, ‘‘But look, these things can never be replaced. That is why they call them priceless’’ (Booth and Gugliotta, 2003, p. A12). As a marine reservist called from his work as a public prosecutor in New York City and armed with degrees in law and classical studies, Colonel Matthew Bogdanos headed the U.S. investigation into the looting. Bogdanos (2003, p. D6) expressed the legacy obligation when he said that the artifacts ‘‘are indeed the property of the Iraqi people, but, in a

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very real sense, they are the shared property of mankind. I speak for all when I say we are honored to have served.’’ The museum reopened in 2009. The media reported in September 2010 that about five thousand pieces had been recovered but fifteen thousand were still missing.

• A wall of a building had stood for about two thousand years in the ruins of Pompeii, the ancient Roman city buried by a volcanic eruption in 79 A.D. and now a UNESCO World Heritage site. It then collapsed into rubble in 2010. The response in Italy and around the world was immediate: Shame! Neg- ligence! Mismanagement! Although some criticism was politically motivated and designed to make the opposition look as inept or crass as possible, the reaction of archeologists, art historians, and the media worldwide focused on the loss of part of one of humanity’s historical treasures.

• In 2001, the Taliban destroyed the Bimiyan statues of Buddha dating to the seventh century. A worldwide outcry from governments, Buddhists, Muslims, art historians, and others condemned the dynamiting of human history and culture.

• Recognition of the legacy aspect of the public interest predates these current examples .

From Bounty to Booty George H. Frederickson (1994) asks,

‘‘Can public officials correctly be said to have obligations to future generations?’’ In answer-

ing yes, he cites the future orientation in the pledge of ancient Athens. Let us now fast-forward from antiquity to more recent examples of the legacy obligation: the founding of the United Nations Educational, Scientific and Cultural Organiza- tion in 1945 and the adoption in 1972 of the U.N.’s World Heritage Convention that seeks to protect cultural and natural treasures. It boasted 911 properties on the World Heritage List as of 2011, of which 20 are in the United States. We conclude that it is a time-honored and widely accepted practice to extend the ‘‘public’’ in ‘‘public interest’’ to embrace future generations.

Across Condition

Public interest mandates that the public manager take an empathic leap across time, yes, but across condition as well. Empathy is another test of public interest and decrees open-mindedness and participation. The empathy component means that public managers are stewards for all the public, including (and, some might argue, especially) the vulnerable, dependent, and politically inarticulate — those most likely to be overlooked in formulations of the public interest. The result is that public managers are responsible for hearing otherwise silent voices in the

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process through which the public interest is defined. Now ‘‘us’’ is broadly defined to include future generations for whom current public service is a steward.

Empathy may demand an inventive resolution needed to overcome an ‘‘ethical impasse’’ (Hart, 1974) that can otherwise paralyze decision makers. Here we call on the moral imagination. The downside is that ‘‘new’’ means untested, and this implies risk. Step 2 in Exhibit 3.1 discriminates between the near-term and long-term future and between concrete and speculative risks. Importantly, it has been argued, ‘‘Most risk problems can be solved only by ethical analysis and democratic process: the most important aspect of risk is not scientific but ethical’’ (Shrader-Frechette, 1998).

The New Public Administration of the 1970s (Frederickson, 1987; Hart, 1974; Marini, 1971) reactivated the value of beneficence (Frederickson and Hart, 1985). The ancient obligation to do good is found in the ethical complexion of most of the world’s religions and so is not as radical as was thought at the time. It established social equity as a ‘‘third pillar’’ in public administration (Frederickson, 1990), right alongside efficiency and economy, and was elevated to another ‘‘basic operational guideline’’ (Hart, 1974, p. 3).

This move was heavily influenced by John Rawls’s A Theory of Justice (1971), in which the philosopher provides an idealized method for arriving at the public interest or general welfare. By abstracting oneself from one’s own class, status, and social circumstances, one discusses and reflects behind a ‘‘veil of ignorance.’’ Because decision makers do not know how they personally would be affected by decisions, they are persuaded to minimize their own (and their descendants’) risk by choosing truly just arrangements and institutions.

Is social justice important to professional public managers? The voluntary assumption of a social conscience by professional public managers was heavily influenced by the racial, economic, and intergenerational turmoil in the United States in the 1960s. Fifty years later, social conscience has reared up again as income inequalities, unemployment, home foreclosures, educational opportu- nities, intergenerational inequities, and other factors amplify disparities in life opportunities among racial, income, and other groups. A fair and just perspective calls for an inclusive, empathic stance.

Is the notion of empathy idealistic? Yes, intentionally so. Idealism, too, is a public service trait mirrored in the Athenian pledge. It has been said that the notion of ethics itself ‘‘derives from man’s imaginative power, from his tendency to idealize, to envision perfection, to extend his selfhood in identification with humanity as a whole’’ (Bergson, quoted in Boling and Dempsey, 1981, p. 14).

Is the principle of public interest unrealistic, impractical? No, because ethical public service rejects both naiveté and cynicism. The essential moral qualities of the ethical public servant include optimism, the faith that things can be improved,

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and the courage to act on that faith (Bailey, 1964). Optimism — pragmatic, realistic, confident — combines ‘‘can do’’ with ‘‘should do.’’ Although government cannot provide all of the solutions, public managers should try to see and facilitate the different possibilities. Public service is privileged to retain an old-fashioned and hard-headed belief in the possibility and desirability of progress.

Avoiding Conflict of Interest

Public interest, like law, draws a boundary between public and personal life. As a result, conflicts among competing roles and claims are predictable in public service. The very separation of public from personal roles in developed bureaucracies induces the potential for conflicts of interest. They are the logical and practical by-product of managers’ complex lives and multiple roles.

Professional managers are ethically obligated to act through their public position on behalf of the public interest. This standard is a public service rudder by which public managers are expected to steer. They are expected to have personal interests but are ethically constrained from using public office to pursue them. Public managers should anticipate conflicts and temptations but not indulge them at public expense.

The avoidance of conflict of interest by public servants is so widely accepted in different societies that it ranks as orthodoxy. It persists as a standard precisely because violations continue and typify conflicts between public and personal claims. At its most minimal, the standard is this: use of office for personal gain for oneself or others is unethical. Usually it is also illegal.

Corruption

The separation of the public from the personal often translates in practice into an ethical (and legal) prohibition against the sale of office. The fact is that ‘‘no public official or administrator, high or low, owns the government, his organization, or his office. The government belongs to the public, and the administrator’s role is that of a trustee, not a proprietor, in the use of his authority’’ (Graham, 1974, p. 92). Seeing conflict of interest as larceny or the unlawful taking of property, this formulation depends on the legitimacy of property and ownership and so is open to distributional questions (which are beyond the scope of our discussion here).

U.N. Convention Against Corruption: Ratification Map

Article 17 of the Universal Decla- ration of Human Rights formalizes a universal right to own property privately and collectively. This right has meaning

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only if theft is prohibited. The U.N. Convention Against Corruption was adopted in 2003 as the first legally binding, international anticorruption agreement. It went into force in 2005 when thirty countries ratified it. The convention refers to ‘‘the principles of proper management of public affairs and public property’’ and criminalizes bribery, embezzlement, and other offenses such as obstruction of justice. Whether by influence peddling, extortion, or otherwise, use of office for personal gain is theft, and so this posture effectively enthrones a prohibition against the sale of office as a global standard . Corruption is abuse of office.

Bribery competes for the title of most unambiguous ethical offense. It usually is prohibited outright. According to one government definition, ‘‘A bribe is an offer to employees of something of value to (a) do something they should not do or (b) fail to do something they should do, in their official duties. The something of value need not be money; it can be anything of value’’ (U.S. Department of Defense, 1984, p. 40). Survey data provide evidence of a worldwide rejection of official bribery (Gilman and Lewis, 1996).

But some temptations do not and will not ever disappear; individuals succumb, no matter how widely accepted the ethical standard. One example is nepotism, meaning favoritism shown to relatives. The word’s derivation reflects its longevity and persistence. It comes from the old Italian word for nephew and refers to special favors in job placement shown to the relatives of church dignitaries in Europe centuries ago. A twentieth-century example is from Mayor Richard J. Daley of Chicago. Asked about awarding a contract to his son, Daley reputedly said, ‘‘If you can’t help your family, who can you help?’’ (Chicago Metro Ethics Coalition, 1989, p. 4). Today nepotism is prohibited widely and outright. In public service, preferential treatment for personal gain, even if not one’s own immediate gain, is improper behavior.

Read All About It

Why does corruption capture the headlines today when it is such an old story? If it were a new story, we would not read this in an ancient source,

Deuteronomy 16:18 – 20: ‘‘You shall appoint magistrates and officials for your tribes . . . and they shall govern the people with due justice. You shall not judge unfairly; you shall show no partiality; you shall not take bribes . . . Justice, justice shall you pursue.’’

More historical evidence of the durability of corruption comes from a keystone of the British and U.S. legal systems, the Magna Carta. It stipulates, ‘‘To no one will we sell, to no one will we refuse or delay right or justice.’’ (The Great Charter of English liberty was granted to the barons by King John in 1215 at Runnymede.) U.S. law derives from English experience, and so it is hardly

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surprising that Article 2, section 4 of the U.S. Constitution stipulates bribery among the grounds for impeachment.

A late-seventeenth-century manual on local administration in China advises: ‘‘The magistrate is obliged to remain impartial and render judgments strictly in accordance with the law. If, unfortunately, the magistrate is fatuous enough to accept a bribe, his impartiality will be compromised’’ (Huang, 1984, p. 114). And this is the point precisely: corruption undermines justice in principle, in fact, and in the public’s perception of its government.

Again: If it is not new, why is corruption newsworthy? One answer is this: corruption is newsworthy when it appears systemic, endemic, and at high levels. On the scandal sheet over the past decade, we find elected officials, appointed officials, senior staff, civil servants, nonprofit and corporate managers and board members, educators, scientific researchers, contractors, and others. For government, corporations, religious institutions, foundations and charities, academia, and the media, an abbreviated list of offenses includes bribery, fraud, and influence peddling; falsification of records, perjury, plagiarism, and research falsification; violations of contract procedures and gift bans; and the old-fashioned swindle.

Other ethical lapses involve sex rather than money. Using the authority or power of office to force or solicit sexual rewards from clients, subordinates, or others less powerful than or dependent on the official is abuse of office. The intimidation is there, whether spoken or not. For this reason, sexual harassment is widely prohibited by law, policy, and professional standards.

We discover a culture of corruption in our leading institutions, and this discovery is greeted with outrage. This outrage surely is another part of the answer as to why corruption rates headlines: someone has betrayed us. We, the public, are victims of corruption, and the cost is more than dollars; it is our confidence and trust.

This sense of betrayal by corruption is powerful and widespread. It robs people of hope and may ultimately provoke their fury. People cried ‘‘Enough!’’ when known or believed corruption fed the turbulence in Tunisia, Egypt, and other Middle Eastern countries in 2011. Rulers were toppled at least in part because of corruption.

Politicians and pundits across the United States deplore the damage done by ethical lapses to the trust believed fundamental to a democratic political system. Opinion polls suggest that Americans’ attention to corruption is scandal driven and short-lived. When our attention is once again diverted, what can we do to prevent systemic, high-level corruption?

The answer relies in great measure on constitutional checks and balances among the branches of government. Arguing in support of the U.S. Constitution

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in Federalist No. 51, James Madison cautioned, ‘‘If angels were to govern men, neither external nor internal controls on government would be necessary . . . A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.’’ So we also rely on robust, independent watchdog institutions such as ethics commissions and campaign finance commissions, which we examine in Chapter Eight. We argue that we depend on their independence, strength, and expert staffs to combat corruption so ancient and durable that its reappearance is a sure thing.

If we so depend on institutions, then, in the words of another ancient, Juvenal, ‘‘Who guards the guardians?’’ This is the citizens’ responsibility in a democracy: to demand accountability, hold leaders’ feet to the electoral fire, clamor that the link between government and justice remain uncorrupted, and refuse to tolerate the sacrifice of public interest to personal or political gain. The headlines inevitably remind us that this responsibility cannot be transferred, delegated, or forgotten.

Broadly Speaking

Conflict of interest may simply mean breaking rules or law, but it has a broader meaning as well. The prohibition against conflict of interest rests on four main principles:

• Maintaining impartial and independent judgment • Being responsive to the public interest • Rejecting private gain from office or duties • Upholding public confidence in the integrity of public service and public

servants.

New York City’s Conflict of Interest Board Executive Order 13490 and Sample Waiver

These principles expand the idea beyond specific offenses (such as the ones in New York City’s Ethics Guide and Executive Order 13490 ). Russell L. Williams (2003) reminds us that ‘‘in the larger sense, if an individual

(or group) functioning under governmental auspices, responsible for mak- ing decisions or taking actions affecting the public, places self-interest ahead of public interest in exercising authority, then a conflict of interest exists.’’ The idea now includes impaired judgment or a subjective definition of inter- est (see Stark, 2000). Defined this broadly, the prohibition against conflict of interest is the negative version of the imperative to pursue of the public interest.

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