Most people know what it means to be ethical, to be an
honorable person that behaves according to what they believe is right. Trying to pin down what is right in every
situation and what everyone can accept as right becomes a little more
difficult. Religion is often the basis
of ethics in society, but not everyone is religious and many have different
religious beliefs. The law can describe
the limits of ethical standards, but the law does not always lead to ethical
behavior – more what one ought not to do.
A third source of ethical principles is defined by societal acceptance,
but this source can also mislead those hoping to be ethical actors.
Ethical Behavior and Personal Integrity
The Markkula Center for Applied Ethics at Santa Clara
University describes ethics as standards of right and wrong and as the constant
review of those standards. “First, ethics refers to well based standards of
right and wrong that prescribe what humans ought to do, usually in terms of
rights, obligations, benefits to society, fairness, or specific virtues.
Ethics, for example, refers to those standards that impose the reasonable
obligations to refrain from rape, stealing, murder, assault, slander, and fraud.
Ethical standards also include those that enjoin virtues of honesty,
compassion, and loyalty. And, ethical standards include standards relating to
rights, such as the right to life, the right to freedom from injury, and the
right to privacy. Such standards are adequate standards of ethics because they
are supported by consistent and well founded reasons.
Secondly, ethics refers to the study and development of
one's ethical standards. As mentioned above, feelings, laws, and social norms
can deviate from what is ethical. So it is necessary to constantly examine
one's standards to ensure that they are reasonable and well-founded. Ethics
also means, then, the continuous effort of studying our own moral beliefs and
our moral conduct, and striving to ensure that we, and the institutions we help
to shape, live up to standards that are reasonable and solidly-based.”
[1]
The International City Managers’ Association describes what
ethics is about to capture the broad scope of ethical behavior. In their description, ethics is about:
- Right
and wrong
- Good
and bad (or good and evil)
- Virtue
and vice
- Benefit
and harm
- Propriety
and impropriety
- Principles
– fixed, universal rules of right conduct that are contingent on neither
time nor culture nor circumstance
- Character
– traits, qualities and established reputation that define who one is and
what one stands for in the eyes of others
- Example
– an established pattern of conduct worthy of emulation
- Conscience
– “the voice of the soul” that is created from social instincts, the
approval of others, and one’s own reasoning and experience [2]
The previous definition and description of ethics fall upon
the individual’s development of what is right and wrong as it relates to
society and the institutions in which that person operates. In other words, ethical conduct depends on
one’s integrity. A leading author on
ethics, J. Patrick Dobel, writes that every elected, appointed, and career
official must exercise judgment and discretion in carrying out the duties and
responsibilities of office, and that the key to ethical behavior in exercising
judgment and discretion is personal integrity.
[3] According to Dobel, personal integrity
“demands consistency between inner beliefs and public actions.” Integrity requires that people critically think
about their beliefs to make them their own and when individuals make a
commitment based on their beliefs they understand what that commitment means
and act on it. Integrity means that
individuals are unified in their roles and commitments (professional,
religious, public, family, private, etc.) and their values. “Personal integrity
resembles a network of roles and promises all held together by a central web of
values and commitments.”
[4]
Ethics Laws
Ethical behavior and personal integrity in public life means
that public officials act in ways that they and society have accepted as right
conduct and that this behavior is consistent with their personal values and
commitments. Most people in public
office enter that theater with honorable intentions, but there are enticements
in public life that can lead honorable individuals to make ethical
misjudgments. To curb the temptations
of power and position, ethical laws are created that set limits on public
action. Ethics laws are usually created
in response to some act that lawmakers feel was of questionable ethical
conduct.
Ethics legislation is only one way to set standards of
ethical conduct by which public officials should operate. “Ethical government means much more than
laws. It is a spirit, an imbued code of
conduct, an ethos. It is a climate in
which, from the highest to the lowest ranks of policy- and decision-making
officials, some conduct is instinctively sensed as correct and other conduct as
being beyond acceptance… Laws and rules can never be fully descriptive of what
an ethical person should do. They can
simply establish minimal standards of conduct.”
[5]
Official judgment and discretion in the public interest must also be governed
by personal responsibility and knowledge of the consequences of their
actions. In the end, personal integrity
will determine the level of ethical behavior in government. Integrity, like trust, is developed over
time through actions that are taken out of personal principles and values.
“Legislators should not rush into reactive behavior by
enacting more and more [ethics reform] laws and regulations,” according to
Peggy Kerns, Director of the Center for Ethics in Government at the National
Conference of State Legislatures (NCSL).
“Instead, lawmakers should focus on ethics training and identifying core
values.”
[6]
Ethics laws are, however, important because all are not
angels and there must be some basic standard for ethical conduct – and
consequent penalties for unethical behavior.
For the same reason the legislature makes other laws – to regulate
behavior public officials should be subject to laws regarding ethical conduct. Ethics reform has been called for by the
local media because, as Peggy Kerns noted above, there have been questions
raised about the ethical conduct of public officials. Unfortunately, Utah is not alone in facing ethical issues. In many states across the country, ethics
reform is one of the top issues for state legislatures. The National Conference for State
Legislatures has assembled an impressive clearinghouse of information on ethics
reform and provides this information to legislatures across the nation. The NCSL Center for Ethics in Government
covers topics from conflicts of interest to ethics training. Their database includes information gathered
from each state so inquisitive lawmakers can take a “best practices” approach
to crafting ethics reform legislation in their own state that applies to their
particular circumstances. This paper
will primarily draw on the resources of the NCSL Center for Ethics in
Government as well as other materials on ethics reform to provide information
for policymakers interested in developing meaningful ethics reform legislation.
Ethics Reform Legislation
Ethics reform legislation has had a difficult time passing
in the Utah Legislature, but recent charges of ethics violations has stimulated
renewed discussion. There are problems
defining many of the concepts of ethics such as conflict of interest or ethics
oversight and it is not easy setting what could be called arbitrary limits on
gifts or who should oversee ethical conduct in the Legislature. Utah is not alone in grappling with ethics
issues. The now infamous case of Senator
Ted Stevens of Alaska being convicted of violating federal ethics laws for not
reporting thousands of dollars in gifts is the most well-known incident. Officials in Hawaii are investigating ethics
violation of the State’s procurement law by a state agency, and in
Pennsylvania, 12 people have been charged with felonies for using public funds
for conducting campaign work. In these
and other states, the answer to ethics violations is the introduction of new
ethics reform laws. These laws can be
placed in four main categories:
conflicts
of interest, gifts, financial disclosure, and ethics oversight.
[7] This paper will examine these four
categories (gifts and financial disclosure are subcategories of conflicts of
interest), although there are many other areas of concern regarding ethical
reform laws. The NCSL Center for Ethics
in Government lists the following categories:
Conflicts of Interest
Individuals serving in public office, whether elected,
appointed or civil servants, all have histories that may include other
interests. In the case of a part-time
legislature, most are employed elsewhere while they concurrently serve as
legislators. This situation can
sometimes create difficult choices between an individual’s personal interest
and the interest of the public.
Examples can include ranchers voting on water or rural issues, educators
serving on public education committees and even lawyers writing legislation
that they will use in future cases.
Conflicts of interest are often defined in terms of receiving a personal
benefit as a result of one’s position or decision, particularly a financial
benefit. Conflicts may arise as a
policymaker receives gifts or honorariums, in representing clients, or in doing
business with the state in which they make decisions on public policy.
States have recognized the inevitable dilemmas created when
potential conflicts of interest arise and defined how policymakers should
behave in these circumstances. Most
states require that an individual legislator
not vote in situations where a potential conflict of interest
exists (see NCSL State Comparison Table:
To
Vote or Not to Vote). Often
lawmakers must state the conflict prior to a vote and ask to recuse themselves.
The State of Colorado is typical of states prohibiting votes
in cases of conflict of interest as defined in their Senate rules:
Senate Rule 17, 41:
Senators can't vote on bills in which they have personal or private interests.
If this is the case, they must disclose those interests before being excused. A
senator is considered to have personal or private interests in measures if he:
·Has substantial economic interests in the measure
distinct from those held generally by members of the same occupation or
business, of if a close relative has such an interest,
·Has an interest in an enterprise that would be affected
by the proposed legislation differently from like enterprises,
·with someone who has a financial interest in an enterprise that would be
affected differently from others,
·Has a close economic association with, or has a
relative who is, a lobbyist or lobbyist employer who is influencing legislation
on which the legislator would be expected to vote,
·Accepts a gift, loan, service or other economic
opportunity from someone who would be affected by or has interest in an
enterprise that would be affected by the legislation.
The State of Ohio requires legislators to recuse themselves
if legislation is being advocated by lobbyists who are associated with the
legislator:
Legislative Code of Ethics/Ohio
Revised Code 102.031: No member of the General Assembly shall vote on
any legislation that is then being actively advocated by a lobbyist who is (1)
an employee, (2) a business associate, or (3) a person, other than an
employee who is hired under contract to perform certain services and such
position involves a substantial and material exercise of administrative
discretion in the formulation of public policy.
U
tah requires that legislators file a
Declaration of Conflict of Interest form with the Secretary of the Senate or
Chief Clerk of the House of Representatives declaring general legislative areas
in which a legislator may have a conflict of interest. State law allows legislators to vote even
when they believe they may have a conflict of interest as long as they orally
declare their conflict before the vote.
Legislator Gift
Restrictions
The category of gifts received from lobbyists to legislators
is one of the most common areas restricted in ethics laws. Most states allow some level of giving
gifts, recognizing the difficulty of defining what is a gift and trying to
assess the value of such gifts. Some “zero
tolerance” states strictly prohibit gifts of any kind or value. Other “bright line” states place a specific
monetary value on gifts received (usually $50 - $100) or total amount from a
lobbyist in a given year. Other states
restrict gifts only if they are viewed as “influencing official action.” (see
NCSL State Comparison Table:
Giving, Receiving, and
Reporting Coffee). Alaska, for
example, is a “zero tolerance” state of lobbyist gifts except for tickets for a
charitable event. Florida allows gifts
up to $100 except for honoraria and food consumed immediately at certain
events. Virginia provides for no
restriction of gifts except “to giving something of value for the explicit
purpose of influencing legislation, usually interpreted to be a bribe.”
An NCSL briefing paper,
Gift
Restriction Laws for Legislators – It’s Not a Physics Lesson, describes
the differences between state gift restrictions. Ginger Sampson and Peggy Kerns note in this paper, “an advocate
of zero tolerance laws says they eliminate the ambiguity created by any level
of monetary restrictions. Opponents of those laws say a de minimus policy,
mechanisms for independent third party review, and disclosure are more
reasonable approaches. Both sides agree that the goal is creation of a policy
that prevents the appearance of impropriety.”
Utah prohibits a public officer, public employee, or
legislator from receiving gifts of substantial value that would tend to
improperly influence official action.
Exceptions:
·An occasional non pecuniary gift, having a value of not
in excess of $50;
·An award publicly presented in recognition of public services;
·Any bona fide loan made in the ordinary course of
business; or
·A political campaign contribution.
Ethics Committees and Commissions
There are two basic mechanisms for overseeing ethical
conduct in state legislatures: committees and commissions. (see NCSL table:
Ethics
Committees and Commissions) Ethics
committees are generally self-regulating bodies whose members are state
legislators. This means of internal
oversight provides for other legislators who determine compliance with ethics
laws and rules. These committees
deliberate on accusations of ethical violations of its members and prepare
codes of ethics for their legislative chambers. Every state has some form of an ethics committee.
Ethics commissions are composed of citizen or public
officials appointed by the governor or other public leaders who oversee public
employee and legislators’ compliance with ethics laws and rules. Commissions investigate ethics complaints
and determine penalties or give advisory opinions. They may also adopt regulations to administer ethics laws, provide ethics training, and receive
financial disclosure and lobbyist reporting documents. Thirty-three states have ethics commissions
with jurisdiction over the legislature.
States have both
committees and commissions in most cases because the public is uncomfortable
with a government that regulates itself in matters of ethical conduct. Obviously, other professions, notably
lawyers and doctors, have internal regulation of its members, but are not
involved with the public interest to the same extent as state legislators and
public employees.
A former Chair of the Center for Ethics in Government
Executive Board commented on the necessity of internal ethics committees and
external ethics commissions. "Both state ethics committees and commissions
play essential and consistent roles in ensuring that our public servants behave
ethically. Let's justly punish the bad apples. But let us not forget that the
basis of effective government is public confidence. Media and others choose, at
times, to create an appearance of unethical behavior when the vast majority of
legislators are ethical public servants who operate with integrity and who take
their jobs seriously." A list and
description of state ethics commissions can be found at the following website:
Comprehensive
List of State Ethics Oversight Agencies.
Utah does not have an external oversight commission. Ethics committees function in the State
Senate and State House as standing committees of eight members, four from each
party appointed by the leaders of both parties. Procedures for the Senate and House Ethics Committees are the
same (Joint Rule 6-2-101):
- A
complaint is submitted in writing to the chair of each respective
committee.
- Following
a preliminary investigation, if necessary, there is a formal
hearing.
- The
committee can then make a recommendation to resolve the conflict.
- The
recommendation is then sent to the legislative body for a vote.
The legislative body can accept, dismiss, or alter the
recommendation. If the recommendation is for expulsion, it requires
a 2/3 vote.
Personal Financial Disclosure
Most states require state legislators to disclose their
personal financial interests.
Generally, legislators must state their occupation, any financial
interest in businesses or other sources of income, any leadership or board
positions with corporations or properties they hold. This information is to help determine whether a conflict of
interest might exist if these interests come into conflict with decisions made
in the public trust. Most states
require similar information about the legislator’s spouse and dependent
children. (see NCSL State Comparison Table:
Personal
Financial Disclosure Statements for State Legislators: Income
Requirements).
Forty-five states require personal financial disclosure
statements be filed annually; two, North Carolina and North Dakota, require
disclosure every election year, and three states, Idaho, Michigan and Vermont, do
not require state legislators to file personal financial disclosures. Eighteen
states require disclosure of associations with lobbyists.
Utah’s financial disclosure rules have far fewer
requirements than most other states.
Joint Rules 16.05A
A legislator shall file an annual Declaration of Conflict of
Interest form including:
- Businesses
having fair market value of $10,000+ in which a legislator holds a
position such as director, officer, owner, member, partner or employer.
Ethics Training
Experts in the field of ethics emphasize the importance of
training to educate public officials, and in some cases lobbyists, on the rules
and laws established in their state and the basic principles of ethical
conduct. Nearly every state (including
Utah) includes ethics training in newly elected legislator orientation. More extensive training for new legislators
is required in 16 states, and ethics training is available for all legislators
in 17 states. Ethics training is offered
to legislative staff in 22 states and an increasing number of states offer
ethics training to lobbyists. (see NCSL Eyes on Ethics Brief:
Ethics Training)
Several state ethics training programs go beyond a simple
explanation of ethics laws and rules and include value-based principles of personal
integrity. The Ethics Resources Center
emphasizes training on “the right questions to ask and the tools to prepare
them for situations that laws do not cover.”
[8] Probably the “Cadillac” version of
public official training programs is the Biennial Institute for Georgia
Legislators conducted by the
Carl Vinson
Institute at the University of Georgia.
The Institute provides training that includes state laws and rules as
well as training on the underlying values that govern ethical conduct. Several states provide online ethics training,
although several simply post their ethics manual online. (see NCSL comparison
table: Links to States’
Online Ethics
Training Programs, Training Manuals, and Slide Presentations) Some states, including Ohio and Kentucky,
invite recognized ethicists to assist in the training of state legislators.
Alan Rosenthal stresses the importance of leadership in
encouraging ethics training among public officials, "A move in this
direction [training] will require the leadership of people who appreciate the
increasing connection between ethics and the health of their institution."
[9] Rosenthal sites the benefits of conducting
live ethics training where public officials can discuss their experience with
ethical dilemmas:
- Discussions
can raise the ethical consciousness of legislators.
- Structured
conversations will give legislators an opportunity to compare and comment
on what they believe to be proper and improper under various
circumstances.
- Discussing
ethics may bring legislators closer to consensus on certain issues.
- In
time, legislators may increase their ability to reason morally.
Conclusion
Ethics reform legislation is generated as much for
reassuring citizens that ethics is an important concern of public policymakers
as it is to establish standards of ethical conduct. Accusations of ethical
misconduct harm the reputation of the member being charged with the offense,
but it also does damage to the political institution as a whole. The public wants to be confident that the
people they elect and who represent their interests are doing so with
integrity. Establishing clear and
understandable standards of ethical behavior for public officials and lobbyists
and creating mechanisms that impartially oversee ethical behavior improve
confidence and transparency in the institution.
When public officials consider ethics reform they should
look at a variety of components of ethical standards including those described
here but also important issues not discussed such as the use of campaign funds,
campaign finance, lobbyist interactions, dual employment and the revolving door
issues. As important as developing a
more defined standard is the need for ethics training. Newly elected legislators and other
officials should learn about the laws and values associated with ethical
conduct and other public officials should have ethics training available to
them as well. Possibly the most helpful
training on ethics would be a discussion among public officials to review the
dilemmas and issues experienced by long-time officials and the issues new
officials might expect.
Ethics reform probably deserves some serious thought and
should be addressed in a comprehensive way rather than a quick response to an
isolated accusation of ethical misconduct.
Reform should include a concise description of ethical standards,
provisions for training and impartial oversight. Where possible, standards are more helpful if they are broadly
described and cover multiple situations.
Training is most effective when leaders participate in both development
and implementation and the trainings are offered in a variety of formats,
including written manuals, online and classroom formats. Face-to-face discussion might be the most
effective approach given the situational nature of ethical dilemmas and the
value-based decisions that are made in problematic ethical circumstances. Finally, public confidence, transparency and
basic fairness are enhanced when there is impartial oversight of ethical
behavior.
