ETHICS
The study of ethics is a difficult topic for many people. This page is
designed to cut out a great deal of that difficulty and provide some intellectual
food for thought. After the links below, a paper prepared for the Alaska
Municipal League by J. Donahue is attached. That paper provides a quick
look at some considerations regarding ethics, particularly in Alaska Municipalities.
If you have any feedback on that or this page, please e-mail me at jdonahue@alaska.net.
Thank you for reading this page.
If you are interested in the State of Alaska's Select Committee on Legislative Ethics, this URL Ethics Committee will take you to their website. Joe Donahue is a public member of that Committee (and past Chair) and has been for four years. If you have comments on the Committee's work, please e-mail Mr. Donahue above.
Other interesting links on ethics from Joe's personal bookmark page follow:
Ethics Updates This is Lawrence M. Hinman's site of ethics updates for all instructors and students of ethics.
Ethics Committee. As mentioned above, this is the State of Alaska's Legislative Ethics Committee's site, with information on that law and its implementation.
CAERNETS This is the Canadian Applied Ethics Research Nets homepage. It is a fascinating infrastructure for applied ethics research and its dissemination funded by the Canadian Social Sciences and Humanities Research Council (SSHRC), through the Centre for Applied Ethics.
The Classics This is a subsite from the Ethics Updates site above, with direct on-line access to the classics and reference books for ethics research.
On-line JournalThis is the home page for the On-Line Journal of Ethics published by the Institute for Business and Professional Ethics.
Codes of Ethics This site, Professional Ethics Resources on the World Wide Web, maintained by the Centre for Applied Ethics, contains most of the professional Codes of Ethics and much more.
COGEL This is the home page for the Counsel on Governmental Ethics Laws (COGEL) which has a journal from which some citations are made in Mr. Donahue's article below.
Below, is Joe Donahue's paper that was presented to the 1995 Alaska
Municipal League
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ETHICS
FOR
ALASKAN COMMUNITIES
A PRESENTATION BY:
JD'S PROFESSIONAL ASSISTANCE
P.O. Box 1736
Kenai, Alaska 99611
Phone 907-283-8051
Fax 907-283-7750
For The
ALASKA MUNICIPAL LEAGUE'S
1995 LOCAL GOVERNMENT CONFERENCE
INTRODUCTION
This paper is a discussion of some of the issues and concerns local community
governments face in trying to be "ethical." As with individuals,
communities vary in what the citizens feel is ethical behavior or conduct.
As a result, many communities have written different Ethics Codes. Some
communities have no laws or rules dealing directly with ethics, but nearly
all have some form of conflict of interest rule. It is the author's firm
belief that each community should have written rules on ethics, spend time
and effort on ethics training, and enforce the rules.
If your community has a sophisticated Ethics Law, which has been tested under fire and you have many court decisions regarding ethics, you may find this information redundant. However, in most instances even the most experienced finds a new way to look at ethics occasionally. This paper will also be discussing briefly the concept and implementation of Open Meetings or sunshine laws and the affect on the governing body of a municipality.
The goal of this paper is to provide some information on ethics and the laws intended to implement ethical behavior by elected officials. If discussion is stimulated and questions asked as a result of the paper, I will have succeeded. The first and most important effort in improving ethical standards, behavior, or laws is open, thorough discussion and discourse. Ethics has finally come out of the closet, and it is OK to talk about it. You will no longer be a wimp, a nerd, or be accused of being naive or a poor politician, if you openly discuss ethics. In fact, you can now get political points for talking a good ethics game. Soon, you may only get points for actually living up to the talk.
As efforts are made to open the discussion and actions on ethics amongst
elected officials, public employees, and governments; there will be some
disagreements, and eventually court cases and settlements. Each new law,
decision or interpretation will make the issues more complex, and require
additional learning, new laws, and more effort. While that is going on,
a basic foundation in the principles of ethics is necessary for elected
officials, if they are to stay grounded in reality, and satisfy the public
expectations. The public fully expects elected officials to have exemplary
behavior, conduct, morality, and to avoid even the appearance of a conflict
of interest. Satisfying that public expectation is a never ending struggle
if you wish to continue to serve.
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ETHICS DEFINED
Ethics should be easy to define, since it is a topic that is more and more on the lips and minds of people. The word "ethics" is derived from a Greek word meaning "customs," and encompasses society's mores and morals, customs and traditions. Since the beginning of recorded history, organized societies have established some rules of conduct, or ethical standards--And since then, there has always been ethical problems. These come from accepting bribes, misusing public funds, putting private gain above the public good, etc. In defining ethics, these natural conflicts between the common good, and the individual human behavior, often arise. Webster's defines ethics as:
The study of standards of conduct and moral judgment; moral philosophy.
A treatise on this study. The system or code of morals of a particular
person, religion, group, profession, etc. Conforming to a professional
standard of conduct.
Black's Law Dictionary states:
Of or relating to moral action, conduct, motive or character; as, ethical
emotion; also, treating of moral feelings, duties or conduct; containing
precepts of morality; moral. Professionally right or befitting; conforming
to professional standards of conduct.
Since morality and morals are referred to in definitions of ethics, a definition
of morals is needed:
Relating to, dealing with, or capable of making the distinction between,
right and wrong in conduct. Relating to, serving to teach, or in accordance
with the principles of right and wrong. Good or right in conduct or character.
A matter of conscience versus positive law.
Ethics seems to be the "right" or "correct" individual
behavior or conduct in some unit of society. Fundamental principles of
ethics are necessary for a society or unit of society to function. As Carol
J. Whitcraft, a member of Counsel on Governmental Ethics Laws ( COGEL
) writes: "There are no ethical or unethical hermits. Ethics occur
only in human relationships." However, she goes on to discuss the
fact that hermits, as humans, may well have a self sense of morality and
be either moral or immoral.
Others argue that the separation of morality from ethics is misleading,
and should not take place. Louis C. Gawthrop writing in an article entitled
"The Moral Dimension" for the COGEL journal, states that "the
notion that public ethics should be applied with amoral detachment would,
perhaps, leave all of the founding fathers aghast." He provides historical
perspective dealing mostly with the first amendment separation of Church
and State and the change in interpretation over the 200 plus years since
the Constitution was adopted.
Honesty, integrity, right, wrong, objectivity, neutrality, respect, courtesy,
conduct, impartiality, quality, fairness, equality, values, morals,--the
list is without end. Suddenly, this issue is getting more difficult, and
sometimes we may not like what we see, hear, or think about ethics. Who
decides what is right or wrong??? Is it the same as good and bad? When,
and for whom, does the right and wrong get decided? Can you legislate morality?
Almost all writers come to one conclusion: ethics is a matter of doing
the "right" thing. As Mark Twain once said: "Always
do right. This will gratify some people and astonish the rest." What
Mark Twain did not say, and we are still grappling with, is what is right
and who's definition shall we use. This leads to the differences between
personal and organizational ethics. If we accept that ethics is doing what
is right, then we only need define what is right.
Much of the definition of ethics boils down to personal integrity and honesty.
The National Institute of Law Enforcement and Criminal Justice published
the following statement in 1978:
Corruption has three main components that are controllable and one that
is not. The three controllable ones are opportunity, incentive and risk;
the uncontrollable one is personal honesty. Many public servants over a
long period of time have had the opportunity to be corrupt, a large incentive
to do so, and little risk of being found out but have refused because 'it
wouldn't be honest.'
This individual, personal honesty or ethical code of behavior is key to
successfully having ethics in government. Electing honest people, rewarding
honesty, promoting honesty, recognizing honesty, and penalizing and publicly
ridiculing dishonesty and unethical behavior may be a slow way to turn
the ship of governmental ethics, but it does work. Each of us represents
a small step or segment needed to re-establish and reinforce ethics in
government by our own actions and our examples. We need to do what is honest
and right!
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PERSONAL AND ORGANIZATIONAL ETHICS
The decision on what is ethically right or wrong is partly a personal decision,
and partly a result of an organization's code of ethics. Most of the time,
the personal decision and the organization's decision will be the same,
since our society is grounded on some standard principles of human behavior.
In professional societies or institutions this is easier, and that code
has to do with the right way to do the job or profession. Most of the time,
the personal, individual idea of what is "right" due to education
and training, is the same as the organization's.
In government organizations, there is sometimes a divergence between
individual codes of conduct, and those of the organizations. The decision
on what is ethically right or wrong is much more difficult in situations
where a lack of clarity or outright differences in personal and organizational
ethics exists. This is the reason there are usually laws or codes passed,
and enforcement organizations provided for by municipalities, states and
other units of government.
Each person in this room has a personal code of ethics. It may not be formulated,
and you may not even be aware of it. It does not matter whether or not
you were raised on the street as a gang member, or in a parochial school
as a choir member, each of you have a sense of ethics. Unfortunately, (or,
if you value diversity, fortunately), all of us do not have the same personal
code of ethics. Your personal code of ethics is composed of the following:
1.) Your upbringing and family values; 2.) Your life experiences; 3.) The
rules and influence of the society and community in which you live.
There is no simple, universal formula for solving ethical problems. We
have to choose from our own codes of conduct whichever rules are appropriate
to the case in hand; the outcome of those choices make us who we are. --Sir
Adrian Cadbury
It is politically incorrect or at least dangerous now-a-days to discuss
specific values, (however popular it is to state a firm believe in basic
values, and family values and the need to teach them--without defining
exactly what is meant), yet personal ethics is determined by your own set
of values. In Ethics and Leadership, William D. Hitt defines values
as:
First, values are beliefs, not facts. Second, values are enduring, they
are not transient (but that does not mean they are fixed). Third, values
provide guidance with respect to two aspects of our lives, our mode of
conduct (personal behavior) and our desired end-state of existence (personal
goals).
This does not mean that values are necessarily politically expedient, nor
politically neutral; but it places the values in the role of defining a
balance between personal behavior and personal goals. For example, our
goal may be to eliminate the competition in a business deal, but most of
our personal value systems would not allow committing murder to accomplish
that particular goal. Likewise, theft of proprietary information would
also not be acceptable to most of our personal values even if getting it
would satisfy a goal. In some instances, the legal deterrent of a law,
and its penalties helps to draw the line, where personal values might fail
some of us.
A society, government or other organization has certain rules and goals
which may not emphasize or have the same values as an individual. If our
values are significantly different than the organization, we usually, try
to find other employment or location to live. Otherwise, we use our personal
values and ethics to interpret areas that are not defined by the written
code or law of our unit of society. This latter aspect is of utmost importance
in serving in a governmental role or as an elected official. As you make
decisions as a public servant, you will experience conflict between your
personal ethics and the organization's ethics. You will have to make
choices.
When ethical questions arise because the organization's behavior does not
square with an individual elected official or employee's personal code
of ethics, a choice or compromise is necessary. The individual must find
a way to reconcile this conflict, rather than violate their own ethics;
or, violate their organization's ethics or interests (with all the attendant
risks to job, power, votes, and livelihood). Sometimes these choices are
severe, as they must have been for some in the German hierarchy during
Hitler's reign.
It is easier to maintain the "moral" or ethical high ground if
we do not need the job or income. It is more difficult when we truly must
have the employment to feed our family. Sometimes, there is not a clear
case of divergence of values or interests, rather an area which is unclear
or that is not adequately covered in what is written. In these instances,
the individual employee must have somewhere to turn. Ethics laws provide
refuge or guidance, as do neutral bodies set up to implement such laws.
A similar situation may occur between an employee and supervisor, even
if there is no perceived difference in values between the individual and
the organization. The boss and the individual may have diametrically opposite
(or nearly so) personal values. Both may be governed by the same organizational
rules, laws or guidance on ethics matters, but in reconciling with their
personal codes reach opposite behaviors. An employee in this situation
needs an objective way to reach the organization. This example, and the
one above, are the main reasons organizations provide ethics training,
and provide for some review body to help answer questions.
The tension between the individual's expectation, behavior, and ethical
values and those of the organization provides a natural area for controversy
or public perceptions to run rampant. When an employee, the organization,
or someone else leaks information on such ethical conflicts to the media,
a version will be sent to the public. Unfortunately, that version may or
may not contain all of the facts, and the choices. However, this public
airing is often the only opportunity for the citizen to determine if their
own ethical values are being met. Ethics is usually undefined where conflicting
values meet, thus creating areas that need interpretation.
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ETHICAL DECISION MAKING
Performing ethically in a government role requires a personal system of
ethical decision making (regardless of the ethics laws that may or may
not be in place). Even with clear personal values and ethics, and written
ethics codes, there will still be some decision making necessary. According
to Michael Josephson, writing in the COGEL journal, making ethical decisions
is more difficult than we think. Placing public interest above personal
interest is at the heart of ethical decision making, but it is not always
that simple. James Rest in his book, Moral Development, lists in
sequential order four requirements for ethical decision making:
1.) You must be able to make some sort of interpretation of the particular
situation in terms of what actions are possible. (What are the options?)
2.) You must be able to make a judgment about which course of action is
ethically right. (What is the ethical dimensions associated with this?)
3.) You must give priority to ethical values above other personal values
such that a decision is made to intend to do what is ethically right. (Which
option would I choose, given my values?)
4.) You must have sufficient perseverance, ego, strength and implementation
skills to be able to follow through on your intention. (What obstacles
can I expect to encounter?)
These four requirements or questions are very helpful when faced with the
governing or political decisions you must make everyday. There is an aspect
of ethics in nearly every decision and everything you do as a public servant.
Because of this, you need to develop your own decision making system to
ensure that your decisions are "right" and will withstand the
scrutiny of the ethics police amongst the citizenry.
To fully accomplish ethical decision making, you must have a base level
of knowledge of yourself and your values or personal code of ethics. Only
you can truthfully determine that basic value system, and you should not
rationalize nor waiver from your own beliefs. All decisions should be weighed
against your personal ethics standards, regardless of the ethics codes
governing your unit of society. If your ethics are more restrictive, then
you must be true to them. If your own ethics are not as stringent as the
law, then you must go with the law that society developed (or attempt in
the legislative process to modify the law, if your constituents are in
agreement with your interpretations).
Two other elements enter into the public decision making and ethics. One
is openness of the process of decision making, and this will be discussed
in more detail under the heading Open Meetings later in this paper. The
second element is public perception, which sometimes is based on the first
element of openness. Remember, if the public believes you are hiding
something, they will assume unethical behavior on your part. Likewise,
if what is done or decided appears to be inappropriate, or "not right,"
no amount of clarification will change that appearance.
The public holds elected officials to a higher standard of integrity than
the law requires. The concept, of judging by appearance of impropriety
carrying the same weight as the actual act of impropriety, is relatively
new in discussions of ethics. Some of it is an aftermath in the post Watergate
era, and the media's interest and ability to ferret out facts, and make
insinuations as news. As a result, ethical decisions and behavior must
not only be in compliance with the law and above reproach, but must be
beyond even the appearance of ethical violations.
This is extremely important, just to remain effective as a public official,
to have credibility, and ultimately electability. So, even for selfish
reasons, as well as the public good, situations and decisions that appear
unethical should be avoided like the plague. However, you cannot allow
fear of repercussions and judgment to prevent you from decision making
and action, because your constituency has a right to expect performance
from you in representing them in the representative form of government
we hold dear. The only course open to you is to have high ethical standards
and a personal system which ensures that those standards are maintained.
It is easier to make good ethical decisions if that is the expectation
of you in your job. Ethics laws and guidelines help in this endeavor. Having
simple and enforceable ethics standards and processes also is necessary
if there is going to be a consistency in ethical decision making. Most
particularly, training on the ethics laws and ramification, coupled with
decision making, problem solving and option analysis, can better prepare
officials to make ethical decisions.
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ETHICAL PRINCIPLES
There are some ethical principles common to most of mankind which have
come down through the ages in order for us to have survived and not destroyed
each other. Carol Whitcraft in her COGEL article previously referenced,
writes about the possibility of the human being, through evolution, becoming
ethical or altruistic in order to survive. She summarizes this thought
with:
The resulting genetic predisposition of humans to make altruistic decisions
is a resource that can be important in moderating our national addiction
to greed and self-gratification through education and leadership.
If we assume that, although flawed, the human being is basically good;
then, ethics is simply the art of reducing that basic "goodness"
to written concise rules, and there will be no problems. If, on the other
hand, we assume the human being is flawed, as is the biblically-based belief
of many, then the human failing of greed, corruption, lust, etc., will
always be interfering with a perfect ethical world. These two philosophies
of humankind are part of the problem of defining ethics, ethical principles,
or ethics laws.
While it is not possible to have it both ways in all things, it is possible
to achieve consensus on ethics standards, principles, and laws. It has
been so for a long time, whether or not it is due to an evolutionary propensity
or acquisition, the basic goodness of human beings, or a necessary expedient
for survival, some common principles have descended through the times.
Immanual Kant stated one of these principles: "Act as if the principles
underlying your actions were to become a general law for all of humankind."
The Bible states another principle in "Do unto others as you would
have them do unto you."
A principle of the common good over the individual benefit permeates all
ethics laws. The broad public interest is not to be sacrificed, nor the
public assets used in furthering private or personal gains. This is standard
in nearly all ethics laws. Likewise, a method for review of alleged violations,
some form of penalty and accountability, and education or training are
all now common principles of ethics laws.
A common principle of ethics which is often overlooked is that of examples
or role models. Clearly, in today's world, we could all use examples of
ethical behavior. More important in the long term is the effect of good
ethical behavior on the elected peer group of an elected official. Rather
than the "we've always done it that way," or the "everybody
does it" mentality, it can be popular (and very much electable) to
promote ethics and actually live it.
We have as a society of late come a long way to where being ethical is
no longer a thing for Mama's boys, wimps, and the like. Now, ethical heroes
can be popular. In fact, if one looks at heros in old West movies, or on
today's action movies, there are still some who are heros exactly because
they are ethical. William D. Hitt, in Ethics and Leadership, discusses
this concept when he states that "Leaders have considerable influence
on the conduct of followers." Likewise, he states, "Ethics and
leadership go hand in hand. An ethical environment is conducive to effective
leadership and effective leadership is conducive to ethics."
Sometimes society changes its standards and individuals are caught short.
We have seen examples of late in Senator Packwood's sexual advances. Society
has gone from very puritanical ways in the early days of our country to
the Tammany Hall days of Chicago. Then society changes back based on international
events, and most recently the increase in media attention and capability.
As Gary Hart found out, you cannot now challenge the media to find something
or they will.
This speedy ability to research using computers, internet, and faxes and
e-mail has changed the public's expectation of timing of information. If
something is known by the politician, it is likely the public will know
within 24 hours. The ability to orchestrate the media, or put the best
light on situations does not exist as it once did. This is a very positive
change in implementing ethical principles. This instantaneous availability
of information is an opportunity to present ethical principles, reinforce
ethical behavior, and eliminate unethical conduct that has never before
existed to this magnitude.
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ETHICS PERCEPTIONS
This may seem an unusual topical heading in a paper such as this, but the
public perception of ethical behavior of elected officials may be more
important than the law itself. After all, the law only specifies the potential
for various penalties, sanctions, or corrective actions. The public, through
the power of the vote, carry the ultimate penalty for an elected official.
Even if you comply with the municipal ethics code, or state Open Meetings
Act, the voters may perceive that you violated the community's code of
ethics. If they decide that, they will elect someone else.
It is unfortunate if the ethics laws do not adequately reflect the community's
sense of ethics. As Edmund Beard & Stephen Horn wrote in "Congressional
Ethics: The View from the House":
The least healthy situation in a democracy is one in which legislators
and constituents not only have different perceptions of what constitutes
ethical legislative behavior but are also unaware of their differences.
All too often on the national and sometimes state level, the public's perception
may be so different than the legislators' that this situation exists. It
may also happen to you at the municipal level. Do not be complacent on
things ethical. Talk to your constituents and find out what they feel is
"right." It is up to each elected official to become aware of
differences and perceptions and do everything in his or her power to remedy
the situation. Remember that the public often holds elected officials to
a higher standard of integrity than the law requires.
In terms of perceptions, it is important to mention one more aspect of
ethical perceptions. That is the perception that ethics can be used as
a political weapon against people who we do not support in elected office.
This is a caution discussed by Bruce Jennings in an article for the COGEL
journal, entitled: "Ethical Politics vs. Political Ethics: Too
Much of a Good Thing." He feels that partisan use of ethics disables
moral judgment in public life, and that such judgment is a necessary internal
gyroscope.
If the public is skeptical of government ethics, then observes ethics being
used for partisan political purposes, the skepticism can only increase.
Complaints filed during an election may or may not have validity, but the
person filing a compliant can time that filing for political effect. The
public official cannot, unless they wish investigations to go public, discuss
a complaint under investigation. Thus, the media and public can well condemn
an elected official and elect his or her opponent based on a complaint
of an ethical violation. Later, it may be proven that there was no violation,
but it may be too late for the elected official. Avoid this, by considering
the public perception before you act.
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ETHICS LAWS
Ethics laws generally encompass the ethical standards and expectations
of the public or the norm of that unit of the society. Since the laws are
made by imperfect human beings, and those that change behavior are particularly
hard to reach consensus on, the laws do not always mesh completely with
the public expectation. It is for that reason, that there are usually neutral
or objective processes or commissions set up for review of actions which
appear to violate these laws.
A good set of ethics laws is simple and clear. Of course, that is easier
said than done, when you try to legislate something based on values, morals,
and beliefs. The more divergent the population represented and their elected
representatives, the more difficult it is to develop consensus on ethics
laws. While other laws are designed for the common good, they are based
on legal principles and precedent, and are usually careful to separate
out values, beliefs, or morals, to achieve objectivity and neutrality (although
they may have some moral or societal custom as their underpinning).
Ethics laws attempt to codify morals, values, beliefs and judgment into
standards of conduct for all people equally. In making that attempt, ethics
laws take the moral or value standards (arrived at by consensus, voting,
negotiation, or compromise) of the country, community, or organization
(such as a municipality), and make them into law. Because individual values
and morals vary a great deal, ethics laws do not perfectly fit any one
individual's sense of what is "right."
Most of the time, ethics laws are relatively clear and easy to understand.
A clear conflict of interest between an individual's own financial interests
and the interests of the public is understood by most. The conflict between
the will of the majority and the interests of the minority is also usually
understood. The interest of the government (or community of people as a
whole) versus the interests of an individual is also generally understood.
This concept of altruism versus egoism is discussed by William D. Hall
in Making the Right Decision, in his chapter on "Is Business
Ethics Worthwhile?" Hall states that some trust and faith is required
by the business in pursuing hardcore altruism versus reciprocal altruism.
The issue of the common benefit superseding the individual benefit is one
of the cornerstones of ethical behavior in the public sector. Basically,
the common good must be given preference over the benefit to the individual
(as long as the individual's rights are protected), in an ethical decision.
Most ethics laws are written this way, and emphasize the individual monetary
benefit aspect. Nearly, everybody would agree that an elected official
or a public service employee should not use their position for personal
gain or to provide personal gain to another individual. However, everybody
may not agree on what constitutes personal gain (e.g. $, sex, votes, land,
intangibles, etc.), or the specific facts of the given situation.
If ethics laws are to be successful and enforceable, they must be written
to reflect the expectations of the unit of society for which they are written.
These laws should be as simple as possible, without sacrificing clarity.
Specific standards or expectations should be enumerated in the law itself.
Provision for education and training on the law should be built into the
law, as should enforcement and penalties. A neutral body should be set
up under a good ethics law to ensure impartiality in passing judgment on
issues brought before it.
There must be a fair, uniform process for dealing with complaints as to
ethics violations under the law. The privacy rights of individuals must
be carefully weighed against the public's right and need to know in any
ethics law. There must be an evaluation technique or method built into
the law, and some flexibility and ability to modify as needed. Penalties
need to be spelled out for certain behaviors, and prohibitions specified
on certain actions. The law must provide the process and mechanism for
adequate enforcement, if it is going to be effective.
There should be a method to ask for formal interpretations on close issues
prior to commencing particular actions relating to issues which are covered
under the ethics law. In some cases, as in the Legislative Ethics Law,
AS 24.60, there is a formal process for the Ethics Committee to issue written
decisions interpreting the law in a given fact situation (which must be
provided in writing by the requestor). Also, an expedited informal opinion
is also available from the Ethics office, but it does not bind the Committee
in any complaints as to violations. The Executive and Judicial branches
of state government also have separate codes of conduct.
Some employees or elected officials are proud to be independent Alaskans
and do not want to "submit" to any set of standards (particularly
someone else's or the government's). This attitude may be admirable in
some situations, but is inappropriate in terms of ethical rules of conduct.
Some will always test the laws or rules by "pushing the envelop"
of behavior. Others will violate the norms of society without thinking
about what they are doing. Still others may be enticed by riches, personal
rewards, or assurances they will not be caught, and lacking strong personal
ethics, may violate the society norm. Laws must therefore, make clear what
is a violation, provide a process for reviewing potential violations, and
provide an objective process of review that clearly recognizes due process
and equal protection rights.
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ROLE OF COURTS
The court system is amoral! That does not mean that individual Judges,
lawyers, juries or other purveyors of justice are individually or collectively
amoral or immoral. Quite the contrary. However, the legal justice system
in the United States, in order to ensure fairness, equality, uniformity,
and objectivity, (all desirable, constitutionally protected concepts),
has no moral or ethical values, feelings, or emotions. The law itself is
a system of justice dependent on written words and precedent. Some will
argue that the jury system can nullify the law (in honor of values, ethics,
or for other reasons of justice).
This paper is not a legal treatise, and I am not qualified to write such,
but the important thing to remember is that the courts are a very poor
place to decide matters of ethics. It is better if people individually
and collectively implement systems of ethics which set baseline legal parameters
of behavior (which the courts can then enforce, and yes, even interpret).
Society is the ultimate judge and jury of ethical conduct. The Ethics Codes
provide a baseline against which behavior is to be measured, but regardless
of the violation or penalty, the final word for elected officials is the
ballot box.
Certainly, an elected official who is wrongfully accused, or who feels
their reputation has been smeared may sue in court. However, the court
cannot grant them back what voters have taken away. That is why the perception
of ethical behavior is nearly as important as the actual behavior. Some
discussion of court cases experienced by the municipalities might be in
order.
In a Haines case, the school board held an executive session to consider
retention of the Superintendent of schools. A citizen's group felt that
was a violation of the open meetings law, and petitioned for a recall election.
The issue ended in court over whether the grounds in the recall were sufficient.
The Supreme Court finally ruled that there was no violation and the executive
session was proper. However, it is important to note that the citizens
voted, in two different recall elections, and most of the Board members
are gone now. The citizenry expectation in Haines did not match the wording
in the law.
In another case of the firing of a librarian in Anchorage, where the mayor
relied on a recommendation from an advisory committee that met in a closed
session, in violation of the Open Meetings Act, the courts decided the
individual was entitled to reinstatement, but not back pay. This went all
the way to the Alaska Supreme Court also. The court restated its three
step analysis for determining an appropriate remedy for an action or decision
made in violation of the Open Meetings Act.
The first requirement is that the governing body must show that a subsequent
ratification of the decision involved a substantial reconsideration of
the decision. If full and fair reconsideration did not take place, then
it must be determined if reconsideration is possible without invalidating
the earlier flawed decision. Then if reconsideration is not possible without
invalidating the original decision, the court must determine whether invalidation
is in the public interest. Needless to say these considerations and court
actions do not come without a price tag.
While the court has dealt with many Open Meetings Act cases, it is much
more uncommon to deal with a violation of an Ethics Code. This is because
the Ethics Laws have a due process procedure built in, and there are specified
penalties and authorities for discipline within the administrative structure.
The Court is not likely to look beyond the legislature for judicial review
of violations of the Ethics Code submitted to the legislature. Violations
of the Administrative Ethics Code (Chapter 52. Alaska Executive Branch
Ethics Act) are subject to judicial review, but it is not common except
when due process, property rights or other Administrative Procedures Act
violations are asserted.
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OPEN MEETINGS
Supreme Court Justice Louis D. Brandeis (1916-1939) once said that: "Sunlight
is said to be the best disinfectant." Since ethical considerations,
and the making of laws and governing are of concern to all citizens, it
is important that the process for making decisions be open to public scrutiny.
The Alaska legislature, as other legislatures have done, has reduced this
concept to a code of law. The Open Meetings Act affecting governmental
bodies is found at AS 44.62.310 and was most recently amended effective
June 3, 1994.
The Alaska Open Meetings Act has been in place, in some form, for some
time. It is consistent with the concept that the public's business is best
conducted in public, and that it is unethical to do otherwise, that this
and other such laws have been passed. Initially, prior to 1994, it was
a violation of the Legislative Ethics Code for a legislator or group of
legislators to violate the Open Meetings Act, now the legislature is bound
by the principles of open meetings, and to violate those principles violates
the Ethics Code.
Whether or not municipalities have formal Ethics Codes, the Open Meetings
Act still applies to them. In 1994, some municipalities lobbied hard to
obtain some clarity and lessening of requirements under the Act, and there
were changes made. However, it is still a tough law, and Seward, Haines,
Anchorage, and many other municipalities can vouch for the difficulties
encountered when the perception of a violation occurs.
The law is simple in its intent: To make all meetings of a public entity
open to the public with very limited exceptions. The Act requires advance
notice of meetings and the subjects to be discussed. It provides for exceptions
and exemptions, but very limitedly. It defines how many people can meet,
and what can be discussed if the meeting did not provide public notice.
The law allows only limited exceptions for executive sessions: 1.) matters,
the immediate knowledge of which would clearly have an adverse effect upon
the finance of the public entity; 2.) subjects that tend to prejudice the
reputation and character of any person, provided the person may request
a public discussion; 3.) matters which by law, municipal charter, or ordinance
are required to be confidential; and 4.) matters involving consideration
of government records that by law are not subject to public disclosure.
The Open Meetings Act does exempt a governmental body performing a judicial
or quasi-judicial function when holding a meeting solely to make a decision
in an adjudicatory proceeding. It also exempts: juries; parole or pardon
boards; meetings of a hospital medical staff; meetings of a governmental
body or any committee of a hospital when meeting solely to act upon matters
of professional qualifications, privileges or discipline; staff meetings
or other employee gatherings; meetings for participating or attending national,
state, or regional organizational meetings of which the government body
is a member. (However, see AS 44.62.312 for statement on narrowly construing
these exemptions).
The Open Meetings Act provides that a decision made in violation of the
Act can be reversed or voided. It provides nine criteria that the court
should review in making the determination of whether or not it is in the
public interest to do so. Another meeting with proper notice that actually
reconsiders the decision that was in violation, if the reconsideration
is substantial, may be a good enough remedy for some violations.
The Act also provides that advisory committees are exempt if they only
have authority to advise or make recommendations and no authority to establish
policies or make decisions for the public entity. The Act defines governmental
body (as assemblies, councils, and the like) that have the power to make
decisions on behalf of a public entity. The Act prohibits more than 3 members
or a majority (whichever is smaller) of a governmental body from meeting
for the purpose of considering collectively a matter upon which the governmental
body is empowered to act, unless such meeting has been duly called and
noticed, and is open to the public.
There are numerous court decisions on the earlier Open Meetings Acts prior
to the 1994 amendments. Some of these may no longer have legal precedence
due to the changes made. Since each fact situation is important to determinations
of violation, it is best to obtain an annotated copy of the Alaska Statutes
at AS 44.62.310 to read the notes on litigation. Then it is important to
actually read those cases for light on the court's interpretations. Two
cases are discussed very briefly in the Role of Courts section immediately
preceding this section.
The courts have exempted the day to day conduct of the state's business
and meetings necessary for that conduct. The courts have recognized the
attorney client privilege as operating concurrently with the Open Meetings
Act. As pointed out in the discussion above under the Role of Courts, the
courts have also defined the analysis necessary when voiding decisions
that were made in violation of the Open Meetings Act.
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SUMMARY
Ethical decisions are difficult to make, even with guidance. An individual's
ethical values differ from those of that individual's society. The norms
for that society need to be reduced to written laws or codes and all public
officials should be bound by those codes. Certain ethical principles are
standard to most modern societies. Those principles are that the public
good must come before private gain, and that each elected official should
exhibit integrity and openness in matters affecting the public. Financial
conflicts or appearances of conflict should be eliminated.
There are examples of codes of ethics available, and the Council on Governmental
Ethics Laws (COGEL) is in the process of developing a model code. It is
important that codes reflect the values of the community, and be as simple
as possible. Codes should be in writing, to avoid the appearance of not
caring, but more importantly to guide employees, supervisors, and elected
officials. Other ethics essentials are listed below:
1. Individuals chosen must have a strong sense of self-worth, personal
integrity, and altruistic goals.
2. Organizational values, goals, and ethics standards must reflect society's
expectations and be reduced to clear written form.
3. These written laws or guidelines must contain ethics standards that
are reasonable, practical, obtainable, and enforceable.
4. A program for education, training, technical assistance, and advice
must be established to ensure understanding of expectations.
5. A panel, board, or review system should be established, that allows
"official" interpretations, makes judgements on violations, and
enforces the ethics standards or laws.
6. Ethics laws must provide for a systematic method for evaluation, flexibility,
modification, and change as society and needs change, while remaining stable
and constant at the core.
7. There must be individuals of perseverance, knowledge, skills, and tenacity
to ensure that ethical conduct becomes the accepted norm, and the "right"
way succeeds.
I'd like to close this paper with a quote from Paul R. Leonard, Lt. Governor
of Ohio:
Ethics must come first. Without it, there is little or no respect for elected officials. Without respect, there is no credibility. Without credibility leadership is impossible. And leadership is necessary to address the tough issues in the years ahead.
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