Markkula Center of Applied Ethics

Law and Ethics in Public Service

By Carrie Jaffe-Pickett

What is the distinction between law and ethics? That question provoked animated discussion at the Center's Government Ethics Roundtable held August 9, 2013 at Santa Clara University. The panel was led by Joan Cassman, partner with Hanson Bridgett L.L.P. in San Francisco, and JoAnne Speers, executive director of the Institute for Local Government in Sacramento.

"Ethics" explained Speers, "is what we ought to do-following the law is what we must do." She explained that law drafters have two tools to promote ethical behavior in public service: transparency measures and prohibitions.

Transparency measures require officials to disclose information to the public, such as the identity of campaign contributors. Transparency measures leave it to the voters to decide whether they approve of the information being disclosed.
Prohibitions, on the other hand, make a judgment that certain actions are not OK, such as voting on a matter about which the official has a conflict of interest.

The speakers cautioned that you cannot always write laws to prevent bad things from happening. This is why abiding by the law (which Speers described as a "floor" or minimum standard of behavior) is just step one of the analysis of what to do in a given situation. "Once one has satisfied oneself that one is meeting the requirements of the law," she said, "step two is to analyze what one ought to do, using such values such as trustworthiness, loyalty, responsibility, respect, and fairness as a reference point." Her strategies included being clear on the importance of values-based decision making, and making ethics part of public discourse and organizational dialogue.

Cassman, who heads the Public Agency Section and Government Group at Hanson Bridgett, delved into the role of agency counsel in government decision making. Of course, city attorneys and county counsels are responsible for advising on the legality of potential actions. In some municipalities, counties, and agencies, that is the extent of counsel's responsibilities, although Cassman said in the best situations, attorneys also take a role in raising ethical issues that may go beyond what is legal. The city attorney sets the example for ethical behavior, and should encourage open dialogue ideally when there is no pressing issue at the table. The city attorney should also encourage staff training on legal and ethical issues.

The panelists also presented two case studies. One involved commissioners from Cibola County, New Mexico, who used taxpayer money to fund trips that looked more like vacations than business. [Watch a video summary] While some of their expenses were clearly illegal, others might have been acceptable under the law but were questionable ethically. The second case dealt with a public agency CEO who had a private—and potentially conflicting—consulting business on the side. [Read the case]

Participants in the Public Sector Roundtable include local officials from Silicon Valley, who attend in order to gain a fresh perspective on key but often misunderstood topics in ethics and government.

RESOURCES:
Public Service Ethics Laws booklet

Promoting Personal and Organizational Ethics in Public Service

The Front Page Test: An Easy Ethics Standard

Understanding the Role of Agency Counsel:


Carrie Jaffe-Pickett is the assistant director of communications at the Markkula Center for Applied Ethics.

August 2013


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