Compliance Versus Ethical Capacity
KeywordsPublic Sector Capacity Building Public Administration Ethic Code Public Sector Employee
Amongst the founding principles of public administration is the idea that administrators are implementers of policy; setting of policy agendas and the construct of legal authority for public programs are the domain of the political sphere. The “good” of public administration has historically resided in notions of administrators comprising a core of expertise within the public sector, engaged in the enhancements of efficiency and effectiveness in achievement of purposes set before it, broadly defined as the public interest. The public interest is variously considered to be a range of ideas from defending basic human rights to more pluralist views to “outcomes best serving the long-run survival and well-being of a social collective construed as a public” (Bozeman, in Lawton et al. 2013, p. 35). In pursuing programs to serve the public interest, administrators concern themselves with stability of public organizations and creation of positive outcomes for client groups (Jordan and Gray 2011).
The development of ethics in public administration employees has settled into two basic schools of thought. The compliance-based approach is informed by the imposition of standards and bright-line canons of what the agency, or unit of government, informed by the cultural context of community outside the agency walls, finds to be good and bad. The capacity-building approach means to grow ethical understanding on an individual level, recognizing that decisions are made of a moral/ethical character at the personal level. This entry first considers ethics in public service generally, to provide context, and then explores each of these alternatives in turn. Contrast and concluding thoughts are then provided.
Ethics in Public Service
Ethics, “standards of good or bad behavior and action,” are sometimes confused with morals or “individual appreciation of the fundamental…definitions of good or bad” (Jordan and Gray 2011, p. 6). Ethical issues are “those issues, distinct from political, legal or social, that are concerned with right and wrong actions and outcomes for both individuals and the organizations” for which they work (Lawton et.al. 2013, p. 1). Ethics are held to be agreed upon manifestations of prevailing morality; individuals act within or outside of the normed framework of ethical standards. In the public sector, such considerations are manifestations of applied or practical ethics (Pevkur 2007).
The dynamic between public administration and citizens has seldom been settled territory. Given government’s wide range of activities, the public may not clearly see the intent and purpose, let alone the results, of such action. Further, the existence of high-profile cases of public corruption, coupled with a seemingly irredeemable predilection in the mass media to uncover yet more cases of corruption, casting them as assaults of the highest order on the collective public, has led to a culture that believes strongly in the fallibility of its public service, with little or no proof required. This could, on one hand, be portrayed as a passionate view toward ensuring accountability from the public service and a need to increase transparency given serious, ongoing, demonstrated shortcomings on the part of public sector employees. On the other hand, the vast majority of public sector employees are not engaged in nefarious activities; there is therefore no need of a rooting-out of rampant corruption or at least not for that stated purpose.
In the public sector, there is a distinct ethos, an obligation of service weighed against the cold rationality of technical expertise; public administration has prided itself on skillful use of knowledge and a thoughtful human touch. Deontological theory is “concerned with what people do, not with the consequences of their actions”; that is, “Do the right thing; do it because it’s the right thing to do; don’t do wrong things; avoid them because they are wrong” (BBC 2015). The emphasis is on principles and responsibility (Brady 2003). Utilitarianism as a teleological, consequentialist approach would have it that the greatest good for the greatest number would equate to ethical practice, but harm to a few may prove too great a cost to pay to justify such activity. In utilitarianism, purpose of action holds sway. However, it has been noted time and again that purpose does not outweigh principle regularly or consistently enough for such an outcome to be assumed, particularly in the public sector, although the adoption of a business mindset has often been seen as a cure-all for the afflictions of government. There is a need to hold true to virtue in the public sector, and to think about the difficult questions of how public behaviors may be perceived, even if and especially when it is likely the behavior will be criticized by the public regardless of the soundness of its root concept.
The manner of acting within or outside ethical standards only partially explains the concern of ethical judgment in the public sector. Ideally, the citizenry should want its public sector employees to behave and act in a manner that is informed by the social contract. If full moral maturity is not possible, at the principled level suggested in a schema such as Kohlberg’s model of moral development, then behavior should at least be based on preservation of conformance with expectations of the public as to acceptable behavior and maintenance of the welfare of the working group within the agency environment. One may think that that “preconventional” behavior, “based upon rules and authority and driven by fear of punishment” (Lawton et al.2013, p. 15), would be insufficient in a public service model. If public workers are only motivated toward moral behavior by following a rule, to avoid punishment, or for what they may extract from the exchange, then the exchange is not about service to the public but rather service to self.
Compliance-Based Approaches to Ethics in the Public Sector
Compliance programs have been on the rise since the 1960s. Compliance-based approaches to ethics in public organizations, sometimes called low-road approaches, typically involve adoption of a code of ethics, with attendant training and statement of understanding of and/or commitment to such code. Compliance-based approaches are popular because, as Roberts (2009) noted, they provide a level of protection from the acts of personnel and reduce demand to implement more wide-reaching and expensive programs that seek to enhance integrity. They are low-road approaches because ethics codes are utilitarian: They are easier and cheaper to design and implement than alternative options, including so-called high-roach approaches that focus on developing individual integrity and ethical capacity.
The unveiling of ethics codes can appear as public theater, with reformist-minded public servants thwarting the specter of widespread governmental corruption, whether or not it exists, through proscription of numerous potential excesses. The list of forbidden behaviors is too short to cover all ethical eventualities that may be encountered in the work of the public sphere; even following the list to the letter does little to teach a public official how to think about ethics, why certain acts are relatively good or bad, and how to make better ethical decisions. Instead of government rooting out the individual actors engaged in corrupt behavior, the whole metaphorical barrel is mistaken and found suspect for its few bad apples. This is especially damaging because “the blunt instrument of law and enforcement frequently strikes the wrong target, leading to unexpected consequences” (Lager 2010, p. 216).
The training conducted for compliance-based programs is sometimes focused on webinars and one-way knowledge transmission methods, to keep costs low. As an example, the Palm Beach County Florida Commission on Ethics has a website (http://www.palmbeachcountyethics.com/training.htm) for all county officials, employees, and advisory board members, which provides training via a training video (https://www.youtube.com/watch?v=Kzx657RRUUs). The video is just over 48 1/2 min long. Visitors to the website are directed to a PDF acknowledgment form to be signed and returned to the administration of the agency responsible for the staff member. The form makes note that the official/employee watched the video on the Internet or on DVD, or attended a live presentation; that the individual understands that he or she is responsible for “understanding and abiding by the…Code of Ethics as [he or she] conduct[s]…assigned duties”; and indicates where the completed form is to be sent.
For its part, the video training is seemingly short, at under an hour, for something as important as public sector ethics and would appear to occur infrequently for each staff member. There is no formal assessment involved in this training and even the presenter indicates how in-person training leads to interaction in addressing specific case examples that does not occur via the online version; this lack of assessment and interaction, coupled with no definitive check on any staff member actually having watched the video before completing the acknowledgement form, makes clear the existence of serious limitations of this sort of compliance-based approach. The training fails to demonstrably achieve the three points in creating effective deterrence against unwanted behaviors: “an individual must know the legal rule, be willing and able to apply that knowledge to a conduct decision, and then determine that the threat of punishment exceeds the benefit of the offence” (Lager 2010, p. 217).
No matter how good the training is, the training itself is incidental to the completion of the form and the acknowledgment of staff responsibility for the code. The existence of code is more important than the training or the understanding of the staff member; the completion of the form allows the agency and government to proclaim full compliance with the code, adherence to training standards, and reform of corrupt practices, even if not much has actually been accomplished to improve ethical capacity. Agencies have an interest in arguing that they are compliant and successful, but this may have little to do with actually behaving ethically; lack of training is probably not the reason for unethical behavior, anyway, when cutting corners because of unreasonable deadlines or simple career-related stresses are reasons enough for some employees (Lager 2010).
Compliance-based programs are sometimes criticized for a variety of reasons. Ethics codes often focus upon what employees should not do; the tone of such programs then provides a baseline for behavior that, at least in theory, could result in an employee obeying all aspects of the letter of the code but still behaving unethically. Depending on how the various points in the code are written, certain expected or proscribed behaviors might be extremely vague or so specific as to impose undue constraint. As an example, the American Society for Public Administration includes as the first point of its code of ethics: “Advance the Public Interest. Promote the interests of the public and put service to the public above service to oneself” (ASPA 2013); yet, the interests of the public are seldom ever clear or plainly described, or universally agreed for such a broad pronouncement, and promoting such interests avidly might even include instances where serving the public may include acting in ways that some could conclude as doing some small bad for greater good. This may be acceptable from a utilitarian perspective but fail ethically from a deontological basis. As another example, the Palm Beach County, Florida Code of Ethics has a standard for public gifts of $100, but it could be reasonably offered that the ethical difference between a $101 “inappropriate” gift and a $50 lawful gift from someone acting to curry inappropriate favor is relatively small – both are wrong, and the lawful $50 gift with intent to curry favor may be even more objectionable. Abiding by the law in such an instance, no matter how well-defined the standard, does not necessarily equate to acting ethically (Palm Beach County, 2011).
The problem of ethics codes is made worse by an overreliance on expertise outside the level of the individual public actor within organizations. Relying upon positions such as staff ethicists, compliance-based approaches provide for official interpretations of the ethics code for individual cases. These interpretations over time form a body of understanding that can serve as more of a constraint on individual behavior and practice, given the differences that may exist between cases, than as a source of clarification for the code and expected practice for public officials. Further, these outside experts cannot know and understand the work of all agencies or fully engage in the decision-making approaches and culture distinctive to each organization.
Having examined the compliance approach, we now turn to an examination of ethical capacity building in organizations.
Ethical Capacity Building in the Public Sector
In contrast to compliance approaches, capacity building in ethics seems to take up more the Socratic question of “how should one live?”; we analyze our behaviors and decision-making because “every act of the human soul involves an act of reason” (Segvic 2009, p. 171). Rather than being concerned about following the letter of rules in detriment to considerations of their ultimate impact upon one’s life, career, and service to community, it might be better to be a good person and cultivate virtue in all aspects of one’s life. Ethical capacity shifts the focus in organizations from a legalistic, compliance-based standard of ethics to a cultural standard of appropriateness – of right and wrong from top-level leadership through the organization’s staff. Ethical capacity building is taking the high road, as Rohr stated: “Relying on moral character, this route counts on ethical managers individually to reflect, decide, and act. Individual responsibility is both a starting and an end point on the integrity route in public service” (Rohr, in Pevkur 2007, p. 17).
In the course of ethical capacity building, training may focus more on the differences that sometimes exist between actions that are merely legal and those that are relatively more or less legal and more or less ethical. This implies the building of an ethical decision-making model, wherein an employee might discern a dilemma and characterize its ethical implications, considering a number of alternative approaches to addressing the issue(s) involved), identifying possible consequences of one’s actions given the situation, including the possible behaviors of others and effects of the decision, choosing amongst alternatives, and resolving the issue (Cooper 2012). Employees become more enlightened, and capable in decision-making, and hence more able to perform not only acceptably for the public but admirably.
It is possible that some public decisions may involve a variety of unacceptable outcomes, in which case one might choose the least repulsive. Government must balance deontological issues with cultural issues and the repercussions of employees’ actions. The questions encountered in the public sector are not always given to positive outcomes for all concerned, nor do they necessarily leave those making the decisions with positive feelings of accomplishment, especially when some parties are left underserved do to resource issues, legal limitations, or policy parameters. In the public sector, it is important to remember that institutions are made of the people and like people are similarly subject to failure. The decisions made in the public sector may be much different than those made in the private sector; both sectors seek to function according to expectations, but it would not be appropriate for a public sector employee to be primarily concerned with profitability, when accountability or operating within authority granted to agencies is the more appropriate standard.
Even assuming that there is no absolute standard of right and wrong, this does not imply that there is no law. The law always provides a framework, in ethics code or capacity-building environments. Even in the instance of an agency with an ethics code, law would necessarily take priority over internal ethics codes, to the extent that those ethics codes are not themselves made law; even in the instance of ethics-code-as-law, compliance with other levels of law could possibly overtake compliance with a local-level ethics code. As an alternative, the goal of capacity building becomes a model of improving the decision-making model used by employees with a mindfulness toward service obligation, within the law. In this respect, understanding how decisions are made is not a one-time objective in a perfunctory training session but an ongoing obligation, so that decision-making processes can be continually enhanced. The point of this approach is to increase the legitimacy of the public enterprise.
The reasons for the lack of popularity of capacity-building approaches are the need to take time and resources to reinforce capacity building, including discussion sessions and additional training well beyond that of the compliance approach; the lack of a clear “best practice” method for capacity building that is easily implementable across all public agencies; and perhaps an unwillingness for public agencies to take up cumbersome topics of ethics and morality, including differences in service level, approaches to various populations, and the like, for fear of possible liability. There is also the need in the public sector to equate time spent and resources used to performance measures, and specifically notions of outcomes (benefit for cost), and the use of time and resources for ethical capacity building may not be as apparent. Capacity building activities, like other training activities in times of economic austerity, may even be seen as wasteful, even though the same accusation could be easily leveled against compliance approaches that deliver little real benefit beyond the appearance of accountability, along with a flurry of activity and associated paperwork.
Contrasts and Conclusion
For most organizations, the reality of ethical considerations amounts to a continuum between law and values (Pevkur 2007). Even where there are ethics codes, there is no monolithic organizational approach that can indoctrinate all staff members equally to think and behave alike with regard to ethical considerations or any other type of question for that matter. For this reason, codes and compliance-based approaches might be seen more as tools for controlling public dissent, rather than for controlling the behavior of public employees.
Williams called utilitarianism a “minimum commitment morality” (1993, p. 84), and so it is with ethics codes. Institutions focusing solely on observance of ethics codes can pronounce themselves ethical with minimum commitment, showing “the minimum requirements for being in the moral world, a willingness to consider other people’s wants as well as one’s own” (Williams 1993, p. 84). Training, ethics committees, staff ethicists, and other tropes of organizational compliance-based ethics are at best a stand-in for individually oriented capacity building. At worst, these approaches lull organizations into believing that they have “done enough” as far as ethics are concerned, when ethics should be part of every work day and the subtext of all interactions with the public. Ethics codes rely upon the hypothetical imperative – a weighing of consequential benefits and penalties for public action – and in doing so, fail to serve the greater nature of public service. On the other hand, capacity-building approaches require effort and resources, and many public sector organizations are unable or unwilling to make such efforts or expend such precious reserves in the current, difficult operational environment, toward ends that can be difficult to quantify, in the face of a suspicious public. It can be difficult to put together a workable and effective capacity-building program to encourage and inspire ethical development in employees, and this difficulty may dissuade public agencies that might otherwise attempt such approaches. Combinations of both approaches on the continuum are possible and may provide workable alternatives for public organizations to consider; capacity building in the management corps of an agency may be useful, for example.
The universal nature of right, wrong, and criteria for what is appropriate, for the public’s benefit, is too important as a founding concept to charade with a 45 min YouTube video and a signed acknowledgment form. Such activity both undercuts the values-orientation of a service-minded public sector and ignores the motivations of those who would ignore codes and training regardless. The reality of the situation is often that public employees, like people in the community around the organization, are themselves driven by personal values that speak to duty and obligation to service.
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