Public Sector Ethics
May 16, 2014
Ian Greene
Introductions
• My background
• Your work and background
• Principles of public sector ethics develop in every country as the
“administrative state” expands. Canada’s experience provides one
example.
• Those drafting the ethics rules in each state tend to look at
experience in other states and adopt “best practices.” Canada and
Palestine have something in common because of influence of
British and French legal systems in both countries.
• The updating ethics rules, education, and enforcement procedures
tends to happen after a scandal. Proactive planning is rare, but
sometimes happens.
• Ethics scandals are the key factors bringing down governments as
well as corporations.
Mutual Respect
• Democracy: equality and respect for all: mutual
respect.
• Dworkin: “individuals have a right to equal concern
and respect in the design and administration of the
political institutions that govern them. They possess
this right not by virtue of birth or characteristic or
merit or excellence but simply as human beings with
the capacity to make plans and give justice.”
• We owe the same consideration to others, when
making decisions that affect them, as we feel we are
owed when others make decisions that affect us.
• Mutual respect is the basic principle behind democracy
Origins of mutual respect
• World religions: every human being is of
equal worth, equally deserving of respect.
(But religions, like politicians, can become
“corrupt,” and abandon principle to promote
organizational goals.)
• Philosophy of liberalism: evolution over 2
centuries. Liberalism, socialism, reform
liberalism, neo-conservatism and neoliberalism; current situation
Five principles of democracy
• Free and fair elections
– Attempt to find consensus
– If consensus cannot be reached, deference to the majority
• Minority rights
• Social equality
• Freedom
– Freedom to determine one’s life without harming others
– Freedom of conscience, religion, expression, association,
media
• Integrity: honesty and compassion, together with high
standards for work, competence, treating others fairly
and respectfully, respect for rule of law
Principles and Duties in a Democracy
Fundamental principle
Mutual Respect
↓
General principles
Free/Fair
Minority Social
Freedom &
Elections
Rights Equality Integrity
↓
Ethical Duties
Impartiality Fiduciary Trust
Accountability
↓
Legal Principles
Rule of Law
Natural Justice
Fairness
↓
Ethical Supports
Codes of Ethics
Rules controlling conflicts of
Ethics Commissioners interest, lobbyists, party financing,
Ethics Audits
whistleblowing, expenses,
Official Inquiries
accountability
Ethical Analysis
• Two approaches (from philosophy) to ethical
analysis:
– Consequentialist (similar to teleologists [telos: final
cause] or naturalists): judge an action by its likely
result. Eg. utilitarianism (greatest good for the
greatest number). Sometimes the means justifies the
end.
– Intentionalist (also called deontological [deon: duty]):
fundamental principles must be applied instead of
focusing on consequences. Eg., “do to others as you
would have them do to you.” Focus on the action, not
the result. Is the action morally justified? The end
does not justify the means. The rule is universal.
– Fortunately, these two approaches often lead to the
same conclusion as to the proper action in an ethical
dilemma.
Importance of Ethical Reasoning
• It is important to be able to justify a decision in relation to
an ethical dilemma. Public servants may be asked why they
chose a particular action.
• Public officials could do either an intentionalist analysis, or
a consequentialist analysis, or both, and then be prepared
to be accountable for the decision.
• If possible, it is useful to discuss one’s analysis with another
person, without violating privacy. Two heads (or more) are
nearly always better than one.
• Governments sometimes have trained “ethics counselors”
in each workplace with whom public servants can discuss
ethical dilemmas with confidentially. (In Ontario, public
servants can consult confidentially with the Office of the
Conflict of Interest Commissioner.)
Watergate heightened ethics
awareness in public sector
• Recommend All the President’s Men, a Robert
Redford film
• Amazing how nearly the entire upper level of the
Nixon administration became involved in
corruption and cover-up
• David Frost interviews with Richard Nixon 1977:
http://www.dailymotion.com/video/x1t2uf_richard
-nixon-interviewed-by-david_news
• Charbonneau inquiry in Quebec: bribes from
construction industry and mafia to “fix” contracts
from municipalities and provincial government
and subsequent cover-ups
Party Financing
• Why is political party financing regulated in
Canada?
– Disclosure of sources of donations over $100
– Limits to total amounts of individual donations
• Canada: $1,200 to candidates and $1,200 to parties
annually (also leadership contestants)
• Ontario: Used to be a limit of $750. Now $9,300 to a
party and $6,200 to riding associations to a maximum
of $1,240 per Riding.
• Ontario Municipalities: $750 per candidate, maximum
$5000 donations in a single municipality
Fund-raising by parties
• Is it acceptable for the party in power to organize VIP dinners
with cabinet ministers for donors who give the maximum,
paid for by taxpayers?
• My experience as a Minister’s assistant
• Payments from political parties: Is it acceptable for parties
with excess funds to cover personal expenses of key leaders?
Pay a salary supplement?
• Salary supplements may be acceptable if
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Not tax-subsidized
Recipients pay tax on amounts received
Donors are made aware of how their donations are being used
Limits to donations that go to this purpose
Donations and payments fully and publicly disclosed
• Leadership campaigns: what should be done with surpluses?
Municipal politics
• Influence of development industry a big problem in Canada
• 1988 Toronto municipal elections: three-quarters of political
contributions from development industry
• Toronto’s accountability officers:
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–
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Integrity commissioner (conflict of interest commissioner)
Auditor general
Lobbyist registrar
Ombudsman
• Now 38 municipal conflict of interest commissioners in
Ontario
• Early stage of development
– Codes of conduct sometimes too weak
– Independence of commissioners sometimes not guaranteed
Lobbyist Regulation
• Began in Canada in late 1980s in response to
undue influence by lobbyists bidding on Terminal
One at Pearson Airport in Toronto, and decision
by Air Canada to buy a fleet of Airbus airliners.
Now most provinces and many municipalities
require lobbyist registration.
• All lobbyists (in house or “hired guns”) must
register and disclose whom they are lobbying and
the reason they are lobbying.
• See web sites revealing federal, provincial,
municipal lobbyist registries.
A Code of Ethics for Political Parties
• Many corporations now have codes of ethics
• Objections to organizational codes of ethics
– A tool for criticizing the organization
– Loopholes
• Benefits of articulating a party’s values
• Considerations in developing a code:
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Extent to which they realistically express values
Extent to which all levels feel bound by code
Ability of organization to enforce code
Should be “bottom up”
Cover issues related to nominations
Ethics commissioners
• Canadian innovation dating from
recommendations of John Black Aird in
Ontario in 1987/88
• Major role: educative
• Secondary role: investigative
• Ideal background: retired judge
• Commissioners are invited to explain Canadian
system around world
Appointment of independent ethics
commissioners in Canada
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Ontario
British Columbia
Nova Scotia
Alberta
Newfd/Lab
Saskatchewan
NWT
PEI
New Brunswick
Nunavut
Manitoba
Yukon
Quebec
House of Commons
Senate
1988
1990
1991 (designated judge)
1992
1993
1994
1998
1999
2000
2000
2002
2002
2002 (jurisconsult) & 2012
2004
2005
Conflict of Interest Events Index
Pre- and Post-Commissioner
Total number of substantiated “events” (2006)
100
90
80
70
60
Index X 100 50
40
30
20
10
0
Pre-Com
Post-Com
Ont
B.C.
N.S.
AB
Nfld
Sask
NB
Man Canada
Jurisdiction
Jean Fournier: building blocks for a
successful public ethics regime
• 1. A code of conduct for parliamentarians;
• 2. An independent but accountable
parliamentary ethics commissioner;
• 3. A legislative ethics committee
• 4. A strong emphasis on advice and prevention;
• 5. A robust disclosure and registration process;
• 6. An investigative function with appropriate
powers;
• 7. An external review process, and
• 8. Regular exchanges of best practices.
Anti-Corruption Measures
• U.S. legislation prohibiting bribery of foreign officials or
companies ~ 15 years ago led to pressure on all other
governments to do the same. United Kingdom enacted
legisatlion soon afterwards.
• Canadian legislation enacted ~ 10 years ago; first
convictions of Canadians last year.
• Prosecutions: U.S. approach is to have companies do
their own investigation in return for lesser penalties on
the companies. Officials to be prosecuted as if
investigation done by government. Otherwise,
companies could be banned from bidding on U.S.
government projects.