Down the rabbit hole of ethics in Wonderland
There is a subtle destination between ethics and morality. Morality provides guidance in making choices conforming to prevailing mores. Ethics entails special relationships establishing responsibilities to others. Ethics was historically associated with the learned professions of law, medicine, and theology. It imposes a fiduciary duty to serve the best interests of others. This is particularly compelling when there is a disparity of expertise, resources, a dependency or vulnerability. Elected public officials are subject to a high ethical standard. The ethical integrity of elected public officials is integral to the representative system of government. Like love and marriage, ethics and democracy go together like a horse and carriage. You can’t have one without the other. A breach of ethics by an elected public official is the adulterous handmaiden of autocracy.
As does Spandex, ethics conforms to contours of the times. It is ill-advised to willy-nilly condemn the ethics of yesteryear. Bygone ethics provide insight to make wiser and more prudent choices in the present. The ethics imposed on elected officials has undergone substantive changes over the past decades. The practice of influence peddling, business profiteering, nepotism, graft, machine politics, sexual harassment and promiscuity was ignored not too long ago, or accepted as a privilege of office. The culture of ethics has come a long way, yet has not reached the Promised Land, and never will. Some elected officials in Wonderland continue to slither down the rabbit hole of ethical ill-repute.
Elected public officials must conform to the highest standards of ethics applicable to their official responsibilities, and in furtherance of the best interests of their constituents. They must avoid even the appearance of impropriety. Public confidence is indispensable to public trust. Should a governing body establish an Ethics Committee (herein the “Committee”) to hear complaints against its members, the appearance of impropriety in either the initial formation or continuing operation of the Committee is counterproductive. The following considerations are suggested:
1) Its members should include citizens broadly representative of the constituency served. To avoid the appearance of bias or partiality, as to discourage internecine conflicts, a member of the governing body should be appointed as a liaison to the governing body, however must not participate as a voting member under the admonition “Judge not, lest ye be not judged.”
2) Citizens wishing to volunteer to serve on the Committee should submit an application to the governing body outlining their qualifications, credentials, and reasons for wishing to serve. Applicants should appear in a public forum to make a presentation, subject to pertinent questions from the governing body and the public. The governing body thereafter must appoint committee members whose terms may be staggered, and whose numbers may be augmented by alternatives to serve in the absence or resignation of a regular Committee member. In lieu of a Committee, an impartial professional mediator well versed in government ethics could be appointed to hear and determine ethics complaints.
3) The Committee should meet at least annually to provide the governing body with a status report and to make any recommendations. It would convene when an ethics complaint is lodged. As a threshold matter, the Committee must determine whether a complaint has merit on its face to proceed. Considerations on the merits of a complaint should afford minimum fairness, including notice of the ethics violation(s) alleged, the right to deny the violation(s), or present positions of extenuation, justification, or mitigation.
4) Independent counsel should be engaged to initially assist the Committee to develop guidelines, including meeting protocols, rules of procedure, and scope of unethical behavior within the Committee’s assigned purview. Counsel should attend hearings to provide advice to the Committee. This would permit the Committee to adjourn in order to confer with counsel on legal issues under the lawyer-client privilege (e.g. whether an ongoing criminal investigation would be compromised, or whether disclosure would violate an asserted legal privilege).
5) Final determinations of the Committee are not for the purpose of initiating a criminal charge or impeachment proceedings from office. The findings made by the Committee must however be disclosed to the public and made available to constituents in determining whether to recall, or not to reelect, an ethically challenged member of the governing body.