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Ethics in Public Service: Dimensions and Challenges

In modern times, ethics in government have become not only something of great public interest, but also an important area of study in the academic fields of politics and government. Ethics and integrity in public service are more than a project of value or moral education, however well-designed it may be. It cannot be viewed in isolation from systemic challenges, and must be part of a holistic institutional structure and process that would promote and sustain integrity in the public service as well as other aspects of life in a holistic infrastructure of integrity. A comprehensive and institutional approach strongly backed by highest level political commitment is indispensable.

Here I discuss the meaning and importance of government ethics, different types of unethical conduct in the context of government, and issues and debates surrounding the establishment of ethical codes in government.

Why Public Sector Ethics?

The “others” that are the carriers of the duties and obligations to provide us with our legal and moral rights, freedoms and welfare are usually understood as the state or the public sector. The state is not only in the ethical theory of positive and conventional rights the foremost provider of rights and welfare, but the state is also the main provider of rights as understood by most people and in most circumstances. In other words, negative duties are an obligation for everybody, whereas positive obligations are the duty of some particular group or institution, usually the state. The public sector or the state is the government with all its ministries, departments, services, central/provincial/local administrations, parastatal businesses and other institutions.

The public sector is composed of two core elements; at the political level there are the political institutions where policies are formulated and the (major) decisions are made, and at the administrative level there is the public sector administration, which is in charge of implementing these policies and decisions. This implementing level is also called the civil service or state administration or bureaucracy. The distinction between politics and administration is not entirely clear, however, because the administration also have quite some discretionary powers.

Public sector activities range from delivering social security, administering urban planning and organising national defence to the provision of health, schools and roads. In principle, there is no limit to what the state can do. There is, however, much debate on how much the state should intervene, like in the economic sectors and in the private life of their citizens. This is a political question, and the debate about the role and the size of the state and the public sector (as opposed to the private sector) is probably the single most important dividing line in political philosophy, with the socialists preferring greater state involvement, libertarians favouring only minimal state involvement (security and property protection), whereas conservatives and liberals are favouring state involvement in some aspects of the society but not others.

Ethics is rarely a matter of concern in the ideology debate on the role of the state, but ethics is a natural concern in the discussion on the actual role of the politicians and the state administration. No matter how big and what role the state is playing (and supposed to be playing), both politicians and civil servants have discretionary powers; they make decisions that affects a lot of people. Therefore, these decisions ought to be based on some form of ethics. For instance, the public (a nation’s citizens) will normally expect the country’s politicians and public servants to serve in the public interest, and to serve in a rational and efficient way. They will not want them to pursue narrow private, personal, or group interests. Professional, public sector ethics of civil servants and politicians are somewhat different from the personal ethics of individuals. In addition to the personal ethical values and principles of individuals (like respect for others, honesty, equality, fairness, etc.), the professional public servant faces another context and an additional set of values and principles. Although the public sector is a labyrinth of agencies with different tasks, reporting lines, levels of responsibility and ethical cultures, we are looking for these “universal” or basic principles of public service.

There are also some differences between public sector ethics and private sector (business) ethics. The aim of the private corporation or business is, in general, to make money, whereas the public sector is meant to perform functions for the society as a whole, according to general and political priorities. For instance, a private company can choose to donate some of its profits to charity, but a public agency may be prohibited from such largesse with public funds (without a specific mandate to do so). The context is different, and the principles of operation between the public and business sectors differ. According to Kinchin (2007), the ethics of public service is (should be) based on five basic virtues; fairness, transparency, responsibility, efficiency and no conflict of interest. There are, however, other principles in operation, and public servants face several dilemmas, for instance when the bureaucrats’ private ethics collide with his professional public work ethics or organisational cultures.

Government Ethics & Effective Public Administration

Another common argument for government ethics focuses on effective public administration. Collectively, Canadian governments at all levels are responsible for billions of dollars in taxpayers’ money and billions more in public assets and property. Moreover, governments are responsible for providing very important services to citizens, such as social services, public utilities, police services, and national security. Citizens, therefore, have a strong interest in ensuring this public money and property, as well as services upon which they depend, are managed as efficiently and effectively as possible. This requires taking precautions against activities that cause widespread government waste and inefficiency.

Government ethics, properly enforced, can be a valuable means for protecting against government waste and ensuring effective public administration. Such a code can prohibit many of the activities that lead to waste, including theft by public officials and use of government property for private gain. It can also address issues such as bribery and conflicts of interest; activities that can lead public officials to sacrifice the public interest in the administration of programs and services for private gain and benefit.

Unethical Conduct By Public Officials

What sorts of conduct are commonly considered unethical?

With respect to government and public officials, several different sorts of conduct are often held to be unethical:

Theft & Fraud by Public Officials

Governments in Canada manage billions of dollars in public money annually and own billions more in physical property and assets. This includes everything from land and buildings, to vehicles and aircraft, to office equipment and furniture. One of the more serious ethical issues in government is theft of public property by public officials. Such theft can range from the trivial, such as taking home office supplies, to the graver, such as stealing millions of dollars from the public purse.

Fraud is one of the most common, and costly, forms of theft by public officials. Often referred to as theft by deception or trickery, fraud occurs when an individual deliberately deceives others in order to unjustly gain money, property, or services. There are many different ways in which public officials attempt to defraud government and taxpayers. They may, for example, submit false expense reports for costs they did not incur, or provide inflated work invoices for services they did not render. In the most extreme situations, public officials may participate in elaborate schemes of deception to divert large amounts of public funds from government programs and services into their own pockets.

Improper Use of Government Property

Theft and fraud, however, are not the only ethical concerns regarding government property. Another important issue is the use of public property by public officials for private benefit. This would include, for example, using one’s office telephone for personal long-distance calls, or using government vehicles for personal transportation. Such abuses of government property are not exactly theft. The public official is not actually stealing the office telephone or the government vehicle. Instead, the issue concerns the purpose for which the government property is being used. There is an expectation that equipment and transportation will be used only for activities associated with the performance of public duties, and not for purely personal reasons or for private benefit.

Bribery & Influence Peddling

Another important issue in government ethics centres on public officials and acts of bribery. Bribery occurs when a person of authority is offered, and accepts, some personal benefit in exchange for performing some action. A public official may, for example, be offered money, property, or free services. In exchange, s/he agrees to take some action that benefits the giver of the bribe, such as voting a certain way on a piece of legislation, or turning a blind eye to some illegal activity.

Influence peddling is a particular form of bribery in which a public official actively sells his/her ability to influence government decision-making. Regular forms of bribery involve a private individual or group approaching a public official and attempting to buy interests. In the case of influence peddling, however, it is the official him/herself approaching others in an attempt to sell access to government, services or otherwise.

Bribery and influence peddling can be very detrimental to public perceptions of government, as well as effective public administration. In a democracy, we tend to view our bureaucrats and elected officials as being responsible to, and servants of, the general public. Accordingly, there is an expectation that these public officials will act impartially and objectively in the performance of their official duties, with the goal of achieving the public’s best interests. When a public official acts on a bribe, however, s/he is no longer acting in the public’s best interest, but rather in the interests of the particular person or group paying the bribe.

Conflict of Interest & Self-dealing

Another common issue in government ethics is conflict of interest. This occurs when a public official’s private interests are such that they may influence the performance of his or her public duties. The concern here is often the same as with bribery and influence peddling. Public servants and elected officials are expected to exercise impartiality and objectivity when performing their official duties, and should act in the public’s best interests. When there is conflict of interest, however, there is a concern that the public official may favour some interest other than the general public.

Conflict of interest arises in many different situations. Self-dealing is one of the most obvious ones. This occurs when an individual’s activities in his/her official capacity involve dealing with him/herself in a private capacity, often for personal benefit. A classic example is a public official using his/her office to hire their own private company to work for the government. The concern is that the public official may choose his/her own company instead of other, better options available, simply because they desire the profits from the government contract. Moreover, s/he may be very lax in ensuring the public gets full value for its money. Concerns over conflict of interest can also arise when public officials deal with persons with whom they have close relations, such as family members, close friends, and business partners. The concern here is that the public official will place the interests of this particular individual above the greater interests of the public.

Many countries have implemented conflict of interest rules. Public officials may be required, for example, to divest their business interests prior to taking office. This may involve selling the interest, or placing it temporarily under the control of someone else (for example, placing it in a trust). Officials may also be required to take certain precautions when dealing with situations that potentially involve conflict of interest. They may, for example, be required to excuse themselves from certain government decisions where they have a private interest at stake, or, at the minimum, disclose the nature of their interest publicly.

Divulging Confidential Information

Public servants and elected officials are often privy to all sorts of sensitive information, such as military/security secrets or personal information about citizens (criminal records, tax information, medical histories). An important area of government ethics is concerned with the conduct of public officials in regard to this sensitive information. Generally speaking, there is often an expectation that public officials will keep this information confidential and will not inappropriately divulge what they know.

Confidentiality can be important for different reasons, depending on the situation. In the case of military secrets, confidentiality is often viewed as essential to the physical security of the nation and its people. Divulging such secrets (commonly referred to as “treason”) are considered so unethical that it is punishable by long prison terms or even execution in some countries. In the case of personal information, confidentiality is important to personal privacy and dignity. In many countries individuals have the right to keep personal information private; government officials are obliged to respect that privacy.

Improper Conduct Post-Employment

To this point, much of the discussion has focused on unethical activities by public officials while in office. Another developing area in the study of government ethics, however, focuses on the conduct of public officials as they make the transition from the public service to private employment. There are many potential issues here, ranging from conflict of interest, to improper use of confidential information, to bribery and influence peddling.

Prior to leaving office, for example, a public servant or elected official may grant favours to certain individuals or groups as a means of securing future employment. Again, the basic concern here is the impartiality of the public official in the performance of his/her public duties. The desire to secure future employment may lead the public official into a conflict of interest situation, or, in more serious cases, into situations of bribery or influence peddling.

Another concern is the activities of government officials once an individual is in the private sector. Former officials may take advantage of information s/he obtained in performing his/her public service duties, information that is unavailable to the general public. Such individuals may have confidential information about a future government policy; this information could offer the former public servant a distinct advantage in the marketplace with respect to investing, for example.

Former officials may also use their connections to gain preferential treatment or privileged access to government after leaving office. This is particularly worrisome if the former official joins a private lobby group and is able to use his/her connections to gain unfair advantages for others. Many countries, in fact, enforce a “cooling down” period in which former government officials are required to wait a period of time after leaving office before becoming a private lobbyist. This is not unlike the practice followed by individuals who have worked, in private enterprise, with a particular firm, and then left that firm to ‘set up shop,’ either with another company or independently. Often there is a moratorium on working with particular clients, or with a given industry.

Immoral Conduct by Public Officials

One of the more controversial areas of government ethics is the personal moral conduct of public officials. This would cover issues such as sexual harassment, discrimination, drug abuse, and extra-marital affairs. The underlying concern here is whether the public servant or elected official is a person of good moral character and worthy to hold public office.

Many countries prohibit some forms of immoral conduct, especially those directly linked to the performance of one’s public duties. For example, public officials are often expected to treat co-workers and subordinates with a certain level of respect, and are prohibited from engaging in certain activities such as sexual harassment or discrimination on the basis of gender, race, religion, or sexuality. Public officials are also often expected to be honest in relations with superiors and the public in general. Lying by a public servant can often be grounds for dismissal. 

Regulation of other forms of immoral conduct, in particular those that do not have a direct link to one’s official duties, is a much more controversial topic. In many countries, public officials are expected to adhere to high moral codes in all aspects of their lives. Even in Western democracies, voters often hold elected politicians to high moral standards. Some may argue, for example, that persons whom engage in extra-marital affairs in their private lives or who have had past drug abuse problems have poor moral character, and cannot be trusted as public officials. On the other hand, it could be argued that judgement of public officials should be limited to their professional qualifications and work, not their private lives. This view would hold that public officials have a right to a certain level of privacy in their personal lives, and should be allowed to withhold some aspects of life from the public record.

Regulating Ethical Conduct: Issues & Debates

What to keep in mind when examining ethical codes in government

When examining government codes of ethics it is important to consider key issues, such as which ethical rules are being included or excluded, specifically how those rules are being set out, and what procedures and mechanisms are in place to ensure adequate accountability and transparency. The following section provides an introduction to these important issues and debates.

Establishing a Code of Ethics

In establishing a Code of Ethics to regulate the ethical conduct of public officials, the particular rules and guidelines to be recognized are of prime importance. Most agree that a government Code of Ethics should include prohibitions against severe and clear cases of unethical conduct, such as theft, fraud, treason, bribery, self-dealing, and so forth. However, there is often debate on what else should be included.

Some argue, for example, that ethical guidelines for public officials should go much further, prohibiting certain activities even when no actual unethical behaviour has occurred. One example of this would be a complete prohibition on public officials receiving gifts from private individuals, no matter the value of the gift, and regardless of whether or not it involves an actual case of bribery, influence peddling, or conflict of interest. One might support this broader ethical code of conduct on the grounds that permitting any sort of gift receiving, no matter how trivial or benign, encourages more serious unethical conduct. One might also argue that such ethical rules are important in maintaining a positive image of government amongst citizens. The idea here is that a perception by the public that government is corrupt or unethical is just as harmful to society as actual instances of corruption.

Another controversial issue is whether or not government codes of ethics should include rules of good moral character for public servants and elected officials. This would include, for example, being an upstanding citizen in one’s community and not engaging in morally frowned upon activities, such as drug use, frequenting establishments of disrepute, or engaging in certain sexual conduct. For some, government codes of ethics should only require public officials to be “good employees”; in this view, such codes should only regulate the work-related activities of said officials. For others, a Code of Ethics should demand public servants and elected officials to be “good persons,” and, as an extension, should outline rules governing how these officials conduct themselves both at and outside the workplace.

Setting Out a Code of Conduct

A second issue focuses on how a Code of Ethics for public officials should be set out. There are several different options available: 

• Criminal Law: One means of setting out ethical rules for public officials is through criminal law (for example, through the Criminal Code of Canada). Under such an approach a violation of an ethical rule is considered a criminal offence, one that would be punishable by severe sanctions and penalties, such as imprisonment.
• Formal Ethics Legislation: Ethical rules for public officials may also be enshrined in formal pieces of legislation passed by the government. Ethics legislation of this sort will often be very encompassing, outlining different ethical offences, mechanisms for investigating and prosecuting unethical conduct, and various penalties for violating an ethical rule.
• Informal Ethics Guidelines: Finally, ethical codes of conducts may be drawn up as informal guidelines. These rules are not formal laws (unlike the previous approaches outlined), but are simply internal policy developed by the government to guide public officials in their conduct.

In many cases, a government will use several of these means in setting out ethical rules for public officials. Governments will often look to criminalize more serious ethical offences, such as theft, fraud, bribery or treason, and will prohibit them under criminal law. Other less severe conduct, such as conflict of interest or improper use of government property, might be regulated through formal ethics legislation or an informal ethics guideline. A government may also use a variety of different pieces of legislation and guidelines for different groups of public officials. Elected politicians, for example, may have different ethics legislation governing their conduct than public servants and bureaucrats.

Which means to use will often depend on the objectives of the government of the day. If there is a desire to have a large amount of control over ethics investigations, in particular, investigations of its own people, then a particular government may prefer to have more informal ethics guidelines. As these guidelines are not formal laws, but simply internal policy, they have the advantage of being easily changed or disregarded whenever the government feels it is necessary to do so. If, however, a government desires to have a regularized and more permanent set of ethical rules, it may prefer to rely more on criminal legislation or a formal code of ethics set out in detail in legislation that is passed by the elected officials of a given legislature.

Accountability & Ethics Commissions

Today, another common issue in government ethics is accountability. What does this term mean? It is useful here to think about a Code of Ethics as a rulebook that outlines what is expected of public officials. It, in essence, sets out the rules of the game. Accountability, on the other hand, refers to what happens when the rules of the game are broken. It involves “holding the person/s accountable” when they engage in unethical behaviour.

Accountability, then, includes a number of important topics. For example, how are allegations of unethical conduct made and investigated, and who has the responsibility to undertake such investigations? Should a separate ethics agency be created, or should the police handle it? Who should prosecute and adjudicate ethics cases? Should it be an ethics commissioner, the government, or the courts? Finally, what should the punishment(s) be for violating ethical rules? Should there be fines, jail time, or other forms of disciplinary action?

One of the most important issues regarding accountability is the structure of the agency that is responsible for overseeing government ethics. Many governments, including the Canadian federal government, have established an ethics office or commission, usually headed by an ethics commissioner. What should be the mandate of such a commission? Some argue that an ethics commission should have the responsibility for investigating and reviewing the actions of public officials and, as such, should be granted extensive investigative and prosecutorial powers. This would include, for example, the power to demand testimony and documents from public officials, as well as to charge whoever is believed to have violated an ethical rule. Also important to such a mandate is ensuring that an ethics commission has real independence from government to investigate and prosecute ethical offences, particularly when it is investigating government officials and employees.

Others, however, counter that a more advisory role for an ethics commission is all that is required. This view holds that the only function of such a commission would be to give advice to the government on how to handle ethical issues, and to counsel individual public officials when they find themselves in an ethical dilemma. This view also asserts that traditional institutions, such as public inquiries, the police, and the courts, should be relied upon to investigate and prosecute unethical conduct. Accordingly, there would be no need to grant strong investigative or prosecutorial powers to an ethics commission, or even to ensure that it has much independence from government.

Transparency, Disclosure & Public Awareness

Another issue is transparency. If ethical codes of conduct are the rules of the game, and accountability is what happens when those rules are broken, transparency is being able to know when and where abuses of the rules are taking place. If there are procedures and mechanisms in place to alert us when an ethical rule is violated, then we say there exists a high level of transparency. If, however, public officials are able to hide or keep secret their behavior(s), then there is little or no transparency. This is very important to the effectiveness of any ethical code of conduct. If the rules are to be enforced, and persons are to be held accountable, then we must know when abuses of the rules are taking place.

There are many different ways to encourage transparency. One possibility is the creation of some ethics oversight body that regularly reviews actions taken by public officials. Such a body may be a formal ethics agency or commission, or a series of legislative committees headed by elected politicians. Disclosure requirements for public officials are another means of providing transparency. This would include, for example, requiring public servants and elected politicians to publicly disclose financial assets and other relevant information prior to entering office. Public officials may also be required to disclose any possible conflict of interest situations during the course of carrying out their official duties.

Whistle blower legislation is also often considered an important means of ensuring transparency. In some cases public officials become aware of the unethical conduct of other public officials, but, because of fear, they do not come forward to report such incidents. Many fear reprisals such as losing their jobs or being ostracized from their respective professional communities. Many countries have passed whistle blower legislation to protect these public officials and make it easier for them to come forward with allegations of unethical conduct.

Public awareness and attention can also be important with respect to fostering greater transparency. The public needs to be able to find out when unethical conduct has occurred; it also needs to know what is being done to hold public officials accountable for such behaviour. Several means are available to promote such public awareness. The government can be required to make relevant information widely available to the public, such as the financial assets of public officials and the findings of government reviews and investigations. Further, the government can allow the media and the public access to government documents, for example, through freedom of information legislation. Indeed, public access to government documents has often proved to be an important means for bringing to light unethical conduct in the first place, as the media or concerned members of the public often engage in their own investigations of public officials.

The issue of ethics and integrity in public service is crucial to addressing corruption. Whatever well-meaning may be reforms in other sectors, these cannot bear fruits nor can any of those be sustained without establishing that appointments, promotions, postings and transfers in public service are based on performance and merit and not on political influence, bribery and other means of subjective influence. So long as discretion is wide and the scope remains for abuse of power with impunity, and as long as effective legal and ethical standards are not in place with enforcement mechanisms for zero tolerance to corruption, no true results can be expected or sustained in enhancing ethical and moral standards. No less important is the issue of salaries and benefits, which must be viewed as investments for future. Much would definitely depend on the extent to which anti-corruption values and ethics can be mainstreamed in the public service. A key role would be played by preventive measures against erosion of public service integrity and honesty by enforcing public service code of ethics including positive and negative incentives.

Reference:

1. http://mapleleafweb.com/features/ethics-government-concepts-issues-debates, 8.8.2016, 3.30 PM.
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