George Amick’s NJ.com article of February 11, 2013, captioned “No help from state for ethics oversight” concludes that Hamilton Mayor Kelly Yaede’s heart was in the right place in trying to obtain state assistance in overseeing the city’s ethics program. I agree that having an “independent” ethics oversight function is important, with the emphasis on “independent.” However the overall state of government ethics programs, to the extent they aspire to foster an ethical culture, is significantly wanting. Let me explain and propose a solution.
Government ethics programs are centered around a body of rules geared to prevent conflicts arising from personal financial interests and official duties. Indeed the mantra of the United States Office of Government Ethics is: Preventing Conflicts of Interest in the Executive Branch. Employees are encouraged to comply with the various ethics requirements mostly through the threat of administrative sanctions. Official oversight bodies, public interest groups and the news media also play a vital role in this process.
Survey after survey and headline after headline leaves us with the conclusion that , while all this is impressive, it is not enough. Similarly, more needs to be done to affect ethical behavior beyond the traditional solutions of closing loopholes, increasing oversight, prosecution, investigation and training.
A new, over arching, approach is recommended by the Rutgers Center for Government Compliance and Ethics that government agencies adopt the compliance program methodology set out in the Federal Sentencing Guidelines for Organizations (FSGO).1 This is not offered as a substitute for the other approaches that individual circumstances may require, but in addition to that effort.
The notion of adding a management program to assure institutional compliance with all laws, (not just codes of ethics) to an existing government ethics effort, with the idea of positively affecting organizational ethical culture is premised on two intersecting concepts:
1.) The measure of an ethical culture is the extent to which an organization makes doing the “right thing” a priority. A “right thing” to do (and a baseline expectation of the public it serves) for all government organizations is to uphold the law. Therefore: An integral part of any government ethics program is the extent to which it takes measures to comply with the law.
2.) We judge and are influenced by people and organizations they run more by their example and practice than their words.
The FSGO provides a framework for management leadership that puts the words of doing the right thing – including comply with the law - into visible action.
A properly implemented FSGO compliance program will affect organizational ethical culture by requiring participation of agency employees at all levels, with members of the senior staff leading the effort. Employees will see an organization, albeit small, headed by an executive level compliance officer with direct access to the highest levels officials within an organization. Active participation in the program will be an element in the process of appraising employee performance. There will be communications and training of all employees regarding their roles and responsibilities including their ability / obligation to raise compliance concerns and be protected in doing so through a meaningful non-retaliation policy. Most importantly, there will be structured efforts on the part of people with mission responsibilities to identify compliance weaknesses and to fix them. All these activities will take place under the umbrella of the “Compliance and Ethics Program” and clearly demonstrate that compliance with the law is an element of doing the right thing, is a priority in the organization and that employees should engage in business conduct that is reflective overall agency commitment to ethical behavior.
While this effort has become an integral part of many corporation’s governance structure, with few exceptions, it has been ignored by government organizations. The Federal Bureau of Investigation is a primary exception, having established such a program in 2007. Beyond its impact on ethical culture, cost savings from increased effectiveness and efficiency, and increased trust in governmental organizations should be realized.
Affecting the culture of any organization will take time and may take several different approaches over time. Implementing a compliance program seems to be a “low hanging fruit” solution that will have an immediate impact on the individual behaviors by leading through organizational example. For more on this issue see the Rutgers Center for Government Compliance and Ethics.
By Emil Moschella,
Rutgers Center for Government Compliance and Ethics