ETHICS

The study of ethics is a difficult topic for many people. This page is designed to cut out a great deal of that difficulty and provide some intellectual food for thought. After the links below, a paper prepared for the Alaska Municipal League by J. Donahue is attached. That paper provides a quick look at some considerations regarding ethics, particularly in Alaska Municipalities. If you have any feedback on that or this page, please e-mail me at jdonahue@alaska.net. Thank you for reading this page.

If you are interested in the State of Alaska's Select Committee on Legislative Ethics, this URL Ethics Committee will take you to their website. Joe Donahue is a public member of that Committee (and past Chair) and has been for four years. If you have comments on the Committee's work, please e-mail Mr. Donahue above.

Other interesting links on ethics from Joe's personal bookmark page follow:

Ethics Updates This is Lawrence M. Hinman's site of ethics updates for all instructors and students of ethics.

Ethics Committee. As mentioned above, this is the State of Alaska's Legislative Ethics Committee's site, with information on that law and its implementation.

CAERNETS This is the Canadian Applied Ethics Research Nets homepage. It is a fascinating infrastructure for applied ethics research and its dissemination funded by the Canadian Social Sciences and Humanities Research Council (SSHRC), through the Centre for Applied Ethics.

The Classics This is a subsite from the Ethics Updates site above, with direct on-line access to the classics and reference books for ethics research.

On-line JournalThis is the home page for the On-Line Journal of Ethics published by the Institute for Business and Professional Ethics.

Codes of Ethics This site, Professional Ethics Resources on the World Wide Web, maintained by the Centre for Applied Ethics, contains most of the professional Codes of Ethics and much more.

COGEL This is the home page for the Counsel on Governmental Ethics Laws (COGEL) which has a journal from which some citations are made in Mr. Donahue's article below.

Below, is Joe Donahue's paper that was presented to the 1995 Alaska Municipal League

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ETHICS

FOR

ALASKAN COMMUNITIES

A PRESENTATION BY:

JD'S PROFESSIONAL ASSISTANCE

P.O. Box 1736

Kenai, Alaska 99611

Phone 907-283-8051

Fax 907-283-7750

For The

ALASKA MUNICIPAL LEAGUE'S

1995 LOCAL GOVERNMENT CONFERENCE



INTRODUCTION

This paper is a discussion of some of the issues and concerns local community governments face in trying to be "ethical." As with individuals, communities vary in what the citizens feel is ethical behavior or conduct. As a result, many communities have written different Ethics Codes. Some communities have no laws or rules dealing directly with ethics, but nearly all have some form of conflict of interest rule. It is the author's firm belief that each community should have written rules on ethics, spend time and effort on ethics training, and enforce the rules.

If your community has a sophisticated Ethics Law, which has been tested under fire and you have many court decisions regarding ethics, you may find this information redundant. However, in most instances even the most experienced finds a new way to look at ethics occasionally. This paper will also be discussing briefly the concept and implementation of Open Meetings or sunshine laws and the affect on the governing body of a municipality.

The goal of this paper is to provide some information on ethics and the laws intended to implement ethical behavior by elected officials. If discussion is stimulated and questions asked as a result of the paper, I will have succeeded. The first and most important effort in improving ethical standards, behavior, or laws is open, thorough discussion and discourse. Ethics has finally come out of the closet, and it is OK to talk about it. You will no longer be a wimp, a nerd, or be accused of being naive or a poor politician, if you openly discuss ethics. In fact, you can now get political points for talking a good ethics game. Soon, you may only get points for actually living up to the talk.

As efforts are made to open the discussion and actions on ethics amongst elected officials, public employees, and governments; there will be some disagreements, and eventually court cases and settlements. Each new law, decision or interpretation will make the issues more complex, and require additional learning, new laws, and more effort. While that is going on, a basic foundation in the principles of ethics is necessary for elected officials, if they are to stay grounded in reality, and satisfy the public expectations. The public fully expects elected officials to have exemplary behavior, conduct, morality, and to avoid even the appearance of a conflict of interest. Satisfying that public expectation is a never ending struggle if you wish to continue to serve.

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ETHICS DEFINED

Ethics should be easy to define, since it is a topic that is more and more on the lips and minds of people. The word "ethics" is derived from a Greek word meaning "customs," and encompasses society's mores and morals, customs and traditions. Since the beginning of recorded history, organized societies have established some rules of conduct, or ethical standards--And since then, there has always been ethical problems. These come from accepting bribes, misusing public funds, putting private gain above the public good, etc. In defining ethics, these natural conflicts between the common good, and the individual human behavior, often arise. Webster's defines ethics as:

Black's Law Dictionary states:

Of or relating to moral action, conduct, motive or character; as, ethical emotion; also, treating of moral feelings, duties or conduct; containing precepts of morality; moral. Professionally right or befitting; conforming to professional standards of conduct.

Since morality and morals are referred to in definitions of ethics, a definition of morals is needed:

Relating to, dealing with, or capable of making the distinction between, right and wrong in conduct. Relating to, serving to teach, or in accordance with the principles of right and wrong. Good or right in conduct or character. A matter of conscience versus positive law.

Ethics seems to be the "right" or "correct" individual behavior or conduct in some unit of society. Fundamental principles of ethics are necessary for a society or unit of society to function. As Carol J. Whitcraft, a member of Counsel on Governmental Ethics Laws ( COGEL ) writes: "There are no ethical or unethical hermits. Ethics occur only in human relationships." However, she goes on to discuss the fact that hermits, as humans, may well have a self sense of morality and be either moral or immoral.

Others argue that the separation of morality from ethics is misleading, and should not take place. Louis C. Gawthrop writing in an article entitled "The Moral Dimension" for the COGEL journal, states that "the notion that public ethics should be applied with amoral detachment would, perhaps, leave all of the founding fathers aghast." He provides historical perspective dealing mostly with the first amendment separation of Church and State and the change in interpretation over the 200 plus years since the Constitution was adopted.

Honesty, integrity, right, wrong, objectivity, neutrality, respect, courtesy, conduct, impartiality, quality, fairness, equality, values, morals,--the list is without end. Suddenly, this issue is getting more difficult, and sometimes we may not like what we see, hear, or think about ethics. Who decides what is right or wrong??? Is it the same as good and bad? When, and for whom, does the right and wrong get decided? Can you legislate morality?

Almost all writers come to one conclusion: ethics is a matter of doing the "right" thing. As Mark Twain once said: "Always do right. This will gratify some people and astonish the rest." What Mark Twain did not say, and we are still grappling with, is what is right and who's definition shall we use. This leads to the differences between personal and organizational ethics. If we accept that ethics is doing what is right, then we only need define what is right.

Much of the definition of ethics boils down to personal integrity and honesty. The National Institute of Law Enforcement and Criminal Justice published the following statement in 1978:

Corruption has three main components that are controllable and one that is not. The three controllable ones are opportunity, incentive and risk; the uncontrollable one is personal honesty. Many public servants over a long period of time have had the opportunity to be corrupt, a large incentive to do so, and little risk of being found out but have refused because 'it wouldn't be honest.'

This individual, personal honesty or ethical code of behavior is key to successfully having ethics in government. Electing honest people, rewarding honesty, promoting honesty, recognizing honesty, and penalizing and publicly ridiculing dishonesty and unethical behavior may be a slow way to turn the ship of governmental ethics, but it does work. Each of us represents a small step or segment needed to re-establish and reinforce ethics in government by our own actions and our examples. We need to do what is honest and right!

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PERSONAL AND ORGANIZATIONAL ETHICS

The decision on what is ethically right or wrong is partly a personal decision, and partly a result of an organization's code of ethics. Most of the time, the personal decision and the organization's decision will be the same, since our society is grounded on some standard principles of human behavior. In professional societies or institutions this is easier, and that code has to do with the right way to do the job or profession. Most of the time, the personal, individual idea of what is "right" due to education and training, is the same as the organization's.

In government organizations, there is sometimes a divergence between individual codes of conduct, and those of the organizations. The decision on what is ethically right or wrong is much more difficult in situations where a lack of clarity or outright differences in personal and organizational ethics exists. This is the reason there are usually laws or codes passed, and enforcement organizations provided for by municipalities, states and other units of government.

Each person in this room has a personal code of ethics. It may not be formulated, and you may not even be aware of it. It does not matter whether or not you were raised on the street as a gang member, or in a parochial school as a choir member, each of you have a sense of ethics. Unfortunately, (or, if you value diversity, fortunately), all of us do not have the same personal code of ethics. Your personal code of ethics is composed of the following: 1.) Your upbringing and family values; 2.) Your life experiences; 3.) The rules and influence of the society and community in which you live.

There is no simple, universal formula for solving ethical problems. We have to choose from our own codes of conduct whichever rules are appropriate to the case in hand; the outcome of those choices make us who we are. --Sir Adrian Cadbury

It is politically incorrect or at least dangerous now-a-days to discuss specific values, (however popular it is to state a firm believe in basic values, and family values and the need to teach them--without defining exactly what is meant), yet personal ethics is determined by your own set of values. In Ethics and Leadership, William D. Hitt defines values as:

First, values are beliefs, not facts. Second, values are enduring, they are not transient (but that does not mean they are fixed). Third, values provide guidance with respect to two aspects of our lives, our mode of conduct (personal behavior) and our desired end-state of existence (personal goals).

This does not mean that values are necessarily politically expedient, nor politically neutral; but it places the values in the role of defining a balance between personal behavior and personal goals. For example, our goal may be to eliminate the competition in a business deal, but most of our personal value systems would not allow committing murder to accomplish that particular goal. Likewise, theft of proprietary information would also not be acceptable to most of our personal values even if getting it would satisfy a goal. In some instances, the legal deterrent of a law, and its penalties helps to draw the line, where personal values might fail some of us.

A society, government or other organization has certain rules and goals which may not emphasize or have the same values as an individual. If our values are significantly different than the organization, we usually, try to find other employment or location to live. Otherwise, we use our personal values and ethics to interpret areas that are not defined by the written code or law of our unit of society. This latter aspect is of utmost importance in serving in a governmental role or as an elected official. As you make decisions as a public servant, you will experience conflict between your personal ethics and the organization's ethics. You will have to make choices.

When ethical questions arise because the organization's behavior does not square with an individual elected official or employee's personal code of ethics, a choice or compromise is necessary. The individual must find a way to reconcile this conflict, rather than violate their own ethics; or, violate their organization's ethics or interests (with all the attendant risks to job, power, votes, and livelihood). Sometimes these choices are severe, as they must have been for some in the German hierarchy during Hitler's reign.

It is easier to maintain the "moral" or ethical high ground if we do not need the job or income. It is more difficult when we truly must have the employment to feed our family. Sometimes, there is not a clear case of divergence of values or interests, rather an area which is unclear or that is not adequately covered in what is written. In these instances, the individual employee must have somewhere to turn. Ethics laws provide refuge or guidance, as do neutral bodies set up to implement such laws.

A similar situation may occur between an employee and supervisor, even if there is no perceived difference in values between the individual and the organization. The boss and the individual may have diametrically opposite (or nearly so) personal values. Both may be governed by the same organizational rules, laws or guidance on ethics matters, but in reconciling with their personal codes reach opposite behaviors. An employee in this situation needs an objective way to reach the organization. This example, and the one above, are the main reasons organizations provide ethics training, and provide for some review body to help answer questions.

The tension between the individual's expectation, behavior, and ethical values and those of the organization provides a natural area for controversy or public perceptions to run rampant. When an employee, the organization, or someone else leaks information on such ethical conflicts to the media, a version will be sent to the public. Unfortunately, that version may or may not contain all of the facts, and the choices. However, this public airing is often the only opportunity for the citizen to determine if their own ethical values are being met. Ethics is usually undefined where conflicting values meet, thus creating areas that need interpretation.

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ETHICAL DECISION MAKING

Performing ethically in a government role requires a personal system of ethical decision making (regardless of the ethics laws that may or may not be in place). Even with clear personal values and ethics, and written ethics codes, there will still be some decision making necessary. According to Michael Josephson, writing in the COGEL journal, making ethical decisions is more difficult than we think. Placing public interest above personal interest is at the heart of ethical decision making, but it is not always that simple. James Rest in his book, Moral Development, lists in sequential order four requirements for ethical decision making:

1.) You must be able to make some sort of interpretation of the particular situation in terms of what actions are possible. (What are the options?)

2.) You must be able to make a judgment about which course of action is ethically right. (What is the ethical dimensions associated with this?)

3.) You must give priority to ethical values above other personal values such that a decision is made to intend to do what is ethically right. (Which option would I choose, given my values?)

4.) You must have sufficient perseverance, ego, strength and implementation skills to be able to follow through on your intention. (What obstacles can I expect to encounter?)

These four requirements or questions are very helpful when faced with the governing or political decisions you must make everyday. There is an aspect of ethics in nearly every decision and everything you do as a public servant. Because of this, you need to develop your own decision making system to ensure that your decisions are "right" and will withstand the scrutiny of the ethics police amongst the citizenry.

To fully accomplish ethical decision making, you must have a base level of knowledge of yourself and your values or personal code of ethics. Only you can truthfully determine that basic value system, and you should not rationalize nor waiver from your own beliefs. All decisions should be weighed against your personal ethics standards, regardless of the ethics codes governing your unit of society. If your ethics are more restrictive, then you must be true to them. If your own ethics are not as stringent as the law, then you must go with the law that society developed (or attempt in the legislative process to modify the law, if your constituents are in agreement with your interpretations).

Two other elements enter into the public decision making and ethics. One is openness of the process of decision making, and this will be discussed in more detail under the heading Open Meetings later in this paper. The second element is public perception, which sometimes is based on the first element of openness. Remember, if the public believes you are hiding something, they will assume unethical behavior on your part. Likewise, if what is done or decided appears to be inappropriate, or "not right," no amount of clarification will change that appearance.

The public holds elected officials to a higher standard of integrity than the law requires. The concept, of judging by appearance of impropriety carrying the same weight as the actual act of impropriety, is relatively new in discussions of ethics. Some of it is an aftermath in the post Watergate era, and the media's interest and ability to ferret out facts, and make insinuations as news. As a result, ethical decisions and behavior must not only be in compliance with the law and above reproach, but must be beyond even the appearance of ethical violations.

This is extremely important, just to remain effective as a public official, to have credibility, and ultimately electability. So, even for selfish reasons, as well as the public good, situations and decisions that appear unethical should be avoided like the plague. However, you cannot allow fear of repercussions and judgment to prevent you from decision making and action, because your constituency has a right to expect performance from you in representing them in the representative form of government we hold dear. The only course open to you is to have high ethical standards and a personal system which ensures that those standards are maintained.

It is easier to make good ethical decisions if that is the expectation of you in your job. Ethics laws and guidelines help in this endeavor. Having simple and enforceable ethics standards and processes also is necessary if there is going to be a consistency in ethical decision making. Most particularly, training on the ethics laws and ramification, coupled with decision making, problem solving and option analysis, can better prepare officials to make ethical decisions.

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ETHICAL PRINCIPLES

There are some ethical principles common to most of mankind which have come down through the ages in order for us to have survived and not destroyed each other. Carol Whitcraft in her COGEL article previously referenced, writes about the possibility of the human being, through evolution, becoming ethical or altruistic in order to survive. She summarizes this thought with:

The resulting genetic predisposition of humans to make altruistic decisions is a resource that can be important in moderating our national addiction to greed and self-gratification through education and leadership.

If we assume that, although flawed, the human being is basically good; then, ethics is simply the art of reducing that basic "goodness" to written concise rules, and there will be no problems. If, on the other hand, we assume the human being is flawed, as is the biblically-based belief of many, then the human failing of greed, corruption, lust, etc., will always be interfering with a perfect ethical world. These two philosophies of humankind are part of the problem of defining ethics, ethical principles, or ethics laws.

While it is not possible to have it both ways in all things, it is possible to achieve consensus on ethics standards, principles, and laws. It has been so for a long time, whether or not it is due to an evolutionary propensity or acquisition, the basic goodness of human beings, or a necessary expedient for survival, some common principles have descended through the times. Immanual Kant stated one of these principles: "Act as if the principles underlying your actions were to become a general law for all of humankind." The Bible states another principle in "Do unto others as you would have them do unto you."

A principle of the common good over the individual benefit permeates all ethics laws. The broad public interest is not to be sacrificed, nor the public assets used in furthering private or personal gains. This is standard in nearly all ethics laws. Likewise, a method for review of alleged violations, some form of penalty and accountability, and education or training are all now common principles of ethics laws.

A common principle of ethics which is often overlooked is that of examples or role models. Clearly, in today's world, we could all use examples of ethical behavior. More important in the long term is the effect of good ethical behavior on the elected peer group of an elected official. Rather than the "we've always done it that way," or the "everybody does it" mentality, it can be popular (and very much electable) to promote ethics and actually live it.

We have as a society of late come a long way to where being ethical is no longer a thing for Mama's boys, wimps, and the like. Now, ethical heroes can be popular. In fact, if one looks at heros in old West movies, or on today's action movies, there are still some who are heros exactly because they are ethical. William D. Hitt, in Ethics and Leadership, discusses this concept when he states that "Leaders have considerable influence on the conduct of followers." Likewise, he states, "Ethics and leadership go hand in hand. An ethical environment is conducive to effective leadership and effective leadership is conducive to ethics."

Sometimes society changes its standards and individuals are caught short. We have seen examples of late in Senator Packwood's sexual advances. Society has gone from very puritanical ways in the early days of our country to the Tammany Hall days of Chicago. Then society changes back based on international events, and most recently the increase in media attention and capability. As Gary Hart found out, you cannot now challenge the media to find something or they will.

This speedy ability to research using computers, internet, and faxes and e-mail has changed the public's expectation of timing of information. If something is known by the politician, it is likely the public will know within 24 hours. The ability to orchestrate the media, or put the best light on situations does not exist as it once did. This is a very positive change in implementing ethical principles. This instantaneous availability of information is an opportunity to present ethical principles, reinforce ethical behavior, and eliminate unethical conduct that has never before existed to this magnitude.

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ETHICS PERCEPTIONS

This may seem an unusual topical heading in a paper such as this, but the public perception of ethical behavior of elected officials may be more important than the law itself. After all, the law only specifies the potential for various penalties, sanctions, or corrective actions. The public, through the power of the vote, carry the ultimate penalty for an elected official. Even if you comply with the municipal ethics code, or state Open Meetings Act, the voters may perceive that you violated the community's code of ethics. If they decide that, they will elect someone else.

It is unfortunate if the ethics laws do not adequately reflect the community's sense of ethics. As Edmund Beard & Stephen Horn wrote in "Congressional Ethics: The View from the House":

The least healthy situation in a democracy is one in which legislators and constituents not only have different perceptions of what constitutes ethical legislative behavior but are also unaware of their differences.

All too often on the national and sometimes state level, the public's perception may be so different than the legislators' that this situation exists. It may also happen to you at the municipal level. Do not be complacent on things ethical. Talk to your constituents and find out what they feel is "right." It is up to each elected official to become aware of differences and perceptions and do everything in his or her power to remedy the situation. Remember that the public often holds elected officials to a higher standard of integrity than the law requires.

In terms of perceptions, it is important to mention one more aspect of ethical perceptions. That is the perception that ethics can be used as a political weapon against people who we do not support in elected office. This is a caution discussed by Bruce Jennings in an article for the COGEL journal, entitled: "Ethical Politics vs. Political Ethics: Too Much of a Good Thing." He feels that partisan use of ethics disables moral judgment in public life, and that such judgment is a necessary internal gyroscope.

If the public is skeptical of government ethics, then observes ethics being used for partisan political purposes, the skepticism can only increase. Complaints filed during an election may or may not have validity, but the person filing a compliant can time that filing for political effect. The public official cannot, unless they wish investigations to go public, discuss a complaint under investigation. Thus, the media and public can well condemn an elected official and elect his or her opponent based on a complaint of an ethical violation. Later, it may be proven that there was no violation, but it may be too late for the elected official. Avoid this, by considering the public perception before you act.

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ETHICS LAWS

Ethics laws generally encompass the ethical standards and expectations of the public or the norm of that unit of the society. Since the laws are made by imperfect human beings, and those that change behavior are particularly hard to reach consensus on, the laws do not always mesh completely with the public expectation. It is for that reason, that there are usually neutral or objective processes or commissions set up for review of actions which appear to violate these laws.

A good set of ethics laws is simple and clear. Of course, that is easier said than done, when you try to legislate something based on values, morals, and beliefs. The more divergent the population represented and their elected representatives, the more difficult it is to develop consensus on ethics laws. While other laws are designed for the common good, they are based on legal principles and precedent, and are usually careful to separate out values, beliefs, or morals, to achieve objectivity and neutrality (although they may have some moral or societal custom as their underpinning).

Ethics laws attempt to codify morals, values, beliefs and judgment into standards of conduct for all people equally. In making that attempt, ethics laws take the moral or value standards (arrived at by consensus, voting, negotiation, or compromise) of the country, community, or organization (such as a municipality), and make them into law. Because individual values and morals vary a great deal, ethics laws do not perfectly fit any one individual's sense of what is "right."

Most of the time, ethics laws are relatively clear and easy to understand. A clear conflict of interest between an individual's own financial interests and the interests of the public is understood by most. The conflict between the will of the majority and the interests of the minority is also usually understood. The interest of the government (or community of people as a whole) versus the interests of an individual is also generally understood. This concept of altruism versus egoism is discussed by William D. Hall in Making the Right Decision, in his chapter on "Is Business Ethics Worthwhile?" Hall states that some trust and faith is required by the business in pursuing hardcore altruism versus reciprocal altruism.

The issue of the common benefit superseding the individual benefit is one of the cornerstones of ethical behavior in the public sector. Basically, the common good must be given preference over the benefit to the individual (as long as the individual's rights are protected), in an ethical decision. Most ethics laws are written this way, and emphasize the individual monetary benefit aspect. Nearly, everybody would agree that an elected official or a public service employee should not use their position for personal gain or to provide personal gain to another individual. However, everybody may not agree on what constitutes personal gain (e.g. $, sex, votes, land, intangibles, etc.), or the specific facts of the given situation.

If ethics laws are to be successful and enforceable, they must be written to reflect the expectations of the unit of society for which they are written. These laws should be as simple as possible, without sacrificing clarity. Specific standards or expectations should be enumerated in the law itself. Provision for education and training on the law should be built into the law, as should enforcement and penalties. A neutral body should be set up under a good ethics law to ensure impartiality in passing judgment on issues brought before it.

There must be a fair, uniform process for dealing with complaints as to ethics violations under the law. The privacy rights of individuals must be carefully weighed against the public's right and need to know in any ethics law. There must be an evaluation technique or method built into the law, and some flexibility and ability to modify as needed. Penalties need to be spelled out for certain behaviors, and prohibitions specified on certain actions. The law must provide the process and mechanism for adequate enforcement, if it is going to be effective.

There should be a method to ask for formal interpretations on close issues prior to commencing particular actions relating to issues which are covered under the ethics law. In some cases, as in the Legislative Ethics Law, AS 24.60, there is a formal process for the Ethics Committee to issue written decisions interpreting the law in a given fact situation (which must be provided in writing by the requestor). Also, an expedited informal opinion is also available from the Ethics office, but it does not bind the Committee in any complaints as to violations. The Executive and Judicial branches of state government also have separate codes of conduct.

Some employees or elected officials are proud to be independent Alaskans and do not want to "submit" to any set of standards (particularly someone else's or the government's). This attitude may be admirable in some situations, but is inappropriate in terms of ethical rules of conduct. Some will always test the laws or rules by "pushing the envelop" of behavior. Others will violate the norms of society without thinking about what they are doing. Still others may be enticed by riches, personal rewards, or assurances they will not be caught, and lacking strong personal ethics, may violate the society norm. Laws must therefore, make clear what is a violation, provide a process for reviewing potential violations, and provide an objective process of review that clearly recognizes due process and equal protection rights.

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ROLE OF COURTS

The court system is amoral! That does not mean that individual Judges, lawyers, juries or other purveyors of justice are individually or collectively amoral or immoral. Quite the contrary. However, the legal justice system in the United States, in order to ensure fairness, equality, uniformity, and objectivity, (all desirable, constitutionally protected concepts), has no moral or ethical values, feelings, or emotions. The law itself is a system of justice dependent on written words and precedent. Some will argue that the jury system can nullify the law (in honor of values, ethics, or for other reasons of justice).

This paper is not a legal treatise, and I am not qualified to write such, but the important thing to remember is that the courts are a very poor place to decide matters of ethics. It is better if people individually and collectively implement systems of ethics which set baseline legal parameters of behavior (which the courts can then enforce, and yes, even interpret). Society is the ultimate judge and jury of ethical conduct. The Ethics Codes provide a baseline against which behavior is to be measured, but regardless of the violation or penalty, the final word for elected officials is the ballot box.

Certainly, an elected official who is wrongfully accused, or who feels their reputation has been smeared may sue in court. However, the court cannot grant them back what voters have taken away. That is why the perception of ethical behavior is nearly as important as the actual behavior. Some discussion of court cases experienced by the municipalities might be in order.

In a Haines case, the school board held an executive session to consider retention of the Superintendent of schools. A citizen's group felt that was a violation of the open meetings law, and petitioned for a recall election. The issue ended in court over whether the grounds in the recall were sufficient. The Supreme Court finally ruled that there was no violation and the executive session was proper. However, it is important to note that the citizens voted, in two different recall elections, and most of the Board members are gone now. The citizenry expectation in Haines did not match the wording in the law.

In another case of the firing of a librarian in Anchorage, where the mayor relied on a recommendation from an advisory committee that met in a closed session, in violation of the Open Meetings Act, the courts decided the individual was entitled to reinstatement, but not back pay. This went all the way to the Alaska Supreme Court also. The court restated its three step analysis for determining an appropriate remedy for an action or decision made in violation of the Open Meetings Act.

The first requirement is that the governing body must show that a subsequent ratification of the decision involved a substantial reconsideration of the decision. If full and fair reconsideration did not take place, then it must be determined if reconsideration is possible without invalidating the earlier flawed decision. Then if reconsideration is not possible without invalidating the original decision, the court must determine whether invalidation is in the public interest. Needless to say these considerations and court actions do not come without a price tag.

While the court has dealt with many Open Meetings Act cases, it is much more uncommon to deal with a violation of an Ethics Code. This is because the Ethics Laws have a due process procedure built in, and there are specified penalties and authorities for discipline within the administrative structure. The Court is not likely to look beyond the legislature for judicial review of violations of the Ethics Code submitted to the legislature. Violations of the Administrative Ethics Code (Chapter 52. Alaska Executive Branch Ethics Act) are subject to judicial review, but it is not common except when due process, property rights or other Administrative Procedures Act violations are asserted.

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OPEN MEETINGS

Supreme Court Justice Louis D. Brandeis (1916-1939) once said that: "Sunlight is said to be the best disinfectant." Since ethical considerations, and the making of laws and governing are of concern to all citizens, it is important that the process for making decisions be open to public scrutiny. The Alaska legislature, as other legislatures have done, has reduced this concept to a code of law. The Open Meetings Act affecting governmental bodies is found at AS 44.62.310 and was most recently amended effective June 3, 1994.

The Alaska Open Meetings Act has been in place, in some form, for some time. It is consistent with the concept that the public's business is best conducted in public, and that it is unethical to do otherwise, that this and other such laws have been passed. Initially, prior to 1994, it was a violation of the Legislative Ethics Code for a legislator or group of legislators to violate the Open Meetings Act, now the legislature is bound by the principles of open meetings, and to violate those principles violates the Ethics Code.

Whether or not municipalities have formal Ethics Codes, the Open Meetings Act still applies to them. In 1994, some municipalities lobbied hard to obtain some clarity and lessening of requirements under the Act, and there were changes made. However, it is still a tough law, and Seward, Haines, Anchorage, and many other municipalities can vouch for the difficulties encountered when the perception of a violation occurs.

The law is simple in its intent: To make all meetings of a public entity open to the public with very limited exceptions. The Act requires advance notice of meetings and the subjects to be discussed. It provides for exceptions and exemptions, but very limitedly. It defines how many people can meet, and what can be discussed if the meeting did not provide public notice.

The law allows only limited exceptions for executive sessions: 1.) matters, the immediate knowledge of which would clearly have an adverse effect upon the finance of the public entity; 2.) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; 3.) matters which by law, municipal charter, or ordinance are required to be confidential; and 4.) matters involving consideration of government records that by law are not subject to public disclosure.

The Open Meetings Act does exempt a governmental body performing a judicial or quasi-judicial function when holding a meeting solely to make a decision in an adjudicatory proceeding. It also exempts: juries; parole or pardon boards; meetings of a hospital medical staff; meetings of a governmental body or any committee of a hospital when meeting solely to act upon matters of professional qualifications, privileges or discipline; staff meetings or other employee gatherings; meetings for participating or attending national, state, or regional organizational meetings of which the government body is a member. (However, see AS 44.62.312 for statement on narrowly construing these exemptions).

The Open Meetings Act provides that a decision made in violation of the Act can be reversed or voided. It provides nine criteria that the court should review in making the determination of whether or not it is in the public interest to do so. Another meeting with proper notice that actually reconsiders the decision that was in violation, if the reconsideration is substantial, may be a good enough remedy for some violations.

The Act also provides that advisory committees are exempt if they only have authority to advise or make recommendations and no authority to establish policies or make decisions for the public entity. The Act defines governmental body (as assemblies, councils, and the like) that have the power to make decisions on behalf of a public entity. The Act prohibits more than 3 members or a majority (whichever is smaller) of a governmental body from meeting for the purpose of considering collectively a matter upon which the governmental body is empowered to act, unless such meeting has been duly called and noticed, and is open to the public.

There are numerous court decisions on the earlier Open Meetings Acts prior to the 1994 amendments. Some of these may no longer have legal precedence due to the changes made. Since each fact situation is important to determinations of violation, it is best to obtain an annotated copy of the Alaska Statutes at AS 44.62.310 to read the notes on litigation. Then it is important to actually read those cases for light on the court's interpretations. Two cases are discussed very briefly in the Role of Courts section immediately preceding this section.

The courts have exempted the day to day conduct of the state's business and meetings necessary for that conduct. The courts have recognized the attorney client privilege as operating concurrently with the Open Meetings Act. As pointed out in the discussion above under the Role of Courts, the courts have also defined the analysis necessary when voiding decisions that were made in violation of the Open Meetings Act.

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SUMMARY

Ethical decisions are difficult to make, even with guidance. An individual's ethical values differ from those of that individual's society. The norms for that society need to be reduced to written laws or codes and all public officials should be bound by those codes. Certain ethical principles are standard to most modern societies. Those principles are that the public good must come before private gain, and that each elected official should exhibit integrity and openness in matters affecting the public. Financial conflicts or appearances of conflict should be eliminated.

There are examples of codes of ethics available, and the Council on Governmental Ethics Laws (COGEL) is in the process of developing a model code. It is important that codes reflect the values of the community, and be as simple as possible. Codes should be in writing, to avoid the appearance of not caring, but more importantly to guide employees, supervisors, and elected officials. Other ethics essentials are listed below:

1. Individuals chosen must have a strong sense of self-worth, personal integrity, and altruistic goals.

2. Organizational values, goals, and ethics standards must reflect society's expectations and be reduced to clear written form.

3. These written laws or guidelines must contain ethics standards that are reasonable, practical, obtainable, and enforceable.

4. A program for education, training, technical assistance, and advice must be established to ensure understanding of expectations.

5. A panel, board, or review system should be established, that allows "official" interpretations, makes judgements on violations, and enforces the ethics standards or laws.

6. Ethics laws must provide for a systematic method for evaluation, flexibility, modification, and change as society and needs change, while remaining stable and constant at the core.

7. There must be individuals of perseverance, knowledge, skills, and tenacity to ensure that ethical conduct becomes the accepted norm, and the "right" way succeeds.

I'd like to close this paper with a quote from Paul R. Leonard, Lt. Governor of Ohio: