The Responsible Public Servant: Second Edition

Canada

Introduction

Should public servants be obliged to blow the whistle? Are public servants responsible for the outcomes of policies adopted on the strength of their advice? Should a public servant be able to moonlight? Should public servants be obligated to limit their rights to free political expression? To what levels of risk should public servants expose members of the public? Should public servants be proactive in providing relevant information to stakeholders and citizens? What is the nature of their obligation to protect the privacy of citizens and employees? To whom and for what are public servants accountable? This book does not provide definitive answers to questions such as these. In fact, we try hard not to be overly prescriptive about what responsible administrative behaviour is – except to defend the most basic proposition that a responsible public servant does not knowingly contribute to state actions or inactions that violate the law, misuse state resources or cause indefensible harm to those affected by them. What this book does provide is a practical examination of the arguments that are made on both – or many – sides of difficult questions about how public servants should conduct themselves. Thinking about these questions won’t necessarily make decisions any easier, but it should cause public servants (or prospective public servants) to reflect on how they currently deal (or would deal) with difficult choices in their public lives, and it may even provoke them to approach some of these problems differently.

Our focus is the nature of responsible behaviour at all levels of government. So this is a book about professional or applied ethics – reflections on the guidance provided to public servants about how to behave in their relationships with their political masters, administrative superiors, colleagues, clients, the wider public and, lastly, with their own personal interests. This guidance can take the form of fundamental commandments (e.g., pursue the public interest, avoid conflicts of interest, be politically neutral, maintain confidentiality, protect privacy and be accountable), more specific rules found in legislation, standards of conduct, oaths of office and other policy directives (e.g., do not raise money for a political party, do not release information without authorization) and lessons learned from the on-the-job behaviour of superiors and colleagues (e.g., always give the minister what he or she wants, use information to secure advantage).

These formal and informal standards draw their legitimacy explicitly or implicitly from political and ethical theory. In the United Kingdom, Canada and Australia, for example, the interplay of ideas about how coercive state power should be distributed among and used by politicians, administrators and the judiciary has led over time to the development of the Westminster model of responsible cabinet government. This development, in turn, has spawned ideas about the proper role for public servants operating within that model and the principles of political neutrality, anonymity and accountability. Ideas about how public servants should act also emerge more directly from ethical theory, with its focus on the application of concepts such as responsibility, consequences, duty and virtue to the hard policy and administrative choices faced by public servants. For example, contending theoretical notions about the meaning and importance of privacy and the obligation to protect it have been drivers of contemporary efforts to establish fair information practices for public servants. In our view, arguments based on ethical theory ultimately trump the behavioural demands of particular governance arrangements, representing an important litmus test for questionable rules and practices (e.g., undiluted loyalty, high degrees of confidentiality) established by politicians and senior officials.

Public servants can confront the issue of responsible behaviour in a number of ways. First, they may simply encounter situations in which they don’t recognize the contentious nature of a choice they face. Usually this means something like simple ignorance of a phenomenon such as conflict of interest. Here our task is largely to help the reader identify conflict of interest, explain why it is problematic and what forms it can take in contemporary public administration, clarify what it means to avoid conflict of interest and discuss the variety of methods governments have developed to combat this common phenomenon. In short, the book helps the reader to understand an easily defended – but still complex – obligation to keep considerations of private interest out of the administration of public responsibilities.

Second, public officials will encounter situations in which the standards of responsible behaviour are not so clearly articulated or are actually contested. A good example would be the often conflicting obligations a public servant experiences when deciding whether to keep information confidential or to share it more broadly with affected stakeholders and members of the public. Here our task is to reveal to the reader the contemporary debate about what a public official should do when the values of transparency and secrecy collide and the definition of what responsible behaviour looks like is in flux.

Third, and an extension of the second point, public servants may (only occasionally we hope) face situations in which there appears to be little prospect of finding a course of action that is not ethically wrong in some respect. This would involve making choices about what to do or recommend when all of the choices will harm some of those affected by the action or violate widely accepted ethical principles. Some commentators would refer to such situations as true moral dilemmas, ethical conflicts in which, in order to do the right thing, one has to do the wrong thing; in which in order to do good, one must also be or do evil (Parrish 2007, pp. 1-2). In a moral dilemma our task is to clarify the nature of the various harms that can emerge from the choice being confronted, explore the ethical principles at stake and provide tools for thinking about what an ethically defensible action would look like.

We will not be examining corruption and corrupt practices in public administration. There is obviously a very fine line between conflict of interest (where an official has a personal interest that could interfere with the performance of his or her public duty) and corruption (where personal gain is the key driver of a public servant’s behaviour). We are fortunate to live in a society in which the latter is only occasionally found to be an institutionalized part of the administrative system. In any case, from a professional ethics perspective, activities such as extortion, embezzlement, solicitation of bribes and acceptance of kickbacks are not interesting. No Canadian public servant has to be told that such activities are wrong. They are clearly prohibited by the Criminal Code and are ethically indefensible. For similar reasons, we also do not focus attention on workplace behaviours such as harassment or discrimination based on gender, race, ethnicity, religion, disability or sexual orientation, which are clearly condemned by law.

The ethical dimension of public sector employment is receiving much more attention than it did when we published the first edition of this book. Most schools of public administration and government training programs now offer courses, parts of courses or workshops on how public servants should behave on the job. Also, most governments have established standards of conduct and agencies and processes to encourage and enforce responsible administrative behaviour. Setting aside the effectiveness of such devices for the moment, this attention is a very positive development. In our view, nothing is more dangerous than a public servant who is technically fit but ethically flabby. Public servants and their political masters must recognize that much of the work they do involves difficult ethical choices. They must accept personal responsibility for the hard choices they make that negatively affect others and learn how to think ethically and justify their decisions. The most subversive purposes of this book are to speak up for the habit of ethical discourse in the conduct of public affairs and to make moral calculus as important as the quantitative analysis of policy options or the efficient management of financial resources.

Isn't Good Behaviour Obvious?

Why is there so little consensus today about what it means to be a responsible public servant? Why does the question of the morality of public officials remain such a contentious issue? An easy answer to these related questions is that the media are to blame. There is no doubt that traditional and social media are providing the public with much more coverage of cases involving questionable behaviour on the part of elected and appointed officials. Investigative reporting and more access to government information – through formal requests for information or through leaks – allow the media to present detailed stories about the means, ends and methods of modern governments and public servants. These stories make good copy and interact nicely with what many commentators argue is a burgeoning loss of public confidence in governmental institutions. Whatever their effect on public confidence, stories about such issues as abuse of authority, conflict of interest, partisanship of public servants and denials of responsibility for mistakes leave an impression that there is turmoil among both elected and appointed public officials about what responsible public behaviour looks like. A few commentators argue that there is no evidence that behaviour in the public sector has become worse. However, more suggest – on the strength of cases featuring involvement by public servants in partisan political activities or serious violations of the privacy of citizens, for instance – that traditional standards have weakened and that Canada’s reputation for a professional, reliable and neutral public service is being eroded (Savoie 2008).

Media coverage of inquiries into such events as the sponsorship scandal and the Walkerton tragedy (Canada. Commission of Inquiry into the Sponsorship Program and Advertising Activities 2005; Ontario. Walkerton Commission of Inquiry 2002) may partly explain our continuing fixation with the integrity of government officials. However, such coverage does not in itself account for the widespread questioning about what it means to be a responsible public servant. For such an explanation we have to look at changes within government and the public service, and to the evolving relationship between public servants and politicians.

Two factors most commonly seized upon are the size and role of the public service. It is argued that the growth in the public service from the Second World War into the 1970s (and for some provincial and municipal governments into the 1980s and 1990s) was a deciding factor in the fragmentation of its organizational culture. What in virtually all jurisdictions in Canada had been tightly knit bands of career public servants, led often by mandarins with several years of military experience behind them, became big, anonymous bureaucratic units with large numbers of new, unsocialized recruits and a necessarily distant, inaccessible leadership group increasingly subject to rapid turnover. That leadership was incapable of commanding the deference toward its values and rules that had been accorded to those of the mythologized and long-serving mandarins. To complicate matters further, many of the new public servants came from the private sector and professional groups, bringing with them diverse and often very different values and standards of conduct. To this complex brew was added the factor of unionization and its potential for the introduction of competing values and loyalties.

Throughout this period the traditional organizational culture was further undermined by subtle but important changes in the role of public servants. The increased scope and complexity of government’s intervention in the economy and society revealed more clearly that despite the mythology of a clear split between politics and administration, many decisions involving substantive policy were being made by public servants. This reality was reinforced by the impact of private sector managerial thinking on public sector organizations. The effect has been to encourage the devolution of discretionary decision-making power to lower and lower levels of management and supervision. As a result, public servants at all levels face new questions about the meaning of neutrality, how they go about deciding what policy, regulation or decision is in the public interest, and for what and to whom they should be accountable.

The explosion of public sector activity also brought new pressures on the public service culture from oversight organizations within government. Auditors general and comptrollers became powerful champions of the values of economy, efficiency and effectiveness. Similarly, the courts and provincial ombudspersons entered the arena on behalf of the values of fairness and procedural equity. Freedom of information and privacy commissioners fostered openness on the one hand, and privacy protection on the other. Conflict of interest commissioners, lobbying commissioners, equity and harassment officers, integrity officers, children’s commissioners and commissions of inquiry have all added to the increasingly complex mix of agencies whose overlapping mandates were designed to clarify, communicate and enforce new standards of conduct for public officials (Langford and Tupper 2006). All of this has had the effect of disturbing the hierarchy of traditional standards and forcing the public servant to face hard choices between values such as privacy and efficiency, effectiveness and fairness, and openness and confidentiality. The reports of these oversight agencies on the shortcomings of public servants have also provided a regular flow of depressing tales of misbehaviour for the traditional media and the blogosphere.

But the suggested disintegration of the traditional principles of ethical behaviour does not end here. The public sector administrative culture has been more recently disturbed by the neo-conservative counter-revolution, which in many jurisdictions has taken the form of cutbacks and the privatization of public services. The high premium placed on mobility and term employment has had the inevitable effect of reducing the possibility of building strong organizational cultures based on the notion of a career public service. This disintegrative phenomenon is exacerbated in some jurisdictions by the politicization of the managerial ranks of the public service and the emphasis being placed on fairly simple-minded forms of loyalty to the team. The traditional package of public service standards of conduct did not contemplate a situation in which public servants would become little more than agents of their political masters.

Every reader will undoubtedly be able to note other factors that have contributed to the contemporary questioning of the meaning and relevance of the traditional statements of public service standards of conduct. Such factors might be internal to the public service (e.g., downsizing, rapid staff turnover, diversification of work force) or shared with the wider societal culture (e.g., changes in information sharing and surveillance technologies, globalization). Some changes seem obviously contradictory in their impact. For instance, forces inclined to decentralize authority and increase the decision-making independence of public servants who deliver services would appear to be at odds with pressures designed to bind the public servant more tightly to the policy and communications leadership of his or her political master. The more important point for this study, however, is that both pressures tend to destabilize the classic relationship between politicians and public servants, leaving the latter uncertain both about their roles and what represents appropriate behaviour toward politicians, colleagues, clients and citizens more generally.

How Is the Book Organized?

What are the big ethical questions facing appointed officials? What issues do we focus on in this book? In general terms, we are concerned about how an individual public servant should act when he or she is involved in activities of government that affect members of the public, fellow employees, political and administrative superiors, and the society as a whole. We are interested in provoking thought and discussion about the nature of obligations and duties, the calculations of consequences, the balancing of conflicting values, and the goodness and badness of administrative practices and public policies. In our view, there is much more to being responsible than the mere avoidance of blatant corruption.

This study examines the traditional and current meanings of the primary principles to which the responsible public servant is widely expected to adhere. These commandments are: act in the public interest; be politically neutral; avoid conflicts of interest; do not disclose confidential information; protect the privacy of citizens and employees; and be accountable.

Before beginning our investigation of these commandments, or principles, we look at the more basic question of the personal moral responsibility of public servants. Chapter 1 tackles a number of questions that are often used to deny the necessity for public servants to think ethically. It asks first if unethical behaviour is a pressing problem in the public sector? And, if it is a significant issue, is ethics really the concern of your average government employee? Aren’t most public servants just bit players in a drama in which the hard moral choices are made by senior administrative and political superiors or, alternatively, by so many people that no one individual is responsible for them? Is moral responsibility also limited by the very nature of the role of a public servant, which, some argue, must allow for dirty hands (i.e., the violation in the public sphere of commonly accepted moral standards)?

If these arguments are insufficient to insulate the public servant from personal responsibility for his or her actions, we then face in chapter 2 the question of how to make choices and justify our actions when confronting public sector moral dilemmas. We deal first with the contention that it’s all relative – the argument that there are no universally accepted right actions. Why worry about justifying your behaviour if there is no possibility of determining what the right answer is? Rejecting the siren call of moral relativism, we move on to finding ways of establishing defensible answers to vexing moral dilemmas. This involves examining the key approaches to ethical dilemmas recommended by moral philosophers to see if any of these modes of ethical thinking help us cope with the kinds of choices we face in the public sector. The latter part of the chapter tries to provide the public servant with a practical ethical tool kit, some techniques and theories for dealing with the hard questions.

Chapter 3 extends this discussion by examining the meaning, value and pervasive presence of the concept of the public interest. This is followed by a discussion of the relationship between public servants and politicians in the determination of the public interest. We explain the duty of public servants to speak truth to power while respecting the ultimate right of politicians to decide what is in the public interest. We give special attention to the critical role of public servants in providing analysis and advice to elected officials about the policy choices that best promote the public interest, and we emphasize the need for public officials to be sensitive not only to technical dimensions of public policy, but to ethical and value dimensions as well. This is especially important in regard to the application of cost-benefit analysis in general and risk-benefit analysis in particular, including respect for the precautionary principle. These considerations lead to an examination of four major approaches to making the concept of the public interest operational. We conclude that while no single approach has been universally accepted as the best possible guide to decision making in the public interest, certain insights from each approach provide the responsible public servant with practical guidance.

Chapter 4 examines the duty of the public servant to adhere to the constitutional convention of political neutrality. Public servants are regularly advised that they have a duty to be politically neutral. But what does political neutrality mean? What are the laws and traditions that constitute the duty to be politically neutral? Is there general agreement on what these laws and traditions mean and on their current relevance? What are the links between merit, patronage and political neutrality? Where should the balance be struck between political rights and political neutrality? Where does one draw the line between political sensitivity and political partisanship? What does it mean to be loyal to the government of the day? Does political neutrality operate differently in municipal governments than in the federal and provincial governments?

Difficult issues of interpretation arise also in the examination of conflict of interest in chapter 5. The public servant’s duty to avoid conflicts of interest is complicated by several factors. First, the definition of what constitutes a conflict has been significantly broadened in recent years. Public servants are enjoined to avoid not only real conflicts, but apparent and potential conflicts as well. Second, there are many variations of conflict of interest, including, for example, influence peddling, moonlighting and accepting benefits. Third, the nature, extent and application of conflict of interest rules vary from one government, even one department, to another. Fourth, the discretionary power of public servants, combined with the vast size and complexity of government, gives them many opportunities to use public office for private gain. Finally, the public and the media have become less tolerant of conflicts of interest involving public officials. Increasing attention needs to be directed to ensuring that rules designed to deter and punish conflicts of interest do not encroach unduly on the rights of responsible public servants.

Chapter 6 deals with the two interrelated issues of confidentiality and privacy. In respect of confidentiality, it is notable that the public servant’s duty to keep certain information confidential clashes with a duty to satisfy the commitment of politicians to open government and to meet the disclosure requirements of freedom of information legislation. Despite the many rules providing direction as to what information public servants can or cannot disclose, there is considerable uncertainty as to how the responsible public servant should act in this sphere. This chapter reviews the arguments for and against secrecy and assesses the concepts of deception, disinformation, propaganda and censorship.

Protection of the privacy of individual and corporate citizens and of other governments is one of the primary justifications for confidentiality. But consideration of the public servant’s duty of privacy requires an examination of what kinds of information governments should be collecting and what constraints should be placed on the means by which it is collected, the purposes for which it is used, and its manipulation and management. The tendency of many public servants to violate principles of fair information practice in the face of contending values is noted. The responsible public servant must design the protection of privacy into initiatives focused on enhancing security, public safety, and service delivery and taking advantage of new information technologies.

Chapter 7 explores the duty to be accountable. Our focus is on the personal accountability of middle- and lower-level public servants rather than the accountability of the most senior public servants, ministers and city councillors. We first examine the traditional messages that governments continue to send to public servants about the duty of accountability. We then look at the more recent efforts to tie performance reporting to traditional hierarchical accountability. We go on to examine the other forces that are challenging the traditional vision of accountability to a single supervisor, including the demands of courts, tribunals and more powerful monitoring agencies within government, obligations as professionals to external, self-regulating professional bodies, the emergence of accountability relationships between public servants and the wider universe of people and organizations with whom they work, and the impact of shared responsibility arrangements. We ask how those challenges are reshaping the traditional duty of accountability. Finally, we look briefly at the notion that, ultimately, the public servant is accountable to his or her own conscience.

Chapter 8 focuses on how public sector organizations can build institutions and foster a culture in which public servants manifest a sense of personal moral responsibility. How can we create a hospitable climate for responsible behaviour within public sector organizations? How can we foster good behaviour, enforce rules and sanction offenders? In these tasks, we are faced with significant policy choices. Should we adopt a code of conduct? What form should this take? Should it, for instance, focus more strongly on values than rules? Is legislation necessary? How effective is ethics education and training? Do we need ethics counsellors and/or commissioners? Are criminal sanctions likely to be effective deterrents? What is the significance of role models and leadership and how can executives, managers, supervisors and ordinary employees exercise such leadership? In short, what regime should we construct to guide and regulate the behaviour of public servants and encourage responsible public service?

Within the commandments examined in chapters 3 through 7 are embedded most of the on-the-job ethical dilemmas that contemporary public servants confront. The problem is that these commandments – as interpreted within federal, provincial and municipal jurisdictions across the country – often do not provide public servants with uniform and clear messages about how they should handle such dilemmas. Or, where rules are stated relatively clearly, they are often seen to be inappropriate, anachronistic, contradictory or indefensible. There is no longer a widely shared consensus about what it means to be a responsible public servant. The orthodox religion of responsible behaviour is constantly under attack or simply declared to be irrelevant. In short, the traditional commandments governing the behaviour of public servants are suffering from a credibility gap.

As a result, public servants are confronted with a bewildering array of competing edicts, practices and pressures. Should I be loyal or politically neutral? Should I be open and accessible to the public, or should I maximize my efficiency? Is the effectiveness of the program more important than the privacy of its clients? Am I accountable only upward to the minister or horizontally to my colleagues and downward to my client groups? Can I help to build a new conservative social policy after a decade of involvement in the construction of the welfare state? Our concern, then, is to see what sense can be made of these commandments in the context of the often harsh contemporary world of choices that public servants face. We will be trying to strip away the rhetoric to examine the justification of positions for and against these rules and the actions they seem to dictate in specific situations.

Using this Book

The first edition of this book has been used successfully in both undergraduate and graduate courses devoted exclusively or in part to exploring ethical problems in public administration. It has also been employed equally successfully as background reading for management training seminars on public sector ethics. Each chapter contains cases that are for the most part based on real experiences and have been field-tested successfully in the classroom. Obviously, these cases do not begin to exhaust the variety of specific dilemmas that public servants confront as they go about their day-to-day work. Our experience suggests that students and management course participants are only too willing to provide case material from their own work world. While short, snapshot case scenarios can provoke the practical exchanges that make the discussion of difficult choices come to life, they usually suffer from one serious drawback. They rarely give the user an accurate feeling for the time frame over which public servants are pulled into more and more difficult dilemmas by the accretion of seemingly small and unimportant decisions or actions. Nevertheless, we are confident that this book and the cases included will make readers more alert to the ethical dimension of everyday life in the public service.

References

Canada. Commission of Inquiry into the Sponsorship Program and Advertising Activities (2005). Who is responsible? Summary. Ottawa: Public Works and Government Services Canada. Chaired by Justice J. H. Gomery.

Langford, J., & Tupper, A. (2006). How Ottawa does business: Ethics as a government program. In B. Doern (Ed.), How Ottawa Spends: 2006-2007 (pp. 116-137). Montreal: McGill-Queen’s University Press.

Ontario. Walkerton Commission of Inquiry (2002). Part one: Report of the Walkerton inquiry. Toronto: Queen’s Printer for Ontario. Chaired by Justice Dennis R. O’Connor.

Parrish, J. (2007). Paradoxes of political ethics: From dirty hands to the invisible hand. Cambridge, UK: Cambridge University Press.

Savoie, D. (2008). Court government and the collapse of accountability in Canada and the United Kingdom. Toronto: University of Toronto Press.

Chapter 1

Taking Personal Responsibility

Responsibility may well be the most important word in all the vocabulary of administration, public and private. (Mosher 1968, p. 8)

It is not enough to ask, Will my act harm other people?...I should ask, "Will my act be one of a set of acts that will together harm other people."...If this is so I may be acting very wrongly. (Parfit 1986, p. 86)

I did not think it was my role, as a simple bureaucrat, to call the police. (Testimony of an ex-engineer for the City of Montreal before the Charbonneau Corruption Commission). (Globe and Mail 2012, October 25)

Before beginning our examination of key commandments or principles to which Canadian public servants are traditionally asked to adhere, we have some underbrush to clear and foundations to lay. This chapter tackles a number of questions which are often used to deny the necessity for public servants to think ethically. Is unethical behaviour a serious problem in the public sector? If so, is ethics really the concern of the average government employee? Aren’t most public servants just bit players in a drama in which the hard ethical choices are made by senior administrative and political superiors or, alternatively, by so many people that no one individual is responsible for them? Is moral responsibility also limited by the very nature of the role of a public servant, which, some argue, must allow for dirty hands (i.e., the violation in the public sphere of commonly accepted moral standards) and even outright amorality?

If we find these latter arguments unconvincing, we are affirming that public servants are morally responsible for their contributions to government actions or inactions which benefit or cause harm to stakeholders, citizens, colleagues or political masters. That is to say, public servants are personally worthy of blame or praise for the way in which they behave as officials because their behaviour is part of a causal chain which has beneficial or harmful impacts, they are aware of the actual or potential impacts, and they are not acting under compulsion (Eshleman 2009).

If we are satisfied that a public servant is a moral agent, then how far does that personal moral responsibility go when he or she is faced with difficult choices which could result in harm to others? As we shall discuss in more detail later in this chapter, whistle-blowing legislation is increasingly putting pressure on public servants across the country to disclose situations in which colleagues or superiors are offending the public interest by violating the law, misusing resources or causing significant harm to people or the environment. It takes no leap of logic to insist that responsible public servants not engage in such activities themselves no matter what pressures are placed on them to do so. This means that public servants may face critical moments in their careers when expressing reservations is not enough, and they have to summon up the