(Pix (c) Larry Catá Backer 2014)
Ethics has become an increasingly import aspect of governance cultures in public and private institutions. Once a principal concern of economic enterprises and governments, universities have sought to inculcate cultures of "ethics" within their operating environment. The intensity of these efforts, like those of other public and private institutions, has intensified as the common cultures that serve to ground an understanding of the nature and character of ethics has fragmented.
But it is precisely because of this fragmentation of the grounding culture that efforts to memorialize the framework of ethical conduct has encountered difficulties. These difficulties sometimes produce ethical codes that may appear as generalized gesture. (e.g., University of Illinois Code of Conduct). They invariably are reduced to short hortatory statements that are sometimes burdened with double duty as mandatory rule (a role to which they are ill suited). In either guise, these codes sometimes may produce either traps for the unwary or appear to impose radical new obligations that may produce cultures of mandatory mutual spying rather than ethical cultures among the affected university stakeholders.
Many times these efforts are generated as a response to outside pressure--from regulators, governments or as a result of scandal that suggests some sort of moral failure among employees, athletics staff, administrators or trustees. Often times the determination to proceed with these efforts as well as the drafting and management of its development is conducted by administrators, either through administrative staffs or under cover of a committee well larded by individuals who are described as "representatives" of most of the important sectors of university stakeholders. Often, institutional representative organs, like a faculty senate, are given a brief and pro forma opportunity to comment on wording only after the Code is ready for imposition, an opportunity that is expected to produce no substantive change and timed to make it virtually impossible for effective consultation on the embrace of the policy or the premises for the construction of the Code in the first place. Still, even this nod ion the direction of engagement ought to be gratefully received with hopes that a more effective relationship might emerge--in the future.
This post considers a generalized "typical" product of this next generation "Code of Responsible Conduct". It suggests that Codes of this type, reversed engineered int he sense that they are generated in the usual case in what might be understood to be hermetically sealed environments in which inputs are carefully screened o conform to the expectations of the form of the final product, may create some substantial traps for the unwary and provide a wide space for discretionary discipline which in the hands of unethical administrators can be used as a cover to punish faculty and staff (and lower tiered administrators) indirectly. This is most likely with respect to Codes that impose a positive obligation to report "wrongdoing." This is not to suggest that hortatory Codes are wasted efforts--indeed the opposite is true. But the analysis that follows suggests that Codes that purport to add a mandatory element may prove more troublesome than helpful, even in the short run.
Consider the following general model of a Code of Responsible Conduct:
Policy XXX CODE OF RESPONSIBLE CONDUCT
Policy Steward: Presidential "Leadership Team"
PURPOSE:
Fulfilling the mission of the University for those we serve requires the highest standards of integrity, responsibility, and respect. As direct contributors to this mission, all employees (including faculty, staff, administrators, and student employees) of the University are expected to follow this Code:
Legal and Policy Compliance
· Obey all applicable federal, state, and local laws, including, but not limited to, those pertaining to fulfilling the duties of employment, non-discrimination, anti-bribery, and anti-corruption.Conflict of Interest:
· Follow all applicable University policies and procedures.
· Abide by University policies on conflict of interest.Accurate Records:
· As required by University policies and federal, state, and local law, create, transmit and enter information into Penn State’s records accurately, completely, and with appropriate supporting documentation.Reporting:
· Report any wrongdoing, misconduct, or violations to the appropriate office/agency per University policy, one’s supervisor, or (anonymously) via Hotline or Alternative Method Online.
Non-Retaliation:
· Retaliation against any individual who makes a good faith report of wrongdoing to the University or an appropriate authority or who participates in an investigation or legal proceeding related thereto is strictly prohibited.
A review of the policy evidences both its merits and follies. The policy is meant to define a matrix--to achieve the highest standards of integrity, responsibility, and respect, all who fall within the mandatory requirements of the Code are expected to obey all laws and rules, to avoid conflicts of interests (as those are defined by the University), engage in substantial record keeping, embrace a positive obligation of "reporting" and expect to be protected against retaliation under certain circumstances. Taken together, this matrix reduces integrity, responsibility and respect to legal compliance, a narrow duty of loyalty, a positive obligation to be able at a moment's notice to document one's activities, a positive obligation to ferret out wrongdoing, and a narrow protection against retaliation in the service of reporting wrongdoing.
This exercise in applied ethics poses its own ethical dilemmas--for the institution as well as for those caught in the thrall of these rules. Let's take them one at a time.
1. Legal compliance obligation: at first blush, the obligation to comply with all laws, wherever sourced and all university policies seems innocuous enough. It might even be said to state the obvious. But a closer look reveals some potential traps and opening for discretionary action that may be detrimental to those who must comply. First, the obligation to comply with all law may at times bump up against constitutionally protected political rights with respect to those laws--national, state or local--that might be subject to critique or opposition. Consider the staff members, both female, who choose to marry in violation fo the law of the state that prohibits such unions. They have breached the Code and acted unethically, but have they? The answer that no reasonable administrator would move against such conduct provides (or ought to provide) provides little comfort and substantial worry--it suggests that one must rely not on the rule of law (in the form of the Conduct Code) but on administrative discretion. That provides no answer because, ironically, such administrative discretion might also violate the Code requirement for the conformity of action to law. The legal compliance provision thus includes a mandatory element of unbethical and perhaps at times unlawful conduct.
Moreover, the rule has no proportionality built into it. Violation of local speeding laws make the violator as culpable as the robber. Violation of rules of direct application to the role of the individual and the nature of her duties have the same effect as those so remote from university duties as to be irrelevant.Again, the individual would be asked to rely solely on the good judgment of administrators. But again that would suggest that the Code does not apply to administrators exercising such discretion, or that the Code applies differently to them. That is hardly reassuring. And it is hardly a basis on which to build a rule based ethical institutional culture, grounded on ethics rules applicable only through administrative enforcement or forbearance. One assumes that the consequences of violation may be found elsewhere--in the rules for contract termination, or tenure revocation. To that extent the rule provides a valuable protection--but also creates a potent weapon for an administrator who would seek to use the process of rights defenses built into these systems to torment an employee now reduced to the cost and emotional drain of defending against allegations with little hope that administrators who misuse their discretionary authority will themselves face punishment. But that is an old story.
Lastly, the obligation to comply with university policy is also a bit of an odd bird. It first appears to lay a trap for the unwary--one must comply with all applicable rules. But the determination of applicability also may be made known only post facto and by the action of an administrator on whose discretion lower tiered employees would be forced to rely. We move again from a system of rule based to one characterized by discretion based--the rule of man substituted for the rule of law. One wonders, as well, whether the follow all rules command imposes the further obligation to avoid seeking to challenge such rules or work to change them.
2. Conflict of Interest. There ought to be little objection to the obligation to conform to conflict of interest rules. But there ought to be an objection to the underlying conflict of interest rules that are meant to vest administrators with substantial discretion over faculty or staff activity beyond core conflict situations. Many institutions, and especially universities, not well versed int he art of drafting rules to focus on the problems that make the rule necessary, tend to overwrite rules or write them so broadly that individuals are deprived of substantially all discretion and power is substantial transferred to approval power vested administrators. There is little need for this other than a fear of missing some potential element of wrongdoing not understood at the time of drafting, or a lack of competence in drafting. But it is hard sometimes to avoid the silly effects of badly and broadly drafted rules, especially in this area. Again, the usual is response is to rely on the reasonable exercise of discretion by administrators., But again that should be of little comfort because, such discretion my not be permitted by the terms of sloppy drafting badly, and my not be exercised by administrators motivated by the best or the worst motives.
3. Record Keeping Requirements. These requirements to conform to legally required record keeping is reasonable in the ordinary case. Likewise the requirement that one not engage in fraud or deception in the provision of information is also laudable. But a small point with larger significance: this obligation ought not to extend to unlawful requirements embedded in university policies for the provision of information that may violate privacy or which constitutes unethical overreaching of the university. Yet there is no provision here for challenging university overreaching. A small, but in context telling point.
4. The Reporting Requirement. The reporting requirement is perhaps the most troubling of the lot. The obligation requires reporting of any wrongdoing, misconduct, or violations to the appropriate office/agency per University policy, one’s supervisor, or (anonymously) via Hotline or Alternative Method Online. This presents two principal issues. The first is definitional. It is not clear what is meant by wrongdoing. An easy and logical answer would be that wrongdoing is any conduct that constitutes a violation of any of the obligations of the Code of Responsible Conduct itself. That includes the obligation to report wrongdoing, as well as violations of law, university policy, record keeping and conflict of interest compliance. It also suggests a conflation of violation between legal and university rule obligations, both treated as equivalent violations justifying reporting. But that is not clear. Wrongdoing might also include breaches of moral obligation. A clearer definition of wrongdoing would be helpful. An overbroad or sloppy definition would do more harm than good. Worse, perhaps, is that the reporting is not limited to wrongdoing but might be broadened to include suspicion of wrongdoing. Must I report that I saw a person break open a locker and take items from there without inquiring whether the locker was theirs or whether they were performing an act at the direction of another (the owner)? The conundrums and traps could be easily multiplied; and absolution available only by administrative grace.
The second centers on the nature of the reporting obligation. If the obligation to report wrongdoing is permissive, then the university might be lauded for advancing an excellent aspirational goal. It may use this aspirational expectation in working toward the development of the social norms that ought to be embraced generally by the university community. But if the rule is read as imposing a mandatory requirement, then the reporting obligation assumes a darker character. First, this mandatory reporting rule creates a standardless obligation that may suggest the need to develop cultures of monitoring and surveillance at odds with the traditional culture of the university. To what extent, for example, does such a mandatory rule also give rise to a duty to monitor or to investigate the work, character or actions of others. Does this impose an obligation to monitor and develop surveillance structures for employees, for administrators? If so by whom? Might such a mandatory rule require faculty to spy on the President of the university to ensure their compliance with the reporting wrong doing rule, or would the rule be used to enhance the poser of senior officials to monitor inferiors? None of this enhances the social harmony of a university community and indeed works against that worthy goal. Second, such a mandatory rule would appear to permit administrators to discipline employees who fail to report wrongdoing when they might have (in accordance with standards and expectations that appear nowhere and that may be manipulated at the whim of those applying them). Here is a case of good intentions gone very very bad. Third, such a rule would also create additional burdens in its interaction with other Code of Conduct Rules. Would employees now have a duty to keep records that demonstrate that they had no obligation to report or that demonstrated the reasonableness of decisions not to engage in further monitoring or investigation that might have led to the reporting of suspected wrongdoing. Whiel this might not be intended, the obligation to comply with all rules may make such scenarios quite real and the consequences troublesome.
5. No retaliation rule. On its face the no retaliation rule appears reasonable, And one ought to be grateful for the willingness to protect employees who take advantage of what might be a mandatory obligation. But I have written already about the way in which such whistle blower rules tend to be enormous traps for the unwary. This rule here does little to reduce the effects of those traps. See On the Limited Promise of Whistle Blower Protection Statutes for University Employees--Narrow Scope and Traps for the Unwary (May 12, 2014).
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The analysis suggests the ultimate problem of these efforts--the likely failure of projects that seek to transform moral principles into mandatory rules. Rules and principles are creatures of two quite distinct modalities of expression and social embedding. Principles are internally compelled premises about how to determine conduct choices. Rules are externally imposed commands for the resolution of conduct choices. Principles are general; rules must be specific. Principles guide; rules control. To seek to transform principles into rules requires a translation of the forms and methodologies of one system for another. But Mandatory Codes of Conduct appear to seek to transform principles into rules by fiat. The result is confusion and perversely the erosion of rule systems for systems grounded in administrative discretion. That may not be the message a university might intend to convey. As a set of principles guiding discretion, the efforts represented by these Codes of Conduct may prove useful. As a mandatory system of rules, hyper simplified, it may have the opposite effect.
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