The Emperor's New Clothes: A View into the Current State of Municipal Ethics

by Carla Miller

My favorite fairytale when I was growing up was the famous Hans Christian Andersen story, The Emperor’s New Clothes. In it, people deny the obvious fact that the Emperor was naked; they had to applaud his “new clothes” or they would be considered stupid by the group. And then a young child cries out “but the emperor is naked.” I wanted to be that little child. I wanted to be brave when I saw something wasn’t right, to shout out, not whisper, until others saw the truth. Years later, I got my chance, starting as a federal prosecutor.

“Here’s a new file for you to chew on,” said the U.S. Attorney. “Four of my attorneys have rejected it and don’t see a case.” Part of the evidence was a videotape of the President Pro Tem of the Florida Senate promising a restaurant owner—a felon and former member of the mafia—that he would get a state liquor license, and then the senator leaving the room with a brown grocery bag stuffed with cash. Surely, there was something wrong here. This led to a one-year grand jury investigation, several convictions and 14 additional investigations of city officials. The tentacles of institutional corruption in the city were pervasive but only the most egregious incidents resulted in criminal convictions.

A few years later, when I was in private practice, one of the men I convicted called me from federal prison. He was crying, almost delirious with grief, and wanted to talk. I felt incredible empathy for him. A promising career spun out of control—what could have been done to prevent this? Anything?

A colleague became mayor on an anti-corruption platform and I volunteered to help draft the first ethics code for our city, Jacksonville, Florida. I wrote sections creating an Ethics Officer and requiring ethics training (maybe this would help?). In 1999, I was asked to be the city’s first Ethics Officer, which I agreed to do as a volunteer. I wanted our program to be top-notch and I started a review of all U.S. municipal ethics programs. I developed a national website as a resource for other cities, was an officer of the national government ethics body (www.cogel.org) and worked to implement an anti-corruption office in my home city. After studying hundreds of examples, it became clear that local government ethics programs in the U.S. focus almost exclusively on legal compliance. (If you follow the law, all is OK.)

Current literature and research on institutional corruption typically deals with the “Big Boys”—Congress, the pharmaceutical industry, major banks. Issues focus on conflicts of interest and global connections that necessitate complex computer programs to track abuses. Most of this is over the heads of average Americans. They don’t understand it. They don’t get it. But they hope someone figures it out and handles it.

What they do get is what happens in their own local governments, the things that affect their lives directly, like lobbyists influencing council members so that a mega-store gets built near a residential area. Like the head of a city department using influence to “win” their spouse a million dollar no-bid contract. Like taxes going up to pay for out of control pension programs negotiated between unions and politicians. To borrow from Tip O’Neill, all politics is local. There are close to 40,000 local governments in the U.S. with varied approaches to ethics and anti-corruption programs. Let’s take a look at some of them.

The first approach could be called the “Turtle approach.” That is, pull your head in and pretend no problems exist. It’s enough if we comply with the law, and besides, we’ve always done it this way. This would seem to result from complete lack of awareness of the dependencies and influences that comprise institutional corruption or, alternatively, the recognition of the benefit of maintaining such a system.

The default approach of lawyers is what I call the “Hammer approach.” It’s characterized by things like 40-slide PowerPoint presentations that go over all of the conflict of interest laws in detail. Copies of the laws are distributed and people sign acknowledgement forms so you can prove “they were told.” Unfortunately, or by design, this overlooks the actual corrupting influences in the system. Most of the tips and hotline calls I have received as Ethics Director were about situations clearly corrupt as defined by the Center but technically legal. (“You aren’t saying we broke the law, are you?”) Having officials timely file their financial disclosure forms does not mean that all is well; it could be a thin veneer of compliance over a corrupted system. The legal approach is certainly a necessary component, but needs to be analyzed in light of the research of Yuval Feldman as to legal ambiguity and rule-following behavior.

Many cities attempt a “Values” approach and bring in experts to run seminars on basic ethics concepts. This is considered more advanced than just training on the law. This confuses the concept of personal integrity with the institution’s integrity, as outlined by Dennis Thompson, founding director of Harvard’s Center for Ethics and the Professions, now the Edmond J. Safra Center for Ethics. There may be elements of this approach that could be useful, as hypothesized by William English, who is researching the reliance on personal ethics where incentive architecture is not feasible.

A more complex approach is the “Decision-Making Labyrinth” which involves conversations about the law, the stakeholders, and the process used to arrive at a decision. One time I saw a lecture with an outline of how you should make a decision that filled an entire blackboard. Who makes decisions like that? The more complicated a process becomes, the more it can be manipulated by those with special interests.

And lastly, we have the approach most often used after a scandal, the “Window-Dressing Exercise.” Here, you roll out an ethics code and appoint local VIPs to a blue ribbon commission. You can spot this type of program, as it is typically connected to big press releases. Many times, the VIPs are culled from the same in-group responsible for the institutional corruption in the first place. After months of meetings, a few rules are put in place. Do they serve the public and get at the root of the corruption? Rarely.

While these frenzied “ethics” activities are taking place, the key power-brokers of the city are executing multi-million dollar contracts and channeling money to favored friends and business partners. Citizens intuitively know that their interests are not being protected, which leads to mistrust of local government. When this is combined with their mistrust of Congress, there is a cascading effect of disillusionment and disengagement. The very best players in this local government environment progress to Congress. Therefore, I would argue that in order to handle institutional corruption at the national level, it is crucial that we address solutions for municipalities.

There are many competent and well-intentioned people working in municipal ethics programs and they create positive effects. It is not their feathers that I wish to ruffle. My comments stem more from frustration at the shotgun approach in developing comprehensive programs. How is corruption defined? What structures are best suited to handle it? What educational tools are most effective? Who do you train, in what sequence, with what and why?

If the approach is disorganized and delivered in formats and structures that bore people or worse, inculcate hostility towards “ethics,” we are going backwards. This diminishes public trust and wastes limited resources that could be used to help people. The fact that we have sporadically trained officials and addressed random issues is not enough. We need a transformational approach based on research that has some chance of success.

When I first discovered the Center’s website and Professor Lessig’s 2009 lecture on the framework of institutional corruption, it was a turning point. The brick wall I had been running into had been named and defined. That is the foundation for being able to dismantle it.

I look forward to working with others at the Center. Their work has already shifted my viewpoint on what can be accomplished in the fight against institutional corruption. The Center’s research can be applied directly to municipal governments so that citizens and officials can be equipped with effective tools to stand up and say “the emperor is naked.”

I know with 40,000 municipalities, that this is somewhat ambitious. But, as JFK stated, “Those who dare to fail miserably can achieve greatly.”

I believe in the mission of the Edmond J. Safra Center for Ethics and hope to contribute to the effort—to the hope that together, we can “achieve greatly” in the fight against institutional corruption.


Attributions: Scan and text by George P. Landow http://www.victorianweb.org/art/illustration/ford/11.html