Introduction to the Ethical GPS: Better Part of Valor Frank Shafroth, Chief of Staff for U.S. Congressman Jim Moran Megan Kelly, Assistant County Attorney, Prince William County Tracy Gordon, Aid to Supervisor Marty Nohe, Prince William County I. Introduction Ethics is the foundation which instills public trust in government. At a time when American citizens regard government with skepticism at best and palpable distrust at worst, it is increasingly important for governments to foster a trusting relationship with citizens and stakeholders. Local governments, as the level of government closest to the citizens, need public trust to effectively govern and provide services. Perception is a significant element in ethics, especially within the public arena. As such, it is not only important to act in an ethical way, but to ensure that the public is aware of the underlying ethical values of the government. Elected officials, appointed officials and staff play a part in the establishment of a trustworthy government. As an ethical culture across all strata of the government is demonstrated to citizens, citizen satisfaction and cooperative participation result, further fueling the synergy. II. What regulates the activity of the Local Government Attorney? Virginia Laws and Bar Regulations The Commonwealth of Virginia has laws and regulations in place that ensure transparency, guarantee the privacy of citizens, prevent conflicts of interest, and theoretically serve as ethics guideposts for both attorneys and government officials. The Freedom of Information Act, the Government Data Collection and Dissemination Practices Act, the Conflict of Interests Act and the Virginia Procurement Act promote transparency and ethical decisions and behavior in government. The Virginia State Bar promulgates regulations to ensure Virginia Attorneys act in a responsible and ethical manner. As the licensing arm of the State, the Bar can and does discipline and disbar attorneys who fail to comply with its regulations. Together, these laws and regulations foster ethics indirectly and to some extent directly, though none are overtly labeled ethics laws. While the Commonwealth has elected not to adopt specific ethics legislation, these codes touch upon many important aspects of ethics. The Bar, on the other hand, has developed disciplinary rules and a Code of Professional Responsibility to regulate attorney behavior. This guidance provides the foundation upon which local government attorneys may begin building their organization’s ethical culture. VIRGINIA LAWS The Virginia Freedom of Information Act (FOIA) §§2.2-3700 et seq., VA Code Ann. The purpose of the Virginia Freedom of Information Act is to provide legal requirements for transparency and to ensure that the public has access to records and public meetings. The Act provides requirements for open meetings, exemptions for closed sessions, requests for public records and provides civil penalties for willfully violating the Act. Government Data Collection and Dissemination Practices Act §§2.2-3800 et seq., VA Code Ann. While not preventing the disclosure of public information, this Act states that notice must be given to the person about whom information is requested. The Act also prevents public bodies from collecting personal information without legal basis, and provides guidance on accurate and lawful use of the information. State and Local Government Conflict of Interests Act §§2.2-3100 et seq., VA Code Ann. This Act applies to state and local officials as well as boards, committees and commissions, requiring them to disclose financial interest or abstain from voting in circumstances when participating in a vote would be inappropriate. The code also contemplates that government officials will only receive formal compensation and nothing else. The Virginia Public Procurement Act §§2.2-4367 et seq., VA Code Ann. The process of purchasing goods and services from the private sector for a competitive price is an area ripe for ethical failures. The Virginia Public Procurement Act dictates the rules for local government to purchase goods and services from the private sector. “It is important that persons conducting public procurement avoid, not only improprieties, but the appearance of impropriety. The integrity and credibility of the procurement program requires them to be impartial, fair and free of any relationships that may cause them to be partial to any vendor or product. Avoiding the “appearance of impropriety” often means going beyond what the law imposes. Getting the best deal for the public is the role of the public administrator. It must be done so in a fair and open process. VA STATE BAR REGULATIONS RELEVANT TO LGA PRACTICE DISCIPLINARY RULE 8-102: Special Responsibilities of a Prosecutor or Government Lawyer. (A) A public prosecutor or a government lawyer in criminal litigation shall: (1) Refrain from prosecuting a charge that the prosecutor or government lawyer knows is not supported by probable cause. (2) Not induce an unrepresented defendant to surrender important procedural rights. (3) Not discourage a person from giving relevant information to the defendants. (4) Make timely disclosures to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. (5) Not subpoena an attorney in any criminal case or proceeding, including any proceeding before any grand jury, without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is or was represented by the attorney/witness. ETHICAL CONSIDERATIONS. EC 8-11. A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise his superiors and recommend the avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results. RULE OF PROFESSIONAL CONDUCT 1.13: Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking for reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law. (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign or may decline to represent the client in that matter in accordance with Rule 1.16. (d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. (e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. COMMENTS: Government Agency The duty defined in this Rule applies to government organizations. However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulation. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Government lawyers, in many situations, are asked to represent diverse client interests. The government lawyer may be authorized by the organization to represent subordinate, internal clients in the interest of the organization subject to the other Rules relating to conflicts. Although in some circumstances the client may be a specific agency, it is generally the government as a whole. For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the government as a whole may be the client for purpose of this Rule. Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority. III. Unique Role of Government Attorney: Clear as mud! A. Where do you fit in? 1. Does your local government have an ethics code? If so, is your role defined? 2. Does it have an ethics process? If so, what is your role and responsibility? 3. What is your ethical obligation to make sure there is a process so that your government does not incur legal liabilities? B. Role as Advocate 1. Practically speaking, who is your client? To whom do you provide advice? Organization? Public/citizens? Agencies? Employees? Elected officials?? 2. Addressing conflicts: what if you have a true “right vs. right”? What role does/should politics play? 3. How to manage elected supervisors who don’t heed your advice, what if they want to engage in illegal behavior? Unethical behavior? Who decides? Can you resign? C. Role in developing public perception: how involved should you be? 1. Dealing with/managing the press? 2. Attending public meetings and interacting with citizens? 3. Developing policies that impact public perception/trust? 4. Fostering transparency in government? 5. Does you role change if you are anticipating/defending a lawsuit? Should it? 6. Do you have a duty to actively encourage an “ethical culture” in your organization? Isn’t this in the organization’s and therefore the elected officials’ best interest??
IV. The Ethical GPS: Navigating Everyday Dilemmas, A Local Government Guide[1] A. Origins of the publications and how it relates to Local Government Attorneys B. Book’s approach to building an “ethical culture” 1. Establishing an Ethical Culture a. Ethics and Public Trust b. Successful Ethics Implementation i. Consensus Building ii. Ethics Training iii. Ethics Resources iv. Sustaining an Ethical Culture v. Public Outreach 2. Establishing a Foundation of Values a. Commonly Recognized Values b. Types of Ethical Dilemmas c. Gaining the Public’s Confidence 3. Making Ethical Decisions a. Politically Unpopular Decisions b. Inconvenient Decisions 4. Mistakes: how to deal with them C. How and why should local government attorneys involve themselves in this type of process, if at all? V. Hypotheticals for Discussion: You are counseling staff/managers on the following scenarios….. A. Fudging the Numbers An agency is ending a very popular senior citizens’ program due to a lack of funding. An employee has found a grant opportunity on the internet, which virtually assures the municipality of obtaining the funding. The grant deadline is today. The only employee with the specific program data is on vacation, and in order to fill out the grant application, the numbers will have to knowingly be fabricated. Do you allow/approve of the employee guessing at the numbers, or shut down the program? Consider the following questions: 1. What are the competing values at play in this scenario? Laws? Regulations? 2. Would you recommend submitting the grant application? 3. How certain would you have to be regarding the program information, before you would submit it? 4. Would the perceived importance, value, or popularity of the program make a difference regarding your decision? 5. As a lawyer, what role should you play in this decision? B. Ethics Takes a Vacation A co-worker mentions to you that you would be able to save a significant amount of money on vacation by asking for the government employee rate at hotels. This hadn’t really occurred to you, since you wouldn’t be on government business. You also wonder what citizens and other hotel guests would think of a government employee using this discount, when it was obvious that you were there with your family. Your co-worker argues that it doesn’t matter – the hotel is grateful for your business, you save money, and taxpayer funds are never involved. Do you ask for the government rate next time you go on vacation? If asked, do you advise other employees that this is OK? Consider the following questions: 1. What are the competing values at play in this scenario? Laws? Regulations?? 2. Would you accept the discount? 3. Does it matter whether the hotel cares whether the discount is only for government business? Federal Government business?? 4. Could an employee be disciplined for misrepresenting the purpose of a family vacation? 5. Would you be comfortable having your decision mentioned to your elected officials? In a letter to the editor? C. The Gang's All Here The manager of one of your government run youth centers is having trouble with Kevin, one of his juvenile clients. Kevin disrespects staff and broke a pool cue today by throwing it against the wall. The disciplinary policy is clear that breaking equipment at the center results in a two-week suspension from the center. The manager knows that his older brothers are gang members, and if he is suspended he will spend his time with them. The center is a much better environment for this child. Should the manager bend the rules to keep the youth out of further trouble?
Consider the following questions: 1. What are the competing values at play in this scenario? Laws? Regulations?? 2. Would you suspend Kevin? 3. What if he is the only non-minority in the program? 4. Would it matter if this was Kevin's third offense? 5. What if there was pressure from the community? Or the press was involved? 6. Would it matter if other kids had been suspended for similar offenses? D. Gone Fishing A finance administrative employee needs his boss’ signature (electronic or actual) to approve a wire transfer to prevent your jurisdiction from defaulting on its debt service. His boss was expecting this and has everything prepared on his computer. However, his boss is out of the office on his annual fishing trip. The boss’ secretary confides that she knows the boss’ secret password, but is not authorized to use it. The admin employee wants the boss’ secretary to use the password in order to approve the form. He says he is sure that the form is okay, but does not have authority to make that determination. Failure to get approval will result in default. Consider the following questions: 1. What are the competing values at play in this scenario? Laws? Regulations?? 2. Would it be that big a deal if the secretary just used the password?? 3. Do you know other people's passwords? Do they know yours? 4. What if the transfer was made and something went wrong? E. My Time, My Business A citizen calls your office complaining that one of your employees was seen at a gentlemen’s club. You call the employee in to your office to ask about it, and he claims that what he does on his own time is his own business. In theory, you tend to agree, but this employee is heading up a project that will be very public and involve a lot of presentations to the community. You do not want questions of his credibility to influence the public participation in this initiative. Consider the following questions: 1. What are the competing values at play in this scenario? Laws? Regulations?? 2. Is there reduced privacy in the public sector, from a practical standpoint? 3. Is the caller's concern is valid? 4. How would you counsel your employee in this situation? 5. Would it matter if the employee had gone to a radical political meeting? A dogfight? A whites-only dinner club? VI. Examples of Tools to get started……. A. Ethical Culture Checklist (Attachment A) B. Sample Ethical Policy Resolution (Attachment B) C. Decision Guide (Attachment C)
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