The Distinction between ‘Legal’ and ‘Ethical’ Behavior

It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do. — Edmund Burke

Here at MRSC we are frequently asked some variation of the question, “Can ‘they’ do ‘that’?”

The question comes in many forms, including, but not limited to, a council or board member asking about something the chief executive wants to do (or already did) and vice versa. Or a member of the public complaining that staff (or a council/board member, or the chief executive) was rude to them, did not respond to them, or otherwise treated them in a way that the person thought was inappropriate.

Law vs. Ethics

These questions often have two components: 1) What is the legal authority for “that” and 2) “should” the person/agency/body do “that.” Retired MRSC Legal Consultant Jim Doherty once wrote on this topic, noting:

Actions are “legal” if they do not violate the laws or codes of the local government, state, or federal government. Actions are ‘ethical’ or ‘moral’ (I will treat the words as synonymous in this article) if they meet an individual’s personal code of conduct, which may be based on a particular social, religious, or other group norms.

“Legal” is easy; “Ethics” is not. Merriam-Webster’s online dictionary defines ethics both as “a set of moral principles” and “principles of conduct governing an individual or a group.” It defines morals as “of or relating to principles of right and wrong in behavior” and “sanctioned by or operative on one’s conscience or ethical obligation.”  

There is clearly some overlap between these definitions, but when I train on this subject, I talk about the difference between what people do and why they do it. I think the what (and sometimes the how) lends itself nicely to an ethics code. But I think that principles of right and wrong, like treating people with respect and kindness, are often rooted in morals, which for a government agency can be hard to codify and even harder to enforce equitably.

Some agencies do not distinguish between the two. They include both prohibitive behavior (e.g., do not use agency resources for private benefit) and aspirational goals (e.g., be nice to each other and the public) in their ethics codes.

Others separate the prohibited or conflict of interest rules into one policy or code of ethics, while aspirational expectations are included in council or board rules of procedure for elected officials and in a personnel manual or employee handbook for employees. There is no right or wrong way but remember that when you make an action required or prohibited you will be expected to enforce it. If your agency is going to adopt aspirational expectations, be clear about how (or even if) the agency intends to enforce them. For more information, see our blog on Ethics Codes for Local Governments, Part 2: Processing Complaints, Imposing Discipline.

Winning Is Easy. Governing Is Harder.

In the musical Hamilton, President George Washington tells Alexander Hamilton that governing rather than winning is the hardest part.

I have found it relatively easy to draft and train on the legal requirements of ethics codes. The harder question is always: “How can my agency best encourage its officers and employees to act ‘ethically’?”

I have no idea. No, really, I don’t.

I don’t have to tell anyone working for local government or serving as an elected official at any level that “civil engagement” has become much less “civil.” MRSC’s blog archives are filled with articles discussing this and offering possible solutions (see When Hate Comes to Town: Addressing Racist and Anti-Semitic Public Comment at Meetings, Building Trust During Polarizing Times, Managing Conflict at Work with Strategies that Actually Work, Dealing with Difficult Behavior, Strategies for Managing Difficult Public Meetings, Lean on Me: A Culture of Respect in the Workplace). I do not presume to know more, or have better ideas, than these authors (or you.)

The agency could try to make aspirational goals more prohibitive, then enforce them, but I think that raises two problems. First, the agency must decide whether and how it will enforce the aspirational goals it has just created. Will these goals be the basis for discipline if not followed? Will supervisors use them as coaching tools during performance reviews? All of these have implications that the agency will need to discuss with its attorneys and may be required to bargain with the agency’s unions.

Second, it often conflates actions with attitudes. For example, I worked for an agency that was redrafting its personnel policies and had originally included language that said that staff should greet customers “pleasantly” and “with a smile.” Being somewhat curmudgeonly, I told my colleagues it was unlikely that I would be doing that. (I may have used stronger language).

I also pointed out that since many — if not most of — our customer service staff were women, I did not think it appropriate for the agency to essentially order them to “smile more.” In that case we ended up with language that was more focused on objective manifestations of courteous behavior, like responding promptly, or taking additional steps if necessary to find the answer to a question or refer the person to someone who could.

The agency will also have to remember that its officials and employees do not lose their First Amendment rights merely because they now work for a government agency. MRSC has written extensively about this issue as well (see Adverse Employment Action for Employee Social Media Use: Balancing First Amendment Rights and Governmental Efficiency, Political Speech and Lobbying by Local Government Employees: What are the Rules of Engagement?)

We’ve also covered how members of the public have First Amendment rights when addressing their elected officials or interacting with staff (see When First Amendment Rights and Public Meetings Clash, Rights and Limits on Filming in Public Facilities).

So, do you have an answer for us or not?

Not.

All these options lead right back to the problem of what are “principles of right behavior” and what are the bases for those principles? A quick spin around the internet reveals an almost impossible number of sources to choose from.

One could choose from religious texts (but then you have to decide which texts, which lead to a whole new set of challenges), treatises on moral philosophy or normative ethics, or any other number of sources. The International City/County Management Association has written about mission and values statements, and MRSC’s Ethics and Conflicts of Interest and Local Codes of Ethics provide examples of what local government agencies are doing.

All I know for certain is that your constituents expect (rightly or wrongly) certain behaviors from officers and employees of local government. I think it is helpful to talk about the “why,” but you may find it easier to start with the “what/how.”

Finally, remember that you don’t have to figure it out by yourself. Talk to your constituents about their expectations. Talk to your colleagues and staff about what everyone “expects,” why they expect it, and how they see it being enforced. Talk to your counterparts in your statewide associations to see what they do and how it is working for them.

If your agency adopts something that does not end up working as intended, the agency can always change it. Sometimes, I think just having the discussion and trying to come up with agreed-upon goals is a good thing, even if you wind up not adopting something.