RESOLVING ETHICAL DILEMMAS Strategies and Tactics for Managers

Using a decision-making model that is open to contending viewpoints and values, we show in this chapter how managers can tool up for fact finding, accommodating, and using selective trade-offs that lead to informed, principled choices. With thinking anchored in moral principles and values, the manager now is asked to do three things: (1) take a harm-averse stand, (2) admit that collective action is bound to hurt someone in some way, and (3) reconcile steps 1 and 2. Using tools for deciding what counts, the manager reconciles the responsibility to avoid doing harm with collective action and selective action. Central guidelines developed throughout the book are synthesized in this chapter for ready reference. Using a checklist, an application melds models and tools together to resolve a case on friendship and impartiality. The chapter concludes with a device for taking personal soundings on ethical responsibility and a case for exercising ethical reasoning. Ethics must not be reserved for experts or philosophers. If practitioners do not practice it and if decision makers ignore it, then public service and the public are in real trouble. For managers, ethics is only ethics when they are doing it. Public managers must be equipped to do what they cannot afford to eliminate and cannot legitimately delegate. Question: What does a public manager do when a weighty problem refuses to disappear and routine solutions do not work satisfactorily? Answer: Mull it over, seek advice and information, apply specialized knowledge and analytic techniques, CHAPTER SIX RESOLVING ETHICAL DILEMMAS Strategies and Tactics for Managers Y 14_967564 ch06.qxd 2/1/05 1:39 PM Page 141 and reason it out. The same is true for ethical problems. Ethical reasoning is a form of specialized problem solving. Its methods provide tools for making choices, and equipment is standard on all models. The package includes public service values, a systematic perspective, fact-finding and screening tools, and feedback devices and assessment tools. Of course, like all crafts, public service depends on the qualities of the craftsperson wielding the tools; fine equipment works best in the hands of someone with personal virtue, professional courage, and a decisive turn of mind. Decision-Making Models The three models discussed in this chapter expose managers to different ways of thinking through ethical problems. Because they help clarify a manager’s cognitive reasoning process, they are useful for reconstructing and then polishing one’s own rational model. They also offer the manager some elbowroom to make an individual choice. We now know that linear models of rational decision making based on a calculus of costs, benefits, probabilities, and risks do not describe the way human beings make decisions. Research in cognitive psychology such as Daniel Kahneman and Amos Tversky’s Prospect Theory (1979) undermines the applicability of the rational-actor model of decision making under conditions of uncertainty (Kahneman, Slovic, and Tversky, 1982). The research suggests that, instead of analytic processing and cognitive operations, decision making is a matter of determining categories and matching patterns, which helps explain the “powerful impact of contextual factors on decision making.” “Risk taking, time discounting, and interpersonal decision making . . . are much more a function of how people construe situations than of how they evaluate and weigh attributes” (Lowenstein, 2001, pp. 500–501, notes omitted). It seems that a choice heuristic that favors improvement over decline kicks in, along with decision biases toward seeking or avoiding risk that very much depend on decision makers’ understanding of the situation. All this suggests that decision makers draw on their experience and expertise first “to figure out what kind of situation they are in and then adopt choice rules that seem appropriate for that situation” (Lowenstein, 2001, p. 503). Further research needs to be done that applies relatively new developments in cognitive psychology to the context of public service and that relates risk of gain or loss to the likelihood and size of benefit (Douglas and Wildavsky, 1982; Fischhoff, Lichtenstein, Slovic, Derby, and Keeney, 1981; Green, Kahneman, and Kunreuther, 1994; Green, Jacowitz, Kahneman, and McFadden, 1998; Kahneman and Lovallo, 1993; and Kahneman, Slovic, and Tversky, 1982). Our understanding of ethical reasoning and anticorruption systems may be well served by incorporating, for example, the idea of “anchoring,” that is, using a reference point. 142 The Ethics Challenge in Public Service 14_967564 ch06.qxd 2/1/05 1:39 PM Page 142 [T]he concept of a reference point, an innovation central to recent models of decision making under uncertainty, can also be applied to intertemporal choice…. [T]he reference point reflects a simple insight: people evaluate the outcomes of gambles as gains or losses, or departures from some psychologically relevant point of reference, rather than as final levels of wealth (Loewenstein, 1988, p. 200). The best problem-solving method is the one the decision maker uses. Ethical analysis is not menu-driven, like computer software: if this, then that—then hit the key. There is no mechanical procedure, no automatic scheme, no standardized bubble sheet of correct responses to ethical dilemmas. Instead, choices, nuances, and fine-tuning favor individual tailoring. A manager might initially select among the analytic frameworks discussed here on grounds of practicality, theoretical appeal, or situational fit. Some managers may wish to try several models if the problem is truly momentous. The choice among models turns on the manager’s assessment of suitability and affinity. Is it appropriate? Satisfying? Does it square with time, resources, inclination, and circumstance? Our preference for merging the three models is shown in the application that follows. A compound method has it all; that is its strength and weakness. On the one hand, some managers reject testing decisions against several standards because, having selected a preferred ethical stance, they object to a combination (recall the discussion in Chapter Five about appealing to consensus). On the other hand, the genuine flexibility and built-in expansiveness may attract other decision makers who are not put off by complexity, factual and intellectual demands, or the time required. A composite may be best reserved for the truly exceptional dilemma. An analytic framework lets the decision maker break down a problem into manageable parts in order to examine them, then re-synthesize them and make better decisions. Sorting out and selecting among ethical claims—for what, to whom, and why—are central tasks in ethical analysis. The ethical values and principles at risk and the decision’s consequences are figured in. Some decision-making models (including Nash’s, which we discuss later) explicitly wed duties and outcomes; some models diverge over an accent on results for affected parties. Still others, not shown here, emphasize personal morality (Denhardt, 1988, for example). Calling on Integrity and Imagination Terry Cooper (1990) tells us that the ethical process means examining and ranking what is important (values) and general rules for guiding action (principles) in a given decision. Accepting the emotional component of people’s decision making, Cooper sets two goals for the ethical manager. The first is to maintain a sense of integrity and Resolving Ethical Dilemmas 143 14_967564 ch06.qxd 2/1/05 1:39 PM Page 143 avoid an “ethical hangover” when a decision incongruent with our self-image begets anguish (p. 24). The implication is that most of us would like to look in the mirror and see someone we can respect. (Oscar Wilde’s The Picture of Dorian Gray depicts progression in the opposite direction.) Cooper’s second goal is stretching “the moral imagination” (p. 22; see also Chapter Seven). A series of steps generates alternative solutions through serial reasoning from a results-based perspective. 1. Specify all conceivable alternatives. 2. Match probable positive and negative consequences with each alternative. 3. Identify principles related to each alternative. 4. Rank principles or values at stake and justify priorities as if to someone else or publicly. With choices generated, the task now is to select among them. Working on the assumption that public service role obligations are accepted, the decision-making method can be summarized in four steps (Cooper, 1990): 1. Review the facts and get what you need to know. 2. Understand roles and values, both your own inclinations and imposed obligations. 3. Consider all possible options and possible results. 4. Anticipate how you would feel about it and explain your decision. The fourth step, in part, parallels the publicity tests suggested at the conclusion of Chapter Three. According to Cooper (p. 24), “Resolution is reached when we discover an alternative that satisfies our need to have sound reasons for our conduct and our need to feel satisfied with the decision.” Accommodating Duties and Results Laura Nash proposes twelve questions that are grounded in the two broad philosophical traditions discussed in Chapter Five but that are expressed concretely and designed for practical business decisions. Substitute agency for corporation in the fourth question and add legislative body to the tenth, and public sector applications become apparent. 144 The Ethics Challenge in Public Service Questions reprinted by permission of Harvard Business Review. “Ethics without the Sermon” by Laura L. Nash (Nov.-Dec., 1981). Copyright © 1981 by the President and Fellows of Harvard College. All rights reserved. 14_967564 ch06.qxd 2/1/05 1:39 PM Page 144 1. Have you defined the problem accurately? 2. How would you define the problem if you stood on the other side of the fence? 3. How did this situation occur in the first place? 4. To whom and to what do you give your loyalty as a person and as a member of the corporation? 5. What is your intention in making this decision? 6. How does this intention compare with the probable results? 7. Whom could your decision or action injure? 8. Can you discuss the problem with the affected parties before you make your decision? 9. Are you confident that your position will be as valid over a long period of time as it seems now? 10. Could you disclose without qualm your decision or action to your boss, your CEO, the board of directors, your family, society as a whole? 11. What is the symbolic potential of your action if understood? If misunderstood? 12. Under what conditions would you allow exceptions to your stand? Nash’s method combines major (simplified) traditions in formal moral reasoning to explore the ethical content of workaday decisions in organizational settings and in language meaningful to a manager. Loyalty conflict (question 4) “is a workable way of smoking out the ethics of a situation and of discovering the absolute values inherent in it” (1981, p. 84), and disclosure or scrutiny (question 10) “is a way of sounding those submarine depths of conscience and of searching out loyalties” (p. 86). Nash sees the symbolic message as being aimed at domestic consumption within the organization and for external communication with the public. Questions 9, 10, and 12 test decisions against change. As in several cases in this book, changing selected circumstances clarifies reasoning, may alter the decision maker’s anchor or reference point, and reveals critical factors in making moral judgments. These three questions are especially suggestive from the standpoint of the public interest and public service. On the job, when demands prohibit delay, a mental checklist is a useful device for filtering and organizing information quickly. A checklist modeled on Nash’s framework is given in Exhibit 6.1, with an abbreviated version, designed for easy recall, shown in Figure 6.1. Together they represent a useful and inclusive method for making ethical decisions. The elementary standard—know the law—from Chapter Four is the starting point. Decisions are made with the heart and the mind but sometimes rejected in the pit of the stomach. The visceral test—Can I live with this?—serves as a final check, a precaution with the force of feelings behind it. The question taps into anticipated consequences and the likelihood of follow-through. Then it remains to monitor and evaluate the decision as it is implemented. Resolving Ethical Dilemmas 145 14_967564 ch06.qxd 2/1/05 1:39 PM Page 145 Questions for the Manager The abbreviated version of the decision-making model shown in Figure 6.1 combines the inclusiveness of Nash’s model with pointed questions from Michael Rion’s The Responsible Manager (1996). Rion builds a framework for practical decisions by business managers under severe time pressures. His construct poses six questions.

1. Why is this bothering me? Is it really an issue? Am I genuinely perplexed, or am I afraid to do what I know is right?

2. Who else matters? Who are the stakeholders [affected interests, individuals, or groups] who may be affected by my decisions? 146 The Ethics Challenge in Public Service EXHIBIT 6.1. DECISION-MAKING CHECKLIST. 1. Facts (including law) 2. Empathy and inclusion 3. Underlying causes and precedents 4. Stakeholders and responsibilities 5. Motives and objectives 6. Possible results and rationality 7. Potential harm (stakeholders) 8. Participation 9. Long-term timeframe and anticipated change 10. Disclosure and publicity 11. Appearance and communication 12. Universality and consistency FIGURE 6.1. ABBREVIATED DECISION-MAKING MODEL. Engage in fact finding Make accommodations Use selectivity/Make trade-offs Make judgment (informed, reflective choice) Take decisive action Monitor and evaluate result Reprinted by permission of Michael Rion. The Responsible Manager. Practical Strategies for Ethical Decision Making. West Hartford, Conn.: Resources for Ethics and Management, 1996, pp. 13–14; original emphasis deleted. 14_967564 ch06.qxd 2/1/05 1:39 PM Page 146

3. Is it my problem? Have I caused the problem or has someone else? How far should I go in resolving the issue?

4. What is the ethical concern—legal obligation, fairness, promise keeping, honesty, doing good, avoiding harm?

5. What do others think? Can I learn from those who disagree with my judgment?

6. Am I being true to myself ? What kind of person or company [or agency] would do what I am contemplating? Could I share my decision “in good conscience” with my family? With colleagues? With public officials?

The first question highlights the difference between a real ethical dilemma and the courage to follow through on ethical obligations. It is especially handy for shortcircuiting evasive waffling used to postpone unpleasant or costly action. In Rion’s approach, ethics is not just a rational process, although it is a deliberative one. Because they have to live with the outcomes, managers should be comfortable with them. The third question needs to be distinguished from the excuse that “it’s not my job” or from the argument that no one is responsible for collective decisions in a public agency. This question adds an element of reasonable selectivity to the proposition in Chapter Four: “We cannot hide behind our supervisor or our desk to escape responsibility.” A public manager wantonly doing good works would soon burn out or exceed both legal authority and the budget. The question now is how to opt reasonably and selectively for responsibility. Opting for Responsibility Recall the old story about a government employee who complains to the teacher that someone at school is stealing his child’s pencils. The father explains that it is the principle that bothers him, not the pencils—he gets all the pencils he needs at the office! Of course, behavior is not always this transparent, but it does seem easier to pin down, without qualification or queasiness, someone else’s responsibility than one’s own. When it comes to tough calls, it may also be easier to get bogged down in nuances and definitions as a way of bypassing decision making. At any rate, responsibility is not as difficult to define as to exercise. An earlier discussion organized ethical claims according to roles from which they stem and depicted them, for simplicity’s sake, as five separate clusters (see Figure 1.1). By extending that image, responsibilities can be visualized along a vector that runs from the informal, personal, and self-imposed responsibility to the formal, public, and externally imposed obligation. In actuality, roles are interrelated; they interact, overlap, and sometimes conflict, blotting out or magnifying segments of other multifaceted clusters. The result is a profusion of dos and don’ts, not all of which can be acted on simultaneously. Resolving Ethical Dilemmas 147 14_967564 ch06.qxd 2/1/05 1:39 PM Page 147 Daily events activate multiple responsibilities; they create dilemmas and spark the need for selectivity when a manager cannot meet all responsibilities at the same time. From harassment, racial bias, or preferential treatment to “managing romance at the office” (Exhibit 6.2), the public manager is embroiled in human drama, the law, agency pressures, and core values such as fairness and trust. The many responses from readers to the case concluding this chapter reflect the reality and controversy sparked by these multiple responsibilities. The decision-making model we adopt affects the responsibilities we accept and the way we choose among them when choice is necessary. Decision makers must use some sort of framework to sort and accept ethical claims, with the framework acting as a decision-making model. Our adopted model cues and sorts claims (Are they legitimate? Are they compelling?) and keys our choices among them. Figure 6.2 illustrates this idea in one clean thrust. Avoid Doing Harm In many models, the number one concern is how people are affected (leading to stakeholder analysis, discussed in Chapter Seven). A typical starting point is accepting the minimum prescription to avoid harming others. “Customarily, ethics in public administration means the obligation to avoid injury” (Stewart, 1984, p. 19). To avoid doing harm or inflicting injury is crucial for Rion, Nash, and others. It tops unobjectionable lists of commonsense moral values and rules (Goodpaster, 1984, p. 4) and, rendered as caring, is among the values around which there is general consensus (Guy, 1990, p. 14). It is a stringent standard under ordinary circumstances and even more so when regulatory and redistributive effects guarantee that people are helped and hurt differentially. The harm-averse stand is so important in public service that we add it to the ranks of basic guides to action. Exhibit 6.2 shows these essentials of ethical performance in public service. They serve as general guides by which to order competing ethical claims. 148 The Ethics Challenge in Public Service EXHIBIT 6.2. DOING PUBLIC SERVICE. Principles 1. Obey and implement the law (Chapter Two). 2. Serve the public interest (Chapter Three). 3. Avoid doing harm (Chapter Six). Action Guides 1. Take individual responsibility for decisions and behavior (Chapter Four). No escaping responsibility by hiding behind the boss or the desk, hiding behind subordinates, hiding behind ignorance. 2. Take responsibility for what is done and how it is done (Chapter Four). 3. Treat incompetence as abuse of office (Chapter Four). 14_967564 ch06.qxd 2/1/05 1:39 PM Page 148 Although the dictum of doing no harm deeply influences ethical reasoning and action, an ethical and pragmatic regard for competing claims forces us to moderate it through selectivity and trade-offs, as discussed in the next chapter. Selectivity calls for ranking the ethical claims on the manager as a way of establishing priorities. Rank Roles In some instances, a manager may prefer to set priorities according to the source of the claim and the operative roles (see Exhibit 1.2). To do this, the decision maker selects one ruling cluster and sidesteps or downplays others. (This is behind the argument about citizen versus official dissent in Chapter Two.) Although this works well for fundamental obligations in public service, other applications may produce crude oversimplifications that lead to the Morozov-like deformations described in Chapter One. The potential damage to important values and ethical claims can be minimized by making several checks. Anticipate followthrough by inquiring, “Can I live with this?” Apply the acid test of prospective publicity and ask what kind of person would do this and whether you want to be and be known as that kind of person. (See Chapter Three and the memorandum exercise in the Afterword.) Rank Responsibilities Given the actual prospect of exceeding legal authority, budget, energy, credibility, and more, what do you do when you can’t do it all? When avoiding harm is at issue, a useful approach to setting priorities and making trade-offs draws on (1) the type of ethical claim and (2) taking responsibility for one’s actions. The lower the claim on the list, the more appropriate is a principled no. Ranked in order of diminishing strictness, ethical claims are shown in Exhibit 6.3. Resolving Ethical Dilemmas 149 FIGURE 6.2. DECISION MAKERS USE A FRAMEWORK TO SORT AND ACCEPT ETHICAL CLAIMS. Doonesbury By Garry Trudeau DOONESBURY ©1988 G.B. Trudeau. Reprinted with permission of UNIVERSAL PRESS SYNDICATE. All rights reserved. 14_967564 ch06.qxd 2/1/05 1:39 PM Page 149 Public service’s posture of avoiding harm begets an obligation to correct direct or indirect problems we create. In thinking about the effects of actions or decisions, the ethical manager applies the rule of reason rather than conjecture but is obligated to examine reasonably foreseeable consequences and disclose analytic and informational limitations undermining certainty. A third and less rigorous claim moves the decision maker from the realm of obligation to responsibility and states it positively: to help. This line of reasoning is by no means unique to public service; many religions teach, first, not to do evil and, second, to cultivate good. Charity, the fourth ethical claim, is the least stringent. It is voluntary, self-generated, and dictated by time, energy, and personal inclination. Although doing charitable deeds is commendable, it is not necessarily ethical to do them at public expense or through public office. Thoughtfulness propels managers to distinguish charity from the obligation to do good (or beneficence, mentioned in Chapter Five). Doing good is defined by statutory mission for government and public purpose for nonprofits. It is especially important in public management to recognize the dual principles: “do no harm” and “beneficence.” Sometimes they must be balanced against each other. (Note that beneficence is not on the list in Exhibit 6.3 but figures strongly in Exhibit 2.4 as effectiveness.) Use the Threshold Test What about a problem a manager did not cause? Usually, this is the most challenging dilemma a manager faces. Apply a threshold test: the more that each of the following four factors applies, the more punch behind the obligation (Rion, 1996, pp. 64–65; Stewart, 1984, p. 21). As shown in Exhibit 6.4, a principled yes emerges from considering as many factors as possible. 150 The Ethics Challenge in Public Service EXHIBIT 6.3. RANK RESPONSIBILITIES. When you must make a trade-off, think about this: Given the very real prospect of having to exceed legal authority, budget, energy, credibility, and more, what do you do when you can’t do it all? The lower the claim on the list that follows, the more appropriate is a principled no: Avoid harm, the most stringent and the negative obligation Remedy or relief for problems we provoke Affirmative help for problems others cause Voluntary charity, the least stringent, doing good works 14_967564 ch06.qxd 2/1/05 1:39 PM Page 150 These factors elaborate on the commonsense yardsticks of proximity, saliency, and gravity that are used in Chapter Four to discriminate among top management’s responsibilities. The multifaceted notion of proximity can be broken down further by distinguishing among physical access, reporting lines, structure of authority, and cognizance. Although the threshold test is most commonly applied when immediate physical danger is threatened, it easily extends to injury of any sort, from material loss to severe violation of basic ethical values or principles. It is especially relevant to sorting out self-generated ethical claims. Although not everyone would agree that “[t]hese conditions provide a warrant to inject personal judgments” (Dobel, 1990, p. 360), they do promote vulnerability and dependency as critical factors in assessing ethical responsibility. At minimum, they should trigger earnest reflection. Ranking responsibilities and applying the threshold test reveal the dilemmas in the case at the end of this chapter. They also explain our emphasis on a future generations test. With neither voice nor vote to participate or to protest irreparable harm, future generations are the most dependent stakeholders of all, and public officials are their only institutional trustees. Realistically, because the point of all this is ethical action, time constraints and urgency are part of a manager’s calculation of priorities, even—or especially—ethical ones. Of course, managers can fine-tune any assessment technique by refining or adding criteria by which responsibilities are selected and ranked. Some possibilities are mandated mission and legislative intent, cost, reversibility, and future effects and beneficiaries. Application With the help of the foregoing tools, we can use an amalgam of the three approaches (from Cooper, Nash, and Rion) to resolve a perplexing case. Picture the scene: as personnel director, you learn at a top-level staff meeting that the municipality’s Resolving Ethical Dilemmas 151 EXHIBIT 6.4. USE THRESHOLD TEST. If you’re dealing with problems others cause, consider this: A principled yes emerges from considering as many factors as possible. The four listed are the most pertinent. 1. Vulnerability: potential injury, risk to affected party 2. Proximity: know or should know, access, authority, competence, span of control 3. Capability: can help without excessive risk, danger, liability 4. Dependency: no place else to turn, weak or needy with few options or advocates, and low probability of alternative remedies or services 14_967564 ch06.qxd 2/1/05 1:39 PM Page 151 retrenchment plan calls for reorganization and cuts in managerial staff. The tentative blueprint has the city’s Department of Community Services absorbing the small elderly services unit, whose program director, a close friend of your family, is slated for termination. The city manager, whose judgment you respect, mentions the program director’s poor performance and, as the meeting adjourns, reminds everyone that the discussion is confidential as usual. As you leave, you remember that your friend is about to make a substantial down payment on a new home. How would you handle this? Reviewing the decision-making checklist shown in Exhibit 6.1 is a good beginning. By putting ourselves in the personnel director’s role, we can use the checklist to elicit acute considerations. 1. Facts. Does the city manager know about the imminent down payment? (No) Is the city manager aware of the friendship? (Yes) Is your friend aware of prospective termination? (No) Are you sure your friend depends on her municipal salary to finance housing? (Yes) Is information confidential just because the city manager says so? Is a strictly legalistic view right or an excuse? You strike a middle ground by asking yourself, “Is this privileged information, known to me through my job but not known generally?” (Yes) Confidential information, oral or written, generally is that which is not currently a matter of public record or public knowledge. Does your jurisdiction prohibit using public office for anyone’s personal gain and divulging confidential information? (Perhaps) But either way, you know confidentiality is a widely accepted administrative value because federal and many states’ laws and many nonprofits’ standards forbid the use of confidential information. 2. Empathy. How would you feel if financial ruin threatened you? Can you put yourself in the city manager’s shoes? How important is confidentiality in your job? How are other people in the community affected by your helping or not helping your friend? 3. Causes. Thinking about causes helps you define the problem and solutions. Your friend brought her termination on herself through poor performance but not the retrenchment’s coinciding with the new house. Therefore, the problem is not keeping the job but avoiding financial disaster. 4. Stakeholders. Friendship does make ethical claims on you, but the difficult part of public service is that personal friendship is rejected as a legitimate basis of action. It is nontransferable from the personal to the public realm. (See Dobel, 2001, on friendship and public leaders.) You must weigh responsibilities and obligations to all affected parties, including these: the city manager, who unknowingly put you in a difficult position; your family friend; yourself, spouse, and family; the municipal organization, and residents and taxpayers. 5. Objectives. The city manager’s motives are not clear, but because he did not know about the down payment, because confidentiality is standard procedure at these staff 152 The Ethics Challenge in Public Service 14_967564 ch06.qxd 2/1/05 1:39 PM Page 152 meetings, and because you trust his judgment, you assume he intends to act for the best. You even may feel that he knowingly put you on the spot and ought to do something about it. The obligation to prevent injury emerges from checklist items 2 and 3, but what about your objective? Are you acting to protect a friend through special treatment? 6. Possible results. What happens if your friend loses her job and cannot make the mortgage payments? How can you face her accusation of betrayal? What happens if she learns about the retrenchment plan from you, does not buy the house, but then does not lose her job? If you were to betray a trust for friendship’s sake and your friend knows you have other friends, too, can she ever trust you again? Can you be effective in your job without the city manager’s trust? What if everyone disclosed confidential information on whim? Can government function if public trust takes second place to employee needs? To personal friendship? 7. Potential harm. Your friend faces financial harm. The city manager’s trust is at issue. You also realize that the organization is at risk. Do you want to work in an organization that would allow something like this to happen to an employee, even one being fired? Does the city deserve an administration like this? You decide something should be done to prevent injury. 8. Participation; 11. Appearance. Because of the friendship, you conclude it would be best for communication to come from someone else. Given the fact-finding in Exhibit 6.1, you begin to think about bringing the city manager into the picture. 9. Change; 10. Disclosure. You do not see these items as directly applicable to the problem you face. 12. Universality and consistency. At this point you skip to checklist item 12 in Exhibit 6.1 because you realize that you happen to have specific information that warrants consideration on behalf of anyone in a precarious situation, not just your friend. Your intention is not to use privileged information from public office solely to protect a friend. Next, you turn to assess the options stimulated by your thinking: 1. Do nothing, say nothing. 2. Tell your spouse, who is not bound by confidentiality. 3. Tell your friend immediately and directly. 4. Inform the city manager of your friend’s impending down payment. 5. Say nothing, but be prepared to help your friend financially. 6. Casually hint to your friend about impending shake-ups. 7. Leak the retrenchment plan to the media. 8. Tell your friend and other municipal employees that budget cuts mean that a shakeup is imminent and suggest that they avoid new commitments at this time. 9. Say nothing, and help your friend get another job when the time comes. Resolving Ethical Dilemmas 153 14_967564 ch06.qxd 2/1/05 1:39 PM Page 153 Can you stand by and do nothing? Is this your problem? The obligation to keep confidentiality (involving legal compliance, loyalty, and trust) clashes with another top-ranking obligation: to refrain from doing harm. Although you are not directly causing the problem, inaction or silence could result in serious injury. Therefore, your obligation is reduced but still compelling. You may remember the story about George Washington refusing to help a job-seeking friend: “As George Washington, I would do anything in my power for you. As President, I can do nothing” (Bailey, 1964, p. 241). You feel that his obligation of affirmative help was lighter than the one you face, which is the obligation to avoid doing harm. Pragmatism affects your choice among alternatives. Given your municipal salary, the remedy or relief of supporting your friend’s new home is not realistic; financing your own mortgage is hard enough each month, and soon both families would be insolvent. Helping in the job hunt does not mean omitting the friendship or poor performance appraisal from a reference, but you know of many publicly advertised openings, and your expertise can really help a friend here. You can think of no way to sidestep the conflict. Embroiling your spouse unties no ethical knots and is itself unethical. Even a hint or two to your friend (“cutbacks in towns across the region counsel postponing life choices”) abides by the letter more than the spirit of the obligation. Even worse, ignoring other employees possibly in comparable positions results in favored treatment for a friend. Leaking the story as an unidentified source means breaking confidence on a grand scale, plus trying to escape personal responsibility. A general tip-off to employees personally or through the media still breaks confidence, stimulates gossip, and would cause anxiety and distress. Inflicting minor injury on many, including the innocent (those with good job performances), to protect a friend from more serious harm makes you uncomfortable. (See the fourth scenario in Exhibit I.2.) Using the threshold test, you determine that there is a need or problem, you do know something, and you are capable of helping but at either some professional or some personal cost. However, you are not the last resort, and this realization, along with considerations of participation and appearance, lead you to speak with the city manager. You request that he inform your friend and the others targeted in the retrenchment plan. Now comes the hard part. Assume that the city manager, whose judgment you respect, declines to make the retrenchment plan public, citing potential employee demoralization, as well as the need to avoid giving advance notice; affected agencies could then undercut the plan by soliciting citizen opposition. He explains that the decision is still tentative, and he does not feel that widespread employee stress is a reasonable price for your friend’s financial security. He also refuses to give your friend special treatment. Empathically, you reconsider obligations and options from the city manager’s perspective. 154 The Ethics Challenge in Public Service 14_967564 ch06.qxd 2/1/05 1:39 PM Page 154 If you still believe that his response fails to meet the ethical claims that are emerging from your analysis, and you genuinely believe that anyone should be told, not just your friend, then you decide to go farther. You try to persuade the city manager and explain your ethical posture. Your task is to convince him that the information should be disclosed to those at severe risk; the city has a responsibility to employees, too. You point to the prescriptions of your professional code and argue that information deeply affecting people ought to be made public or at least available to directly affected parties, especially when withholding it causes serious harm. If that fails, you acknowledge that the city manager’s ethical preference or lapse does not absolve you of the responsibility that you have already determined is yours. You then reassess capability in terms of excessive risk to yourself (job, integrity, family, friendship, professional identity) and the values and principles associated with all participants, including your good friend, the municipal organization, city residents, the profession, and others. Presuming an authentic assumption of ethical responsibility in this case, you decide that legal compliance and avoidance of a conflict of interest represented by respecting privileged information are preeminent obligations in public service. Your professional code reinforces your commitment to treat confidential information as privileged and given in trust. You decide to say nothing, to help your friend in her job search, and to initiate an outplacement program for all municipal employees. (This last idea illustrates inventive resolution—the moral imagination at work—as discussed in Chapter Seven.) You conclude by asking, “Can I live with this?” You test the emotional components of your decision and assess the likelihood that you will follow through. To find out, you decide to let the decision sit for a time, but you feel pushed by the pace of events. You audit your decision by testing it against the mirror test for integrity, the publicity test for accountability and appearance, and the visceral test for implementation and authenticity, as shown in Exhibit 3.8. Your personal anguish is sincere, and you ask yourself, “Am I right?” Insofar as you attempted to use reasoned, unbiased judgment in an informed, systematic way, yes. Does everyone agree with your resolution? No. That is why this dilemma recurs with different faces and different choices at all levels of public service. Accepting Responsibility (Self-Testing) Given the principle of individual ethical claims, accepting and selecting responsibilities are critical to a public service built on accountability. Moving from the abstract idea to the concrete heightens the noncognitive aspects of decision making. Can you live with this? Take responsibility for it? And the consequences? This applies the visceral test and makes tangible an abstract or general decision. Resolving Ethical Dilemmas 155 14_967564 ch06.qxd 2/1/05 1:39 PM Page 155 The symbolic template shown in Exhibit 3.8 can be laid over decisions as a selftesting device. A streamlined version is shown in Exhibit 6.5. We are not recommending that it be adopted as a public communication or official routine by an agency or office. Rather, public managers can scan the ethical soundness of their decisions against their willingness to sign—as if for the public record—the ethics responsibility statement. No Closure The exercise in Exhibit 6.6 asks you to put it all together. Is this all there is? Of course not. But this book is for public managers, who are not and do not want to be philosophers or theologians. Managers prefer other pursuits, which is easy to understand and respect. Just turn on a faucet, cross a bridge, or buy a home. 156 The Ethics Challenge in Public Service EXHIBIT 6.5. ETHICS RESPONSIBILITY STATEMENT. (Not intended for agency adoption) I take personal responsibility for making this recommendation or decision in the public interest, with consideration given to future generations. _______________________ _______________________ (signed) (date) I am prepared to explain this recommendation or decision publicly, to the press, and to my agency, service recipients, and collaborators (if a public-private partnership, interjurisdictional project, or government-nonprofit project). _______________________ _______________________ (signed) (date) I take personal responsibility for making this recommendation or decision in an ethical manner. _______________________ _______________________ (signed) (date) 14_967564 ch06.qxd 2/1/05 1:39 PM Page 156 Resolving Ethical Dilemmas 157 EXHIBIT 6.6. TEST ETHICAL DECISIONS. Impelled by severe financial straits, the municipal council agonizes and by majority vote stops funding the community alliance that runs the homeless shelter. You are sincerely distressed on three counts: (1) the homeless have nowhere else to turn; (2) you believe you are in public service to help people, not hurt them, and (3) the administration publicly is committed to being responsive to community projects like the shelter. As a public leader, it is your job to see that council decisions are implemented, but you think this one is a disgrace. How should you handle this? Mirror Test for Publicity/Mama Test Visceral Test for Integrity for Accountability, Implementation, Appearance Authenticity What kind of person Do I want to read about Am I willing and likely do I admire? this in the newspaper? to follow through? Want to be? Tell my family? Can I live with this? WHY? Ethical reasoning. What values or principles are at stake? What claims? (Claims include roles, values and virtues, principles and duties, and affected parties and interests.) Try accommodating all concerns in a creative proposal. What resolution produces the best mix? If you can’t do it all, aim at minimizing damage to competing claims and responsibilities. ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Do you take public responsibility for this decision? Signed ___________________________ Date _______________ 14_967564 ch06.qxd 2/1/05 1:39 PM Page 157 Why not adopt a few authoritative rules and settle the problems once and for all? Because simplistic rules are no solution in our complicated world and are not the point anyway. Judgment and action are. Not everything can or should be reduced to a snappy slogan on a bumper sticker or a twenty-second sound bite. The polar extreme of hairsplitting and quibbling over exquisite niceties does not help managers either. Remember Lewis Carroll’s Through the Looking Glass? Tweedledee says, “Contrariwise . . . if it was, it might be; and if it were so, it would be: but as it isn’t, it ain’t. That’s logic.” After thousands of years of discussion and tons of paper, closure is improbable— and impossibly arrogant. Then, too, anyone promising the last word on the subject rejects the challenging future anticipated for public service. Case: A Late Night Surprise Dennis, the city manager of a financially strapped municipality, is working uncharacteristically late at night. The offices are empty and quiet as he is leaving. He notices a sliver of light coming from the door of the new budget director, Susan. He decides to stop in and praise her for her excellent report in which she discovered errors that will save the city millions of dollars, projecting for the first time in many years a budget surplus. As he approaches her office, he can see through the few inches the door is open that she is in a passionate embrace with Gary, the assistant city manager. Employment policy strictly forbids dating between employees, threatening dismissal to those who do. Dennis’s code of ethics requires him to enforce this policy, yet at the same time he does not want to lose either or both of his valuable employees. It would be difficult, if not impossible, to bring in someone else with their experience and credentials for the amount of money the city is able to pay. What should Dennis do? Should he report Susan and Gary, in accordance with policy? Should he overlook the situation, believing the city will be best served in the long run? Should he speak to each of them and threaten to tell if they don’t end the relationship? Readers’ Responses The city manager, Dennis, “should look outside of the current policy box and analyze all of his alternatives. If legislating morality worked there would be no need for vice squads. In my opinion, you should not come between two people who are in love or are falling in love even if they happen to be public officials. Instead, if he feels he needs 158 The Ethics Challenge in Public Service Reprinted with revision by permission of the American Society for Public Administration. Case by Carole L. Jurkiewiez. PA Times, “Ethics Moment” column, edited by Don Menzel, Mar. 1998. Follow-up material, Apr. and Aug. 1998. Internet [http://www3.niu.edu/~tp0dcm/aspa/ethicsec/ moments/moments.htm]. Based on an actual case. 14_967564 ch06.qxd 2/1/05 1:39 PM Page 158 to do something about Susan and Gary, he should work to change the policy prohibiting dating between employees. Is an embrace in a public office after hours in the bowels of a government building considered dating or is dating seen as an open affair in public? Either way, who cares? The ethical thing to do is to have the guts to eliminate a staid and outdated policy. Ethics is a matter of judgment about doing the right thing and then having the guts to take responsibility for your actions and standing behind your decisions.” “The assistant city manager and finance director are key members of the city’s executive management team. They and the city council set the tone for city employees and the public’s perception of what behavior standards are acceptable for the organization.” “The city manager must, at a minimum, notify the assistant and the finance director in writing that the behavior will cease immediately and result in termination if it occurs again. The notice and counseling should focus on the employees’ excellent work records and [their] value to the city. But their responsibility for setting behavior standards takes priority over their administrative competencies.” “It is too easy for the city manager to overlook behavior by the executive team that is not tolerated for line employees. Being ‘valuable’ to the organization should not be a license to deviate from behavior standards. If anything, they should be held to a higher level since they set the standard for other employees and send a message to the employees about what is acceptable. The manager needs to think about what type of message he wants to send down the line!” “The manager’s alternative in this case is to officially authorize everyone to play ‘Bob and Carol, Ted and Alice’.” Managing Romance in the Office Dennis did not speak to them directly. He used the next staff meeting (with Susan and Gary in attendance) as an opportunity to discuss the policy and introduced a hypothetical situation for discussion that closely mirrored the one he was in. After discussion about alternative approaches to handling the situation, the staff agreed that they would tell if in the same position. Business went on as usual, and he never encountered Susan and Gary in a romantic embrace again. He doesn’t know if they understood the veiled warning he was trying to give them or they simply ended the relationship. He’s generally happy about the outcome. Reader’s Response “This solution . . . has several problems. First, the leveling of discipline (warnings) upon the whole to reach the few may be a diplomatic and perhaps innovative solution, but it may open up the manager to unexpected consequences and organizational resentment, thereby impacting the agency’s morale. ‘It occurs to me that the age-old management tool of bringing the offenders to task, given the existence of the rule Resolving Ethical Dilemmas 159 14_967564 ch06.qxd 2/1/05 1:39 PM Page 159 forbidding dating, would be to present his hypothetical case in private to the offenders.’ “Second, honesty or the fear of confronting issues head on may be problematic in this case. Using my approach leaves no doubt in anyone’s mind about appropriate behaviors and would have involved as few people as possible in resolving a disciplinary issue. “Regardless of which approach might be taken, consider what might happen to employee morale should the following also have occurred: the city manager was not the only late-night worker to observe the passionate embrace, and the word gets around about the romance [and] neither of the top managers are fired.” ◆◆◆ Discussion Questions 1. What should Dennis do? What should Dennis think about? 2. Try using the checklist in Exhibit 6.1 and decision-making model in Figure 6.1 to work through this case and evaluate the proposed alternative

The Ethics Challenge in Public Service

A Problem-Solving Guide SECOND EDITION Carol W. Lewis Stuart C. Gilman

Copyright © 2005 by John Wiley & Sons, Inc. All rights reserved. Published by Jossey-Bass A Wiley Imprint 989 Market Street, San Francisco, CA 94103-1741 www.josseybass.com

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