Business Ethics
Public Service Ethics
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Oct 3, 2003, 18:21

TI Source Book 2000 Chapter 20: Public Service Ethics, Monitoring Assets and Integrity Testing The government either has integrity or it does not. You can't just have a little integrity. An administration stands or falls with the integrity of the government; any diminution of the integrity of the government means that the government loses the confidence of the public. And without the confidence of the public, democracy cannot work. Then there is no more democracy. That is a frightening picture. -- Catherine I. Dales, Minister of the Interior, in an address to the Annual Conference of the Union of Dutch Local Authorities, June 1992.

Increasingly, the need to foster and sustain high levels of ethics in the public sector has comeinto focus. There is, almost universally, a lurking suspicion in many countries that public servants(both members of the public service and their political masters) have been lining theirpockets at the public's expense, and calls for the monitoring of assets of senior public sectordecision-makers in particular, are now heard on all continents. These suspicions are fuelled byscandals with serious moral implications, revealed almost daily, and in developed countries noless than the developing.

In developed countries, pressures on the public service come from varied quarters. Increasingprivatisation and the contracting out of traditional government functions; the devolvement ofresponsibility, including financial responsibility, within public service organisations; greaterpressures for openness and more intensive media scrutiny of the public sector; a greater andgrowing intensity of lobbying by those anxious to capture government business; and anincreased willingness on the part of members of the public to complain when the quality ofservice is poor--all these have contributed to this increase in awareness of the need to takesteps to bolster the ethical basis on which the public service functions.

Recent public management reforms involving greater devolution of responsibility for publicservants and new forms of delivery of public services, have challenged traditional values inthe public service. With more senior staff on contract, and other changes in the public serviceenvironment, qualities of loyalty can be more elusive. Ethics may not have changed, but inmanaging a modern civil service, areas of discretion in many areas have widened.^[1]

In developing countries, and in countries in transition, the problem is all the greater. There,the public service has tended to be dysfunctional to begin with, and not infrequently deeplyflawed by systemic corruption. There would be cause enough to justify a proactive approachon the ethical front, even without the additional pressures created by attempts to "modernise"a public service that was not performing adequately even under theold rules.^[2]

Underpinning concern in all countries is an increasing suspicion--frequentlywithout more than anecdotal evidence to support it--that standards in publiclife are declining. This suspicion may be fuelled, at least in developedcountries, by a change in the way the public views public administration.What was once a purely administrative relationship has been transformedinto a commercial one: public administration has come to be viewed as aproducer and provider of certain goods and services, with the citizens transformedinto customers. In so doing, the spotlight has been cast on aspectssuch as efficiency, products and quality, perhaps diverting attention awayfrom matters less capable of measurement, such as attitudes and convictions.^[3]Moreover, public servants live in the real world, and the changing attitudesin their own communities, and particularly any growing ambivalence as towhat is, and what is not, acceptable conduct, serves only to make the task ofethics management both more difficult and more necessary.

Sidebar:Uncoordinated, unsystematic, unilateral, non-participatory...

Why an ethics-based approach?

Integrity can come under pressure in a variety of ways, not only stemmingfrom straightforward corruption but also, and above all, from an improperuse of power. And the "improper use of power is a broad concept, one thatembraces degeneration, decay and erosion of standards of conduct...[escalat-ing]into fraud and corruption."^[4]

Preventing misconduct is thus as complex as the phenomenon of misconductitself. Among the integrated mechanisms needed for success are sound ethicsmanagement systems. This is as true for the public sector as it is for the private.

Most people would prefer to be, and to be seen to be, honest and respected fortheir personal integrity by themselves no less than by their family and friends.If this assumption is correct, then it provides the starting point for an ethicsmanagement system that has the potential to make serious inroads into ethicalmisconduct--bearing in mind the fact that transgressions can be as muchthe result of misunderstandings and misperceptions as of blatant illegality.

An ethics based approach is essentially preventative, and so a much moreprofitable route than one which relies on the big stick of enforcement andprosecution. A well-motivated public service is much to be preferred to onewhich operates in fear and apprehension--and where any exercise of personalinitiative, however well-intended, invites investigation and possible censure.

Such a course can also deal more appropriately with the position in whichpublic servants can find themselves in some developing countries, where traditionalsocieties expect those in positions of power to use it to promote theinterests of their family or clan, rather than the wider public interest.

Two African commentators have noted that much of the research into thecauses of administrative corruption on their continent has focused on thepersistence of traditional values and customs (usually forms of nepotism)which conflict with the requirements of modern bureaucracies. They observethat African bureaucrats (as in other developing countries) frequently seemto be faced by two sets of values.

Although the public official has been trained in the norms of modern organisations,the weight of tradition is such that even when the bureaucrat himselfdoes not profess a public belief in traditional values, he is still subject toconstant pressure to give in to them. For example, in order to avoid accusationsof ingratitude, politicians and top civil servants must surround themselveswith members of their clan as well as with their more immediate relatives.This situation leads some civil servants to experience difficulty inadjusting to the impersonal, disinterested, legalistic requisites of the modernbureaucracy.^[5]Clearly, an ethics-based route is the appropriate one.

Sidebar:Public service organisations are different

It is important, too, that the ethical code is tailored to the conditions of thesociety it is designed to serve. While it may make sense in a developed countryto preclude a public official from engaging in private sector activity, insome developing countries this is wholly unrealistic. Private sector activity ofsome sort can be a necessity where public sector remuneration is very low.The challenge then becomes one of how to manage effectively a situationwhere public officials are frequently engaged in private sector activities.

As one writer on Africa has commented:

Ethical Codes must be of such a nature that leaders are not turned into poverty-strickenmissionaries and as poor as Church mice, nor should they be so harsh andimpracticable as to frighten would-be leaders from assuming leadership roles.^[6]

The essential features of an effective ethics management system

Increased concern about corruption and the decline of confidence in public administration hasprompted many governments to review their approaches to ethical conduct. To assist theseprocesses, a set of principles has been developed by the OECD to help countries review theinstitutions, systems and mechanisms they have for promoting public service ethics.^[7]

The principles can be adapted to national conditions, and countries can find their own waysto balance the various aspirational and compliance elements so as to arrive at an effectiveframework that suits their own circumstances. The principles are, of course, not sufficient inthemselves but provide a means for integrating ethics management into the broader publicmanagement environment.

1. Ethical standards for public service should be clear.

   Public servants need to know the basic principles and standards they are expected to apply to their work and where the boundaries of acceptable behaviour lie.

   A concise, well-publicised statement of core ethical standards and principles that guide public service, for example in the form of a code of conduct, can accomplish this by creating a shared understanding across government and within the broader community.

   [Note: ^[8] The emphasis here is on broad statements of principle. The statement should not be written in detail or resemble legislation, or simply be a list of prohibitions and restrictions. The core values should be the focus. These are higher values than the minimum and minimal thresholds prescribe, for example, by the criminal law. There is scope here for aspirations. Codes of conduct are discussed below, and in the context of the private sector, in the chapter entitled The Private Corporate Sector.]

2. Ethical standards should be reflected in the legal framework.

   The legal framework is the basis for communicating the minimum obligatory standards and principles of behaviour for every public servant. Laws and regulations could state the fundamental values of public service and should provide the framework for guidance, investigation, disciplinary action and prosecution.

   [Note: This is the converse of the above. When legislating, the aspirational aspects of a code can be stated to reinforce the values being protected by the laws and regulations which follow.]

3. Ethical guidance should be available to public servants

   Professional socialization should contribute to the development of the necessary judgement and skills enabling public servants to apply ethical principles in concrete circumstances. Training facilitates ethics awareness and can develop essential skills for ethical analysis and moral reasoning. Impartial advice can help create an environment in which public servants are more willing to confront and resolve ethical tensions and problems. Guidance and internal consultation mechanisms should be made available to help public servants apply basic ethical standards in the workplace.

   [Note: A code without a mentor or an adviser is a rudderless boat adrift on a tempestuous ocean. Public servants need to know where, and to whom to turn, when they are confronted with potential difficulties. These need to be persons in whom they have trust, and in whom they can confide in confidence.]

4. Public servants should know their rights and obligations when exposing wrongdoing.

   Public servants need to know what their rights and obligations are in terms of exposing actual or suspected wrongdoing within the public service. These should include clear rules and procedures for officials to follow, and a formal chain of responsibility. Public servants also need to know what protection will be available to them in cases of exposing wrongdoing.

   [Note: A core value of public service is commitment to the law and to the Rule of Law. This is of higher value than any duty to superiors, colleagues or subordinates, and likewise it overrides any claim to loyalty on the part of the political party in power.
   The subject of "whistleblowing" is discussed in the chapter on Giving Citizens a Voice. It should never be necessary, other than in the most exceptional of cases, for a public servant to feel compelled to go outside the system in order to draw attention to wrongdoing. This is an area, too, in which the private sector is taking an increased interest. Although previously, senior managers would prefer not to know about problems, the more progressive managers of today are eager to ensure that staff feel comfortable in raising their concerns, so that matters can be put to rights, or mistaken impressions corrected.
   It is therefore important that official channels for complaint be trustworthy (so that staff can use them without feeling exposed to reprisals by more senior staff on whom they may be reporting) and effective (so that staff will use them confident in the belief that their complaints will be taken seriously, and not just ignored).]

5. Political commitment to ethics should reinforce the ethical conduct of public servants

   Political leaders are responsible for maintaining a high standard of propriety in the discharge of their official duties. Their commitment is demonstrated by example and by taking action that is only available at the political level, for instance by creating legislative and institutional arrangements that reinforce ethical behaviour and create sanctions against wrongdoing, by providing adequate support and resources for ethics-related activities throughout government and by avoiding the exploitation of ethics rules and laws for political purposes.

   [Note: Unless political leaders demonstrate high standards they have no moral authority upon which to draw when they wish to reprimand others who step out of line. It is a truism that "the fish rots from the head", and experience certainly suggests that where the behaviour of superiors is seen to be incorrect, similar indiscretion is fostered among subordinates. It is important that political leaders clearly articulate their unqualified support for, and insistence upon, high ethical standards.]

6. The decision-making process should be transparent and open to scrutiny

   The public has a right to know how public institutions apply the power and resources entrusted to them. Public scrutiny should be facilitated by transparent and democratic processes, oversight by the legislature and access to public information. Transparency should be further enhanced by measures such as disclosure systems and recognition of the role of an active and independent media.

   [Note: A corrupt and/or inefficient administration will wish to shield its shortcomings through denying access to information. The provision of channels for information, and rights of access, are important antidotes to this malaise. The greater the transparency, the fewer the shadows.]

7. There should be clear guidelines for interaction between the public and private sectors.

   Clear rules defining ethical standards should guide the behaviour of public servants in dealing with the private sector, for example regarding public procurement, outsourcing or public employment conditions. Increasing interaction between the public and private sectors demands that more attention should be placed on public service values and requiring external partners to respect those same values.

   [Note: Much of the "grand corruption" that mars today's administrations around the world takes place on the interface between the public and the private sectors. Special attention is given to this in the chapter entitled Public Procurement: Where the Public and Private Sectors Do Business. The question of respect for shared values is not exclusive to the public service. Leading players in the private sector, too, are increasingly concerned to ensure that its own private sector partners respect and share the core business principles to which they subscribe.]

8. Managers should demonstrate and promote ethical conduct.

   An organisational environment where high standards of conduct are encouraged by providing appropriate incentives for ethical behaviour, such as adequate working conditions and effective performance assessment, has a direct impact on the daily practice of public service values and ethical standards. Managers have an important role in this regard by providing consistent leadership and serving as role models in terms of ethics and conduct in their professional relationship with political leaders, other public servants and citizens.

   [Note: This principle reflects, in the context of managers, the same concerns as are contained in Principle 5, above.]

9. Management policies, procedures and practices should promote ethical conduct.

   Management policies and practices should demonstrate an organisation's commitment to ethical standards. It is not sufficient for governments to have only rule-based or compliance- based structures. Compliance systems alone can inadvertently encourage some public servants simply to function on the edge of misconduct, arguing that if they are not violating the law they are acting ethically. Government policy should not only delineate the minimal standards below which a government official's actions will not be tolerated, but also clearly articulate a set of public service values that employees should aspire to.

   [Note: This Principle stresses the importance of the aspirational aspects of ethical conduct, and the need to avoid a minimalist, rule-bound approach under which everything which is not expressly forbidden is implicitly allowed.]

10. Public service conditions and management of human resources should promote ethical conduct.

    Public service employment conditions, such as career prospects, personal development, adequate remuneration and human resource management policies should create an environment conducive to ethical behaviour. Using basic principles, such as merit, consistently in the daily process of recruitment and promotion helps operationalise integrity in the public service.

    [Note: Ethical conduct can be fostered, just as unethical conduct can be contagious. If nepotism, favouritism and the selective application and waiver of rules are taking place, the standards of all can be expected to come under pressure.]

11. Adequate accountability mechanisms should be in place within the public service.

    Public servants should be accountable for their actions to their superiors and, more broadly, to the public. Accountability should focus both on compliance with rules and ethical principles and on achievement of results. Accountability mechanisms can be internal to an agency as well as government-wide, or can be provided by civil society. Mechanisms promoting accountability can be designed to provide adequate controls while allowing for appropriately flexible management.

    [Note: Corruption and inefficiency flourish in an environment devoid of accountability. In this regard, the Office of Ombudsman has a particularly potent role to play.]

12. Appropriate procedures and sanctions should exist to deal with misconduct.

    Mechanisms for the detection and independent investigation of wrongdoing such as corruption are a necessary part of an ethics infrastructure. It is necessary to have reliable procedures and resources for monitoring, reporting and investigating breaches of public service rules, as well as commensurate administrative or disciplinary sanctions to discourage misconduct. Managers should exercise appropriate judgement in using these mechanisms when actions need to be taken.

    [Note: Mechanisms need to be fair and trustworthy. They should protect the innocent and the naïve, just as they should detect and publish the culpable. Penalties, where applicable, should be proportionate and should be consistently applied. A sanctions regime which is idiosyncratic and viewed as untrustworthy by staff can seriously undermine efforts to raise and to protect ethical standards generally.]

Creating codes of conduct in the public sector

Codes of conduct in the public sector, as they are in the private sector and in the professions,are playing an ever-increasing part in the development of national integrity systems. Theyafford a way in which to develop preventive strategies.^[9]Obviously, if officials act properly andwith understanding from the outset, any problems will be minimised.

However, as we have noted, public sector codes tend to be drafted at the top, by senior publicofficials or managers, and then passed down to more junior staff. All too seldom are thestaff at all levels actively involved in the preparation of a code. The result is not only does thecode fail to reflect adequately the situations and aspirations of staff at all levels, but there isalso a complete absence of ownership. In some respects, the way a code is prepared is just asimportant as the code itself.

It is also important that a code be aspirational in tone, at least in part, rather than be simplya long list of prohibited actions. This is to give it a positive character, rather than the somewhatforbidding appearance of a criminal statute.

Once a code is finalised, many regard the process as being at an end. However, to be effective,codes should be publicised throughout an organisation and its external stakeholders (includingthe general public), so that everyone is aware of its contents. More than this, there shouldbe regular training, so that groups of officials come together from time to time to talk throughdilemmas drawn from real life.

The interpretation of the code, too, is important. It should protect the staff who comply with it.For this reason, an effective code will generally have designated a source of advice and guidancefor staff who have difficulty in determining what their position is. Even if the advice theofficial is given turns out to be misconceived, where full disclosure of relevant facts has beenmade and where the advice has been followed, he or she should be regarded as blameless.

An 'Office of Government Ethics'--the US approach ^[10]

To be effective, over-all responsibility for public ethics development and training must bevested clearly in a particular agency of government. Frequently this is within the Ministry forGovernment Administration.

However, in a novel experiment (and in the wake of the Watergate scandal) the United Statesin 1978 created the Office of Government Ethics (OGE).^[11]

The OGE provides policy leadership and direction for the ethics programme in the Executivebranch. This system is a decentralised one, with each department or agency having responsibilityfor the management of its own ethics programme. This responsibility rests with the headof each agency who, in turn, designates a Designated Agency Ethics Official or "DAEO" whois responsible for the day-today management of the ethics programme.

The OGE has issued a uniform set of Standards of Ethical Conduct for Employees of the ExecutiveBranch that apply to all officers and employees in Executive branch agencies and departments.These regulations contain a statement of fourteen general principles that should guidethe conduct of Federal employees. Central to these principles is the concept that public serviceis a public trust. Federal employees must be impartial in their actions and not use publicoffice for private gain. These regulations also contain specific standards that provide detailedguidance in a number of areas: gifts from outside sources, gifts between employees, conflictingfinancial interests, impartiality, seeking employment, misuse of position and outside activities.The rules are enforced through the normal disciplinary process.

The Office has also implemented uniform systems of financial disclosure. These systems, publicand confidential, are enforced throughout all agencies and are subject to periodic reviewby the OGE.

The OGE maintains a close liaison with the ethics officials at the 129 agency ethics officesthroughout the Executive branch through its desk officer system. Each OGE desk officer has aportfolio of client agencies that he or she serves by providing information, advice and programmeassistance. The OGE also regularly conducts reviews of agency ethics programmes andmakes appropriate recommendations for improvement of financial disclosure systems, counsellingand advice, training and other programme matters.

The OGE regularly conducts training workshops for ethics officials both in Washington, DCand in cities throughout the United States. The OGE has established an ethics information centreat its office that makes educational materials available to Executive branch agencies. It hasa newsletter and it holds an annual ethics conference to exchange information and build astrong ethics community. An electronic bulletin board provides an abundance of informationto the ethics community in a fast, convenient and direct way.

At the same time, individual agencies may supplement the Executive branch-wide standardswith limited rules, tailored to meet specific agency needs. Areas addressed in supplementalagency standards include prohibited financial interests, prohibited outside activities and priorapproval for outside activities.

In recent years a number of other countries have followed the US lead, including Argentinaand South Africa.

The Queensland approach ^[12]

The Public Service Act 1996 in Queensland underscores the traditional expectation of thestate's Ministers, namely that that professional public servants will be apolitical, and responsiveto the Government of the day and sensitive to its programme objectives. A decision toreinforce the "career service" aspects of employment in the Public Service was articulated in1997, and is supported by employment, deployment and appeals provisions in the Act.

Separately, the framework of values which defines Public Service integrity--professionalism,ethicality (for example, personally disinterested conduct in office), and service to the community--are defined by the Public Sector Ethics Act, enacted in 1994.

Queensland is the only jurisdiction in Australia, and one of few in the world, to have enactedspecific legislation for ethical conduct in public management. The Public Sector Ethics Act1994, and its companion piece, the Whistleblowers Protection Act 1994, are Australia's firstexamples of specific ethics legislation which aim to ensure high professional standards in thepublic sector by requiring Chief Executives of Departments to develop codes, to have themaccessible to staff and to the public, to institute training, and to include an implementationstatement in the department's annual report. The legislation clearly acknowledges the necessityfor public management to be ethical, professional, and accountable.^[13]

The Public Sector Ethics Act explicitly articulates a set of professional expectations--"socialisation"values--which had been in Queensland, until 1988, the subject of convention alone.Both Acts were responses to an explicit demand by employees and managers for greater certaintyabout what was expected of them in the workplace. This demand was driven by everyday concerns about fairness, equity, responsiveness, and integrity, and by community expectationsthat official wrongdoing would be effectively countered by the system itself.

The Public Sector Ethics Act 1994 (Queensland)

The Act, as passed, declares five principles to be the basis of "Ethics Obligations", also specifiedby the Act, and required to be the basis of the agency-specific Codes of Conduct whichindividual public sector agencies are required to develop, in consultation with affected staffand the relevant community interests.

The framework values are:

• respect for the law and the system of (parliamentary) government;
• respect for persons;
• integrity;
• diligence; and,
• economy and efficiency.^[14]

The obligation of integrity is expressed in the following terms:

Integrity

In recognition that public office involves a public trust, a public official should seek:

1. to maintain and enhance public confidence in the integrity of public administration; and
2. to advance the common good of the community the official serves.

Having regard to [that obligation], a public official:

1. should not improperly use his or her official powers or position, or allow them to be improperly used; and
2. should ensure that any conflict that may arise between the official's personal interests and official duties is resolved in favour of the public interest; and
3. should disclose fraud, corruption, and maladministration of which the official becomes aware. ^[15]

In practice, this obligation requires that officials should, for example, not disclose officialinformation improperly; should not abuse the powers or resources available to them as officials;should avoid any conflict between personal interest and official duties; or where a conflictcannot be avoided, should resolve such a conflict in favour of the public interest.

The obligation also requires officials to avoid conduct which could undermine public confidencein the government or the system of public administration, for example, failure to discloseto a relevant authority known fraudulent or corrupt conduct, or "maladministration" byanother official.

The obligation of diligence is defined thus:

Diligence

In performing his or her official duties, the official should exercise proper diligence, care and attention, and should seek to achieve high standards of public administration. ^[16]

In practice, this obligation requires that officials should, for example, provide "a fair day's work",observe the procedural fairness ("natural justice") requirements of good administrative decision-making, make all reasonable efforts to provide high standards of service to clients, act in accordancewith relevant "duty of care" requirements, avoid negligent conduct, provide expert andcomprehensive advice to Ministers, and seek to maintain high standards of public administration.

There is, too, the obligation of economy and efficiency:

In performing his or her official duties, a public official should ensure that publicresources are not wasted, abused, or used improperly or extravagantly.^[17]

In practice, this obligation requires that officials should manage all forms of public resources(for example human, material, and financial resources, intellectual property and information)in the interests of safeguarding public assets and revenues and ensuring efficient programmesand service-delivery.

Chief Executives' Obligations

The Ethics Act requires Chief Executives of public sector agencies to ensure that the Act isimplemented in their agency, that training in ethics is undertaken, and, of signal importance,that the agency's "administrative practices and procedures" are consistent with the Act andwith the agency's Code of Conduct.

Failure to do so could result in sanctions under the Chief Executive's contract of employment,or (potentially) in a private legal action for compensation resulting from breach of statutoryduty. Such an action might arise--in an ethics context--where the interests of a citizen orclient of the agency suffered damage from the foreseeable and preventable unethical conductof an employee--for example, in a contract negotiation or tendering process involving theChief Executive's agency.

The Role of the Public Official

Clearly, the legislation establishes a "role ethic" based on a traditional version of the role ofthe appointed public official in a system of responsible Parliamentary Government.

The Guidelines issued to Queensland public sector agencies in 1995 went further in reinforcingthis traditional view of the appointed official's responsibility and accountability, and theofficial's relationship to delegated power and the community at large. The Guidelines includethe following statement:

Public employment involves a position of trust.
The standards of conduct which may be expected of public officials at all levels are therefore a matter for legitimate and continuing concern by the Government of the day, public sector organisations, and the community.
Public officials control, in various ways, the use of financial and other valuable resources provided by the community. The use, and misuse, of those resources raises important questions of professional ethics for administrators.
It is similarly expected that those public officials who control the financial and other resources provided by the community have an ethical obligation to ensure that those resources are used efficiently and appropriately.

Such a traditional view of the role of the public official is not at odds with the modern focusof the public service on customers, efficient service delivery, accountability, and on effectiverisk assessment and risk management. However, ethical management is more challenging intoday's world.

As the OECD's Public Management Service (PUMA) observed, the increasing interactionbetween the public and private sectors is:

...creating more situations where existing rules and guidance on the conduct of public officials may be inadequate, for example in relation to possible conflicts of interest. They also raise more ethical dilemmas for public officials, where guidelines and rules cannot provide all the answers and officials may need to be able to make sound ethical judgements. There are, moreover, concerns that with the blurring of boundaries between the public and private sectors, essential public sector values may be diluted, to the detriment of the public interest. ^[18]

Rather than blurring the distinctions which exist, the Queensland Legislature has set down a'benchmark' position in relation to public sector integrity, to highlight what is at issue whenpublic and private sector value systems interact.

The Canadian approach

In Canada, a number of Provinces--and the Federal government--have introduced posts toprovide guidance on ethical issues to parliamentarians and senior public officials. These positionsare variously titled--"Ethics Commissioner" (Alberta), "Integrity Commissioner"(Ontario); "Conflict of Interest Commissioner" (British Columbia, Saskatchewan, Nova Scotia,New Brunswick, Northwest Territories and Yukon), "Commissioner of Members' Interests (New-foundland)or "Ethics Counsellor" (Federal Government).^[19]

These Offices all recognise that, in the area of ethics, there are two major risks when relyingwholly on a strictly legalistic system. Firstly, public office holders can often forget what trulyethical conduct actually is in the real world of public life, and instead defend themselves bydwelling on what they understand to be the legal technicalities of words and concepts.

Secondly, rules are often extremely detailed about matters that should be self-evident to anyonewith sound moral judgement, leaving the average citizen with the impression that thoseappointed to public life have no moral sense whatsoever. When this happens, it can do moreto corrode public confidence than enhance it.

Canada's Federal government has taken an approach that assumes that public office holdersdo want to take ethical actions. It assumes they do want to earn a higher level of respectamong citizens. For this reason it has chosen not to take the other major approach to ethics -thatis, rigidly codifying ethical behaviour, usually through a series of "Thou shalt not's."^[20]

The Canadian approach to building and managing an ethics structure turns on avoiding possibilitiesfor conflict of interest well before the fact. It focuses on working with people, basedon the assumption that they do want to do the right thing.

The Federal Ethics Counsellor's Office deals with potential conflicts of interest and other ethicalissues for those most likely to be able to influence critical decisions in the Federal government. This covers all members of the Federal Cabinet, including the Prime Minister. It coverstheir spouses and dependent children; members of Ministers' political staff; and senior officialsin the Federal Public Service. The Office handles the monitoring of the assets, incomesand liabilities of those it oversees.

The Office is also responsible for the Lobbyists Registration Act and the Lobbyists' Code ofConduct.^[21]These are designed to bring a level of openness to lobbying activities and ensurestrong professional standards for the people involved in that work.

The Office, of course, does not replace the role of the police, prosecutors and judges when itcomes to suspected breaches of the criminal law. Rather it deals with the grey area of situationsthat could realistically appear wrong to citizens, without ever being illegal.^[22]

Its role is designed to provide advice and counsel to those in government, not to act as prosecutor,judge and jury. In practice, the Office works closely with those coveredby the Code. They come with questions about how a given asset or interestshould be treated, and the Office offers advice. It is also asked by thePrime Minister to investigate and comment on specific issues as and whenthese arise.

Does this seem to work? The present office-holder believes it does:

"Does this work? I would say it does. The people that I deal with recognise that making the right decisions helps to ensure their longterm political health. They recognise that Canadians expect high standards of conduct and rightly so. They have generally gone out of their way to meet those standards." ^[23]

Sidebar:Bulgarian parliament approves law to fight corruption among officials

Monitoring of assets, incomes and liabilities

As suspicions of public officials has grown--fed by revelations of the ways some have lootedtheir countries treasuries or suspicions about the origins of funds for the cars they drive--so,too, has grown the belief that the assets, incomes and liabilities of public officials ought to bemonitored. In the past, in developed countries it was considered sufficient for cabinet ministerssimply to disclose their investments to the head of government on an informal basis. Intoday's somewhat more suspicious world, the head of government himself or herself is, asoften as not, an object of suspicion. Something more rigorous seems to be called for, and withan independent agency to monitor the position if the returns were not to be open entirely tothe public.

In many parts of the world, the argument is heard that one of the key instruments for maintainingintegrity in the public service should be the periodic completion, by all those in positionsof influence, of returns of their and their immediate family members' incomes, assets andliabilities.

Although the disclosure of assets and income will, of course, not be accurately completed bythose who are taking bribes, it is thought that the requirement that they formally record theirfinancial positions, lays an important building block for any subsequent prosecution. It would,for example, preclude them from suggesting that any later wealth that had not been disclosedwas, in fact, acquired legitimately.

Disclosure, the argument runs, should also extend to a certain post-service period, as a deterrentto the receipt of corrupt payments after retirement. Studies have suggested that it isunlikely that corrupt payments are made more than three years after a person has retired.

But does it work? Sri Lanka is one of a number of countries which has tried to combat corruptionthrough the ordinary criminal law, but found it inadequate. As the Attorney-Generalof Sri Lanka told Commonwealth Law Ministers in 1990, this approach was found to be "insufficientlycomprehensive." Sri Lanka therefore made it compulsory for all public servants andall those in public office, including politicians, to make a declaration of assets upon assumptionof office and from time to time thereafter to make fresh declarations. Once the declarationswere made, they were available to the Attorney-General, or to any member of the publicon payment of the requisite fee. The question of gifts and hospitality was also controlled.^[24]

Sadly, if public confidence and newspaper headlines in Colombo are anything to go by, theproblem is, if anything, more severe than it was ten years ago. It is true that monitoring canbe intrusive, and affect the privacy of an individual, especially if it extends beyond public servantsto members of their immediate household. There are traditionalists who argue againstdisclosure rules and prefer to rely on the Westminster tradition of informal, largely unwrittenrules. These rules were believed to guide an elite in living up to high ethical standards--standardshigher and more flexible than the demands of black-letter rules. However, all the evidencetoday points to the utter inadequacy of this informal system. Corruption today can onlybe reduced if it is made a high risk and a low profit undertaking. Informal rules do not worknor do they wash with the public.^[25]

Having accepted the argument in favour of disclosure, several questions follow: To whomshould disclosure be made? What matters should be included? How wide should coverage ofmembers of the household be? How often should disclosures be made? What access should themedia and members of the public have to these declarations? And, in the case of career civilservants, what levels of seniority must be required to submit to this process? There are no simpleanswers to any of these questions.

The tricky part of this process is not so much deciding on the categories of assets to be disclosed,and the categories of the officials who should be making disclosure, but rather ondeciding the extent to which there should be public access to the declarations. The litmus testmust be whatever is needed to achieve public peace of mind--not whatever is wanted by thenoisiest of the opponents of disclosure. Nor are matters always as simple as they may seem. AMinister of Finance from Colombia has been quoted as saying that for a politician to make hisor her wealth known to the public would be an open invitation to kidnappers to move in andclaim the sums disclosed as a ransom.

In Australia, a system whereby officials make written disclosures to the head of their departmentannually has been seen as being effective. These are not made public. Similar disclosuresare managed by the ethics offices in Canada, referred to above. However, in most countries ithas been the practice to introduce wholly sham arrangements for these sorts of disclosures.

In Nigeria, the Code of Conduct Commission was empowered, from 1979 onwards, to requirethe filing of returns by all public officials. However, they had neither the resources nor thelegal powers to actually check the contents of any of these. As a consequence, throughout aprolonged period of looting by public officials, the only prosecutions ever mounted wereagainst public officials who failed to file an annual return--not for filing a false one. In Tanzania,the sleight of the law draftsman's hand was such that, although the legislation appearedto require the declaration of all property held by a public official, by the time all the exceptionsto this requirement had been listed there was virtually nothing left. The legislation,enacted in the dying days of a particularly corrupt presidency, was clearly for public consumptiononly. During Yeltsin's presidency in Russia there was a proposal that every singlepublic official, from the President to the street cleaners, should make written declarations tothe tax police, arguably the most corrupt arm of the Russian administration. The whole proposalwas a logistical impossibility, and not surprisingly came to nothing.

As timid and ineffective are the new rules on disclosures of assets introduced in 1999 for themembers of the in-coming European Commission. These were prepared following the abruptdeparture of their predecessors amidst a cloud of allegations about nepotism and corruption.Carefully framed, the provision makes the Commissioners judges in their own cause--and theyneed only declare what they think might at some future time give rise to a conflict of interest.Full disclosure is not required. The resulting declarations displayed on the EU website makemost of the Commissioners, and their spouses, look impoverished by any European standards,and it is doubtful whether these declarations would have helped avert the scandals that soengulfed their predecessors. The provision reads:

Financial interests and assets
Commissioners must declare any financial interest or asset which might create a conflict of interests in the performance of their duties. On taking up their duties, and whenever there is any change during the term of their office, they shall make, according to the model in the Annex, a declaration of such interests. The declaration shall include any holdings by the Commissioner's spouse which might entail a conflict of interests. Declarations shall be scrutinised under the authority of the President and with due regard for Members' areas of responsibility. These declarations shall be made public.

In today's world, however, increasingly governments are introducing more meaningful publicdisclosures, Bulgaria and Thailand being just two. South Africa is a third, which has introduceda scheme for the monitoring of all parliamentarians (including Ministers). There, a compromisehas been reached in an effort to meet legitimate claims to privacy. Certain disclosuresare made openly and publicly; some are made as to the substance of the interest but the actualvalue is disclosed privately; and the interests of family members are disclosed, but in confidence.The argument for the last is that members of a parliamentarian's family have a right toprivacy, and it should be sufficient for the disclosure to be made on the record, but not on thepublic record.^[26]

The development of effective and fair regimes for the monitoring of the incomes, assets andliabilities of senior public officials will be followed closely by anti-corruption activists, for ifthey can be made to work--and there are obvious difficulties--then they could serve as avaluable tool in restraining abuses of office.

Integrity testing

Unless a corrupt act is exposed, how do we know that an official is corrupt?And more importantly, how can we ensure that these officials are not promotedto positions where they can wreak even more damage? And, in handlingallegations of corruption made against officials, how do we ensure thatmorale is not adversely affected? And that complainants--and innocent parties--are protected. Such allegations are easily made. If they are not basedon truth, they can be morally damaging.

Sidebar:"False" assets declaration claims Thai minister

A further complication can be where those making allegations have a historyof criminal involvement, especially where their complaints are made againstthe police. This gives such a complainant a low personal credibility. So howcan reliable evidence (either of integrity or of corrupt tendencies) be produced,in ways consistent with the constitutional rights of officials as citizens,and in ways in which neither the complainant nor the person complainedof is unduly "threatened"?

Integrity testing has now emerged as a particularly useful tool for cleaningup corrupt police forces--and for keeping them clean.

In various parts of the developed world, police corruption scandals havecome in cycles. Rampant corruption has been exposed; clean-up measureshave been implemented; corrupt police have been prosecuted or dismissed.But within a few years, a bout of fresh scandals has emerged. This, it is nowrealised, is because whole reform strategies have been misplaced. They have been founded ona belief that getting rid of "rotten apples" in the form of corrupt officers would be sufficientto contain the problem. It is now clear that it is not enough to "clean up" an area of corruptionwhen problems show. Rather, systems must be developed which ensure that there will beno repetitions. It is in the essential field of follow-up and monitoring that integrity testingreally comes into its own.

Integrity testing in New York City

Since 1994, the New York City Police Department (NYPD) has been practising a very intensiveprogramme of integrity testing.^[27]

Simply stated, this means that the Internal Affairs Bureau creates scenarios based upon knownacts of police corruption, such as the theft of drugs and/or cash from a street level drug dealer, totest the integrity of NYPD officers. The tests are carefully monitored and recorded using audio andvideo electronic surveillance as well as the placement of numerous "witnesses" at or near thescene.

The NYPD strives to make the scenarios as realistic as possible and they are developed basedupon extensive intelligence collection and analysis. All officers are aware that such a programmeexists and that their own conduct may be subjected, from time to time, to such tests(although they are not told about the actual number of such tests which has produced a sensethat they are far more frequent than they are in practice).

Integrity tests are administered on both a targeted and a random basis. Thatis, certain tests are directed or "targeted" at specific officers who are suspected,usually based upon one or more allegations from members of thepublic, criminals or even other officers, of having committed corrupt acts.^[29]

In addition, certain tests are directed against officers selected at randombased upon the knowledge that they are engaged in work which is susceptibleto certain acts of theft or corruption. All of the tests are carefully plannedto avoid entrapment, and no officer is "enticed" into committing an act ofcorruption. The scenario merely creates realistic circumstances in which anofficer might choose to engage in a corrupt act.

More than one thousand five hundred (1500) integrity tests are administeredeach year among a force of 40,000 officers. The data produced by these testsprovides reliable, empirical evidence of the rate of corruption among NYPDofficers. The results have been both useful and instructive.

The rate of failure (i.e., when the subject engages in a corrupt act) in the "targeted"tests is significant. About 20 per cent of the officers tested on thisbasis fail the test, are prosecuted and removed from the force. This wouldseem to validate both the reliability of carefully analysed public complaintsand allegations of police corruption and the efficacy of the specific integritytests employed.

The introduction of the system has also seen the number of reportings ofattempts to bribe police officers soar. Where previously offers of bribes mayhave been laughed off and not taken seriously, they now seem to be reported.No police officer can now know whether or not the offer made to him or heris an "integrity test", and it is better to be safe and to report the incident thanrisk treating it as an irrelevance--let alone accept it.

By contrast with the comparatively high number who fail the "targeted" test,only about one per cent of the officers who are subjected to "random" tests fail.This would seem to support the long held view of senior NYPD managementthat the vast majority of its officers are not corrupt.

Sidebar:The story of a corrupt Police Commissioner...

In addition to providing valuable empirical evidence about the rate of corruptionamong police officers, integrity testing has produced very useful lessonsabout the strengths and weaknesses of the supervision and control of police officers inthe field. Such lessons are used to develop better training and more effective policies to insurethat police services are provided effectively and honestly.^[30]

There can also be no question that integrity testing is a tremendous deterrent to corrupt activity.The NYPD has seen a dramatic rise in the number of reports by police officers themselves ofbribe offers and other corrupt conduct by members of the public and/or other officers since theintegrity-testing programme was initiated. Some of this rise is undoubtedly attributable to thefact that NYPD police officers are concerned that their actions may be subject to monitoring andthat even the failure to report a corrupt incident could subject them to disciplinary action.

Since then the London Metropolitan Police has initiated a similar programme of integrity testing,and early reports indicate that they are obtaining some of the same benefits.

Wider uses of integrity testing

The concept need not be confined to police activities. In some countries hidden television camerashave been used in the ordinary process of criminal investigations to monitor the illicitactivities being conducted in the chambers (or private offices) of judges, capturing corrupttransactions between judges and members of the legal profession. The "integrity testing" techniquemight therefore be developed in the context of judicial integrity testing. It would alsoseem to have potential for use in other areas where the public sector is engaged in direct transactionswith members of the public, particularly in customs.

It would be interesting, too, to see the effect of this same approach in the area of internationalgovernment procurement contracts. One could arrive at a situation where major internationalcorporations bidding on government contracts in a developing country had to contend withan integrity testing programme, knowing that the payment of any bribe (or even the failure toreport the solicitation of a bribe) would subject them to instant exposure as a corrupt company,and to public blacklisting.^[31]. It would seem to be a simple matter to use integrity testingto cull out junior staff who are taking a large number of small bribes. Yet junior officials donot lie at the heart of the corruption problem. It will be more difficult to adapt the methodologyto counter those senior officials who are involved in a small number of highly-lucrativetransactions.

The possibilities the technique presents for the developing world have yet to be thoroughlyexplored. However, on face value there would seem to be considerable merit in establishing asystem that is known to all officials (be they police, customs or elsewhere in the system), atthe very least, as a means for tackling and reducing levels of petty corruption.

Undercover investigations

Undercover investigations are closely related to integrity testing, but lack the random element.These investigations are only looking for what is wrong, and not to establish what is goingwell, and who is honest.

There are a number of risks which must be minimised, and countries should have clear guidelinesfor these types of investigations. The risks can include:

• harm to undercover employees;
• harm to private individuals and businesses, and the risk of liability of other lossesbeing incurred by the government;^[32]
• invasion of privacy;
• the activity resulting in entrapment (i.e. creating an offence where one would otherwisehave been unlikely to occur, such as offering a very large bribe); and
• the propriety of undercover employees or cooperating individuals actively participatingin the activity being targeted by the operation.

It is usually thought advisable for those who are likely to be the prosecutor in a case--if thereis one--to be involved in the oversight of the investigation. This can ensure that the evidenceobtained is both relevant and admissible in court proceedings and of a quality which is likelyto bring a conviction.^[33]

A cautionary note

Integrity testing has to be developed and conducted very carefully. It is essential, for instance,that the temptation placed in the way of an official is not so great as to tempt even an honestperson to succumb. The object is to "test" the integrity of the official, not to render an honestone corrupt through a process of entrapment. More than this, most countries have "agentprovocateur" rules in their criminal codes, which act as a judicial check on what is permissible.These rules vary from jurisdiction to jurisdiction, but they obviously have to be borne inmind. It is important to ensure that the degree of temptation is not extreme.

That said, there is no doubt that the New York experience has shown that integrity testing,properly and fairly conducted, is potentially a highly effective weapon for the launching of acampaign to confront systemic corruption in many public agencies.

Some indicators as to the effectiveness of an ethics policy in support of a national integrity system

Ethics

• Is the approach to promoting ethics characterised by participation so that a back-and-forth discussion takes place on professional ethics, with give-and-take between those most affected?
• Are public service ethics depoliticised, in the sense that the raising of ethical standards is something to which all shades of legitimate political opinion can subscribe and in which they can participate meaningfully?
• Are there codes of conduct in the public sector?
• If so, are they built on values from the bottom up, not just from the top down? Are they aspirational in character?
• Do regular ethics training sessions take place for public servants at all levels? Do these include role playing and the discussion of real-life situations (as opposed to simply being printed hand-outs and/or lectures)?

Monitoring of assets

• Are there arrangements for the regular monitoring of the assets, incomes and liabilitiesof public officials in decision-making positions? If so, are these seen as beingeffective by the general public?
• Are the life-styles of public officials seen by the public as being broadly in line withofficial salaries?

Integrity testing

• Has the introduction of integrity testing been considered?
• If it has not been introduced, are there valid reasons why it should not be?