Jane S. Ley: Ethics Management in Government: Experience in American Government

Notes from the seminar Ethics Management in Government: Experience in American Government, organized by the Anti-Fraud Office of Catalonia, and held in Barcelona, in January 23, 2014.

Jane S. Ley. Former Deputy Director of the United States Office of Government Ethics
Ethics Management in Government: Experience in American Government

The US Office of Government Ethics (OGE) was created after the Watergate scandal to prevent and investigate corruption and other unethical political practices. The office works at the Federal level, but some states and cities have similar bodies that deal with ethics, conflicts of interest and corruption.

The office creates written standards on what the citizen is expecting from a public officer: standards on payments, codes of conduct, etc.

Ethics or conduct is about everything that is not covered by the Law. But it is not about “general ethics” but about widely acknowledged standards and what is a correct (public) behavior and what is not.

For instance, a confidential financial disclosure procedure was created to avoid or to alert about conflicts of interest. This instrument is especially used as a counseling tool, to raise awareness on acts that can enter a conlifct of interest, more than a tool for ex-post enforcement or punishment.

Another project that the office runs is training for each and every new public officer.

There is, though, an enforcement part of the programme. This enforcement part consists in investigating people and practices that are suspicious of unethical behavior, or some information has been made public that raises questions about their behavior.

Discussion

Rogelio Rajala: who provides training? Ley: every agency is in charge of deploying their own training and it’s usually done in house.

Q: what happens when people lose trust in the government? Ley: when the citizen trusts not the government, it is a very difficult situation as anything the government does does not seem legitimate. Only regaining trust is a way forward. We have to raise awareness on people acting evilly and people just acting bad but without a bad intention. This is an important task to do and it helps in recovering trust.

Jordi Tres: does the office intervenes in the selection of the people recruited for the different agencies in charge of public ethics. Ley: OGE trains these officers.

Q: how do we deal with the ‘revolving door’ problem? Ley: the dilemma is that the government wants to recruit the best brains out there, but also to avoid that these best brains (who are working for top companies) use their government position and information to be able to help somebody they are going to work with/for in the future. The latter is the goal of the OGE. But once they’re out of office, there are also laws that prevent conflicts of interest about (not) using confidential information, access to top contacts, etc.

David Morella: how to prevent excessive lobbying power of corporations? Ley: there’s a lobbying law that deals about who talks to whom and about what, that regulates donations to parties and campaigns, etc.

Ismael Peña-López: what happens in the gray area between what is fair and what is illegal, i.e. what is unethical while being legal? Or what happens when the crime has expired (i.e. not guilty, but not innocent either) or when the process of judging a person takes very long? Ley: It depends. For public employeeds, there is a code of conduct and if their behavior is affecting or can affect their duties, they can be fired, or be given other administrative duties out of their actual responsibility. For members of the cabinet, it depends on how embarrassing they are to the president or to the one they are working for. The problem comes with elected members, who can resign but do not necessarily have to. Thus, it will depend on their voters’ outrage, what they did, etc.

Gabriel Capilla: how you deal with conflicts? Ley: our laws are not that much about conflicts of interest but more about incompatibilities. E.g. selling stock of specific companies they might own if they are in an office related with the Treasury.

Carme Olivé: what about local politics? In Spain, most political representation is based on political parties. But a mayor is somewhat similar to a mayor in the US. How can we raise awareness on transparency and ethics a the local level? Ley: the smaller the community, the more likely conflicts of interest will be avoided or found. Notwithstanding, the transparency of the whole process and the public perception of fairness is crucial.

Q: in Spain there is a good amount of people that are involved in trials and charged for different crimes, and the process is taking so long that the presumption of innocence seems not to be enough for the citizen. How can media help in bringing some light to the debate? What happens with the trade off freedom of speech (of media) vs. privacy (of elected representatives being tried)? Do we trust media? Do they help in creating an objective public opinion upon whether an elected representative should resign or be dismissed? Ley: the US do not control the press, and even if there are laws against libel, freedom of speech is very important and rarely is tampered with. And thus trust the public to make up their own decisions.

Óscar Rojas: the US have a law that deals with access to information since 1966, unlike Spain which just approved its own in 2013 and the Catalan Parliament that will very likely approve theirs in 2014. Do you think that the law should be restrictive to accessing information or very tolerant? Ley: the good thing of being a late comer is that you can benefit from what other countries have done in the field. My own principle is that the more information is out there, the better, even if one did not ask for it. And exceptions should be as narrow as possible. If the information is embarrassing to the government, that is not enough to withdraw that information. Only matters of national security, whether someone can be killed because of the disclosure of certain information, etc. would be exceptions to be taken into account.