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.

Enrico Carloni: e-Administration and Transparency: the diffusion of public information on the Internet

Notes from the research seminar e-Administration and Transparency: the diffusion of public information on the Internet, by Enrico Carloni, held at the Open University of Catalonia, Barcelona, Spain, on May 27th, 2010.

e-Administration and Transparency: the diffusion of public information on the Internet
Enrico Carloni

Public administration as a glass house, where people can look through it and peek on the inside. In Italy, public transparency is a constitutional value, though it is not referred in this terms but using: impartiality, responsibility, democratic principles, politic responsibility or accountability. All these principles require transparency and that all citizens are knowledgeable of what the government is doing.

But, traditionally, in Italy, the de facto rule was secrecy. It is in 1990 that transparency is added in a reform of the Law that regulated the public administration. The right to transparency is strengthened in 2005 in the Italian Law for Digital Administration. In 2009, the ‘Brunetta’ Law regulates the publication of information on the Internet, including transparency as publicity online, instead of right of access to information, which was what was stated in 1990. Right of access vs. publicity online are quite different rights.

Right of access (law of 1990) required a “motivated” request, disclose direct interest, etc. In the end, this requisites implied an “access without transparency”, and the right of access was more of a monitoring device rather than a principle in itself.

In 2005, the law for Digital Administration (or Codice dell’amministrazione digitale) requires that transparency is guaranteed as a principle in itself, forcing a shift from right of access to publicity.

The new law uses an old device — open data and transparency of public information — that had been set up for efficiency purposes, and adds a new use for that old device: public information for transparency. This will, with time, be applied in the Operazione Trasparenza.

Advantages of the new model

  • Absence of mediation, any capable citizen can individually access all the information (Orsi Battaglini).
  • Increase and ease of availability, abandonment of the request-and-wait-for-a-response approach (Herz, 2009).
  • Possibility of new products, creation of new knowledge, really in line of transparency 2.0.

Risks of the new model

  • It is a system too weak in front of digital divides and knowledge divides in general.
  • Privacy hazards, from the glass house to the glass official.
  • Messy rooms: against maximum transparency, maximum opacity: the area of public information is fully open, but very limited.
  • Information overload
  • Biases of accountability, where transparency is used instrumentally: massive information on non-significant information, propaganda, etc.

Discussion

Blanca Torrubia: What are the limits of public information publicity? Who sets the rules of publicity? Who decides what is to become public information? A: The Law is very clear about that.

Ana Delgado: What happens if the information that is made available is wrong and this damages the citizen’s interests? A: This situation follows the usual legal paths of damages to third parties.

Ignasi Beltran: Is there a system to penalize misbehaviours? A: A way to penalize misbehaviours, by law, is firstly to penalize the responsible of that information. Another one is to assume the responsibilities that come from a lack of information (e.g. a citizen cannot be fined if they did not something that was not properly published). Citizens can also denounce misbehaviours and ask them to be corrected.

Ismael Peña-López: What does publicity exactly mean: open data or information? First hand raw data, or elaborated second hand information? A: Italy is in its transition from open information to open data. Traditionally, it was about opening documents, as the document was both content and container. The logic of the document and the logic of the data went together. And the inertia is still to high, so the logic of date is superseded by the logic of the document. As some new laws are designed with the logic of data, there are some pressures to push ahead the transition from document to data.

David Martínez: Has there been a constitutional evolution about the concept of transparency? Has it been more formally recognized as a right in itself? How do we monitor impartiality in public transparency? A: There has not been a change in the Constitution or the like, but there have been court rulings that have strengthened the new nature of the concept of transparency. But transparency still is not a principle in itself, but an enabler or an instrument to reach other principles (e.g. transparency for accountability).

Mònica Vilasau: How to monitor privacy? And how to cope with the trade-off between privacy and access? A: Access usually prevails on privacy. But the citizen can perform any “treatment” on their data. Some data, nevertheless, are private and cannot be published unless they are anonymised. On the other hand, if some public data are used to harm privacy of third parties, this can be treated as a law infringement, as it is like a non-consented use of private data.

Agustí Cerrillo: Does the CAD allows for an increased efficiency in public administration? What relevant information does get to the citizen? Wouldn’t it be better to keep the right of access, which allows for asking for further information, instead of right of publicity, which just provides public information on specific issues? A: Efficiency of the act, efficiency of the Administration, efficiency of a more transparent administration. The more the knowledge about the procedures of the public sector, the more likely to achieve higher levels of efficiency.

References

Enrico Carloni (2010). La “casa di vetro” e le riforme. Modelli e paradossi della trasparenza amministrativa (PDF file, 214 KB)


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About Me

    I am Ismael Peña-López.

    I am professor at the School of Law and Political Science of the Open University of Catalonia, and researcher at the Internet Interdisciplinary Institute and the eLearn Center of that university. During 2014 I am also the director of the Open Innovation project at Fundació Jaume Bofill.