Ethics

Reflections on ICMA's Code

Author Terry Cooper, in his ethics textbook The Responsible Administrator, notes that the ICMA Code of Ethics is the "most operational" of the codes adopted by associations of governmental professionals. The code of the National Education Association (NEA) is the only other one that has an enforcement mechanism. Cooper notes, with apparent approval, that the ICMA Code is 300 words long, while NEA's contains 1,200 words.

He takes the position that effective codes of conduct cannot be imposed upon a group. They require the active participation of many. Ethical laws may be imposed, but there is a significant difference between laws and codes. Generally, codes are a statement of the ethical optimum, as opposed to laws, which are a statement of the ethical minimum.

Participation and acceptance by many is important because under these circumstances the code of conduct is more likely to be internalized. Internal controls are better than external ones. If a code of conduct is internalized, it becomes more intuitive, and there is less need for an outside monitor. If this is the case, the code can be maintained even with lax supervision.

Cooper quotes author Fritz Marx as follows: "Judicial redress, official liability, and the whole gamut of disciplinary measures are poor substitutes for a sense of duty. No formal device for accountability can give us a clue as to the components of answerable conduct. One cannot commandeer responsibility. One can only cultivate it, safeguard its roots, stimulate its growth, and provide it with favorable climatic conditions."

The Association's stated and enforced Code of Ethics is what sets ICMA members apart from others in local administration. It is the most valuable commodity or quality that we bring to the table.

You can be average in your financial planning ability. You can be average in your communications ability. You can pursue a reasonable course of continued professional development. But you cannot be a person of average integrity. You cannot be reasonably honest. As public administration professionals, we are required to adhere to (or aspire to) the highest ideals.

In my opinion, the Committee on Professional Conduct (CPC) is the "keeper of the flame" for the profession. As representatives of ICMA's membership, CPC members are on the front line in giving meaning and relevance to the code. Let me hasten to add that I think the proper purpose of this flame is more to give light than heat; the emphasis needs to be on education, training, enlightenment, and raising members' awareness of the code's content and purpose.

Even when the heat must be applied and punishment meted out, I think the emphasis, to the extent possible, should be on reeducation, rehabilitation. Sure, there are some members who deserve a harsher penalty for not abiding by the code, but these cases are so obvious that you won't even debate the point. When you see room for debate, I urge you to think in terms of rehabilitation and not of punishment.

Awareness

While I was sitting in my first ICMA Executive Board meeting, a case was being considered regarding a violation of Tenet 12. A city had issued bonds insured by a national company, and the city manager was pictured in a magazine ad on the ski slopes: he could now relax because managing the city's finances was so easy and successful. Well, his elected officials had asked him to appear in this ad because they thought it would be good advertising for the city, but it was clearly a case of endorsing a commercial product in a commercial ad.

As I thought about this, a cold chill went down my spine. Our city had been using a neat little integrated accounting system, and it was a godsend after dealing with the accounting mess I had found when I got there. It was such a good product that Arthur Young bought it from the mom-and-pop operation that had developed it.

My old friend Bob Bowman, who worked for Arthur Young (AY), was in my office one day and asked what I thought of the product. I was effusive in my praise. He took out his tape recorder and asked if he could tape me. I said, "Sure." At this point, I wasn't thinking that my praise could be considered an endorsement.

Later, as I attended a board meeting being held at the first ICMA conference that had exhibitors, I knew that AY was one of them. Suddenly, I could just hear my praise of this product being played at the AY exhibit, and I would be busted before I finished my first board meeting. I rushed to the exhibit hall to make sure this was not happening. It was not, but you can be sure that my awareness level had been raised.

At this point, I am going to make two assertions, assertions that may or may not seem obvious to you. I think these ideas, however, ought to be central to the way you conceptualize the role of the CPC.

First, the ICMA Code of Ethics has nothing to do with religion, religiosity, or any creed. Our code is the cultural consensus of the members who have banded together to develop it and who have agreed to accept and abide by it.

Second, there is a difference between what is legal and what is ethical; something can be legal and still not be ethical. The ICMA code describes as unethical much conduct that is perfectly legal. For those who think in legalistic terms, the code is not intuitively correct. In fact, those who think in legalistic terms as they try to apply the code are doing it a disservice.

The rules of procedure adopted by the executive board list the factors that may be considered in determining the level of sanction to be applied in the case of an offense:

Nature of the violation.
Prior violations by the same individual.
Willfulness of the violation.
Level of professional or public responsibility of the individual.
Any other factors that bear on the seriousness of the violation.

If the code were carved in stone like a religious creed or set in law, a staff person could look at the facts and mete out the appropriate punishment. This committee, the CPC, is needed because every case must be considered on its own. There must be some generalized concern for precedence, but in my experience, each case is unique.

"The nature of the violation" is a question that is pretty easy to deal with, I think. Lying, cheating, stealing, assaulting, and things like these get a harsher penalty. When it's illegal, it's easy to judge. The difficulty occurs when the violation is not illegal but has been defined as unethical by our code. This is where we sometimes have to wrestle with it.

But if there are prior violations by the same individual, and this has been brought to the individual's attention, then the reeducation has been attempted and failed. Prior violations make a decision easier.

The willfulness of the violation comes into play a lot. Was it someone like me making a stupid mistake, or what could have been a stupid mistake, or was it someone acting with malice aforethought? I mean, I never meant to commercially endorse a product, but it could have ended up that way.

The ICMA board, in a formal guideline, has stated that the CPC should consider the member's "level of public or professional responsibility." Our mission is that professional public administration should support democratic government. To what degree does the conduct in question threaten or undermine this basic mission?

I have always championed the role of assistants in our organization, but this is one case in which I would say that the manager is more important than the assistant. The manager is the prime representative of the profession in a community and bears a greater burden. Others would argue that this creates a double or even triple standard, with some members being held to a higher level of conduct than others. I think there is an important distinction to be made, however. All ICMA members are expected to adhere to the same level of conduct; any difference in the impact of their conduct is only being considered in making a determination of the appropriate disciplinary or corrective action. And there may be a difference in impact between the action of a manager and the action of an assistant.

Questions and Answers

We encourage members to report what might be violations of the code, but we do not require them to do so. Should we, as part of the code, require members to report possible violations?

I don't think so. From an enforcement point of view, you have the difficult question of who knew what, when. Most "possible violations" are just that-possible violations. A real determination cannot be made until there is a thorough investigation. Some members may not consider that a violation has occurred and therefore not report it. In my experience, ICMA members take the code seriously, and only in an extremely isolated instance would a significant possible violation go unreported.

But doesn't voluntary reporting mean that the members of "the old boys' network" won't report each other?

I guess, in all modesty, that the consensus would be that I am part of "the old boys' network," to the extent that there is one. Senior members of the profession, maybe more than others, know what got them to where they are. They know the importance of the code to the profession.

And they know that the "level of public or professional responsibility" of senior members means that their violations would have a greater impact on the profession and the members. This being said, I have no doubt that one of my cohorts would not hesitate to bring an ethical violation of mine to the attention of ICMA, and I would not hesitate to do this with one of his or her violations either.

Why do we allow anonymous reporting? Doesn't the accused have the right to face his or her accuser?

There is an important distinction to be made. The person making a report of a possible violation does not stand as an "accuser." The matter is being brought to the attention of the CPC for investigation to determine if a violation has occurred. The reporter may or may not have personal knowledge of the conduct in question and may or may not have formed an opinion of whether a violation has occurred.

An independent investigation of the facts determines whether violations have occurred, and the members have a full opportunity to participate in this investigation and to present their facts and points of view.

I have a problem with the private censure, in which case no one else knows that a problem has been addressed. And the person can go on to be a state officer or serve on the ICMA board.

First of all, the state or provincial president and the person reporting the conduct are notified of the private censure. Second, a person who has been corrected, educated, and enlightened may very well be one of our better members. As Joyce Cary wrote in his novel The Horse's Mouth, "The only good government is a bad government in a hell of a fright."

How should the ICMA board handle a possible violation by a board member?

This should be handled in exactly the same way as the possible violations of other members. There should be the same independent investigation of the facts and careful attention to following the regular procedure.

If a situation involves a legal proceeding, the CPC makes it a practice not to act until the legal proceedings are complete. With appeals, this could take years. Do you think we should continue this practice?

Quick, decisive action on a violation is always to be desired. I think, however, that ICMA's legal counsel will advise you that taking action before a legal case is complete exposes ICMA to much more liability than it cares to assume.

—Curtis Branscome
Chief Executive Officer
Stone Mountain Memorial Association
Stone Mountain, Georgia
c.branscome@stonemountainpark.org

This article is adapted from a presentation given at the orientation meeting of the 2005 ICMA Committee on Professional Conduct, held on December 4, 2004.

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