Perhaps it is useful from time to time to reflect on the role and direction of ethics and internal disclosure capacities in government. What is going well and what not so well? What comes to mind are disclosures or cases which give rise to an uncertainty about what our approach should entail? In what direction are we evolving our responses to disclosures? In the current federal public service, and given the relative newness of the PSDPA, it seems that we are still in the process of working this out. However it is important to be aware and mindful of what is happening and the choices we are making. As ethics officers, are we in a forensic role or an administrative role? Are we about mediation, informal resolution, before investigative activity, before we make findings and recommendations to the appropriate authority? Are we about catching bad people, legal compliance and discipline?
I feel in my experience (now at over 100 government ethics and disclosure development related contracts in the last 10 years) that the notion of what we do as ethics officers and the PSIC may have strayed from the original intent. Many seem to be going the way of being another quasi-legal arm of the justice system, rather than operating in the domain of ethical behavior and related administrative processes. Put another way, perhaps we have lost our way if we consider we are solely about a legal forensic investigative approach that protects parties in law rather than being free to deal with issues in the domain of ethics. We seem to be very “risk adverse” in drawing “blame” conclusions for fear of liabilities if mistakes are made.
As in most disputes the burden of proof is usually very elusive and difficult to determine, but the “balance of probabilities” or “reason to believe” that inappropriate conduct has occurred, should not prevent findings and corrective action. We should be able to call misconduct as it is, in all its shades and variations, and that “certain behaviours are clearly unacceptable”. I believe that we have to position ethics and law in terms of the understanding that law is the “codification of certain values in areas of significant impact to the organization or society”. We do not codify everything and should therefore have room to make determinations in the domain of ethical values when ethical issues are raised.
Then we have the question of whether we have to make findings of guilt and punish people to justify our existence or effectiveness? The domain of ethics and values offers alternatives that allow for the distinction between “errors in judgement and deficiencies in values”. There are alternatives relating to forgiveness, apology and tolerance and mediation. Perhaps we should only advance cases to the point where criminality is involved, and then it is time to handoff the case to those authorities capable of handling forensic evidence and with the authority to investigate and dispense justice in accordance with the law. In that way legal and ethical organizational capacities complement, rather than duplicate each other.
The domain of ethics and internal disclosure is one of certainly identifying misconduct, ensuring the truth is agreed to, and responsibility is accepted but more importantly that corrective action is undertaken and relationships restored. A greater use of mediation, non-violent communication, and building ethical relationships may be what we should advocate as the norm.
We should never forget that we are in the business of carefully balancing “building integrity” with ‘controlling wrongdoing”. The notion of helping good people do the right thing versus catching transgressors should always be kept in mind. This is about a healthy, safe, ethical and socially responsible public service. Perhaps this should guide us as we evolve approaches to disclosure. We do not need to measure success by body counts.