Public Office and Public Trust: Where the Law Stops, Ethics Begin

President George Bush seems quite serious about making a badly battered notion a cornerstone of his Administration: that “public office is a public trust.”

His first speech to senior government officials was like a brisk gust, blowing away some of the moral malaise produced by years of ethical minimalism. Bush bluntly invoked his audience to pursue missions of public service proudly and unselfishly. And for the right reasons--love of service and country--with no expectation of personal gain.

The President confronts the ethics issue on two fronts. First, he has appointed a commission to make recommendations by March 9 on legislation to make the ethics rules clearer, simpler and fairer. Second, and more important, he emphatically re-established the primacy of the time-tested principle that those who serve the public trust should avoid even the appearance of wrongdoing.

On one hand, I accept the need to establish clearer and broader enforceable standards for those who lack the sensitivity, judgment, self-restraint or moral fiber to avoid behavior that compromises the integrity of government. On the other hand, I worry that we expect too much from laws and not enough from people.

The vast array of ethical lapses described in newspapers all over the country would not have been prevented by more laws--most of the conduct violated existing laws.

On a practical level, there are two vital steps to ethical behavior: knowing what is right and doing it. In the real world of politics, both are difficult. Though passing new laws may seem appropriate, those who really want to improve the moral quality of government need to recognize the inherent limitations of laws and acknowledge the important role of personal commitment to honor and duty.

Current approaches to ethics laws are far too narrow. Almost all rules focus on financial conflicts of interest, a narrow part of the spectrum of ethical issues confronting persons in government. Thus, referring to often-technical regulations as “ethics laws” invites people to think of them as standards of ethical propriety rather than as definitions of what is impermissible. It also encourages a legalistic approach to ethics that induces people to use laws as the moral criteria of conduct.

Another problem is that ethics laws rely too heavily on disclosure. This seems to suggest that virtually any transaction is proper so long as it is reported. Worse, many politicians have no qualms about constructing transactions in ways that even avoid minimal reporting requirements.

Ethics laws also tend to trivialize ethics. Ethics is about right and wrong and how an honorable person should behave. But most of the so-called ethics rules reduce the concept to onerous financial disclosures and small and petty prohibitions.

The legislative process tends to create patchwork statutes filled with unjustifiable exceptions, intentional ambiguities and gaping loopholes. Otto von Bismarck once said, “Laws are like sausages; it is better not to see them being made.”

Because of the inherent limitations in ethics legislation, Bush’s aggressive assertion of avoiding the appearance of impropriety is especially important. This traditional criterion of government ethics had been mauled by three of President Reagan’s closest friends, Edwin Meese III, Michael K. Deaver and Lyn Nofziger.

The “appearance of impropriety” test is sometimes called the “Caesar’s wife” rule, based on the notion that a public official should, like Caesar’s wife, be beyond reproach. It is derived from the principle that a democratic government requires the trust and confidence of its citizenry and that persons in government have an obligation to safeguard that trust and confidence.

Because the public’s faith in the integrity of government is as much a function of perception as reality, it is not always enough to avoid actual wrongdoing or assert the lawfulness of an action. To protect their credibility, public officials need to avoid all actions that cast reasonable doubt on the integrity of government.

Former Atty. Gen. Meese’s close relationship and ongoing transactions with his friend E. Robert Wallach present a classic example. Regardless of the legality of the conduct, it appeared that Meese allowed his office and influence to be used for another’s private gain.

Under the Caesar’s wife rule, all persons in the public sector have an obligation to exercise “independent professional judgment” so that all official decisions are made objectively, fairly and impartially--free from the influences of personal relationships, financial incentives or narrow ideological commitments. Second, they also are expected to have--and be seen to have--the public interest as their only goal. Finally, a public official, as symbol of government, has a special responsibility to behave in a way that brings credit rather than disrepute to the office.

Examples of conduct that may create an appearance of impropriety include acts that appear to violate the spirit of rules or laws, using official authority for private gain, public drunkenness, lewd behavior or associating with persons thought to be involved in criminal activities.

The current concern with former Sen. John G. Tower’s nomination as secretary of defense raises several issues. The fact that he received more than $750,000 for “consulting” (he rejected the word lobbying) raises the eyebrows, if not hackles, of many citizens who see such extravagant payments as a form of “cashing in” on government service.

It also raises concerns about his ability to remain aloof from former clients after re-entering public office. Second, there is concern that he is so ideologically tied to the concept of “more is better” in weaponry that he will not be able to exercise the detached objective judgment required by the office. Finally, persistent questions about drinking and womanizing do not cast ennobling light on government.

The desire to protect the ability to exercise judgment is at the root of all conflict of interest rules. The test is: Would a reasonable person believe that the conduct is likely to compromise the public official’s ability or willingness to exercise independent professional judgment or cast substantial doubt on the official’s fitness for office?

One of the hard things for people under the public microscope to accept is that public perceptions are--and will always be--only partially informed. In complex situations, detailed facts or private motives that could explain away an apparent impropriety are rarely known. Scrupulous public officials have to be ready to explain and document potentially questionable behavior--or refrain from it--simply because it will create the appearance of impropriety.

There are limits, however, and appearances must be judged by rational, fair standards. The mere fact that some people believe an act is or looks improper is not sufficient. Similarly, an act is not improper simply because it could be made to look improper by a scandal-hunting journalist or an opponent with an ax to grind.

The standard of impropriety is not set by the most suspicious, cynical or self-righteous members of society, but by reasonable persons with no special predisposition to assume bad faith or corrupt motive.

It is not always possible to anticipate how an act will be perceived by others, especially since it is difficult to know how much knowledge those who judge the act will have. Then the public official, in exercising personal discretion, should generally consider the conduct from the perspective of a person who only knows what is readily apparent to a casual observer.

An early test of President Bush’s interpretation of and commitment to the Caesar’s wife rule will be his reaction to the Tower controversy; will he dismiss it as political foul play or will he re-examine the charges? What the President finally says and does will be an important indication of what is ahead.

So far, Bush should be applauded for a bold beginning. He exercised more moral leadership in that first week than we have seen in a long time. This country can only benefit from revitalization of the traditional values of selfless integrity, community and public service.