This article was featured in the December 2021 Issue of American Police Beat Magazine
“You’re at your new neighbors’ house. They’ve invited your family over for dinner to get to know you. When you excuse yourself to use their restroom, you come across a small baggie of cocaine on an end-table. What do you do?”
That’s a scenario that was posed to us when I was a student at the police academy, many years ago. The correct answer was, of course, to arrest them. You arrest the whole lot of them, while boldly proclaiming that no one is above the law.
It’s a well-intentioned exercise with several shortcomings. The first is that it was a little unfair. None of us had yet experienced the outrageous failings of the legal system. The instructor probably should have explained that my new neighbors weren’t going to simply disappear after I arrested them. They’d quickly bond out and be back in the neighboring ranch-style house, which would make for really awkward block parties. My wife and kids would become the recipients of hate and I’d be the subject of vicious neighborhood rumors. I probably also deserved to know that a choice to arrest them would likely mean I’d be accused of planting it or some other nefarious lawyer trick when it went to court. That would be more realistic. I’d like to think that I still would have answered “arrest”, but it would have been a more meaningful answer when I truly understood the sacrifice involved.
The Real Face of Corruption
The illustration is lacking, though, in another major way. Hard moral decisions in government don’t normally happen that way. They aren’t usually that clear cut. Corruption is not usually a city official accepting a suitcase full of cash to make sure someone’s new building project gets approved. It’s more subtle. It’s more likely to be a codes enforcement officer being told to approve a building plan he normally wouldn’t, because the applicant is a friend of the boss. It might be a government official asking a police administrator to make some calls and have a ticket dismissed. It could be a city administrator recommending a contract to a local developer without the appropriate bid process. He isn’t getting a bag full of money, but everyone knows that the contractor lets him use the company beach house whenever he wants.
It’s easy to ask what an officer would do when they observe a criminal violation of the law. They’d arrest the perpetrator, of course. That’s what cops do. But what about the times when something is simply wrong; not criminal?
This, in my experience, is usually what corruption actually looks like. This reality creates several questions. Firstly, is it even an issue? These things aren’t typically harmful in the way that a drug dealing sheriff or a mobster mayor would be. Are these types of things truly “corrupt”? Should they even be bothered with in an ethics course? Secondly, what can be done about them? If the acts are not arrestable, how can they be prevented and addressed?
A Legitimacy Problem
These “minor” acts are, in fact, corruption and are indeed dangerous. Government as a whole (and law enforcement in particular) is suffering from a legitimacy crisis. In the tale of Robin Hood, we all identify the outlaws as the proverbial “good guy” and the Sheriff of Nottingham as the “bad guy”. I pose this question to classes that I teach and they all, without hesitation, make this distinction. Why? The sheriff is, in fact, the legal authority in the story. He is representing the law, and the outlaws are breaking it. Why do we so readily consider him the bad guy?
It’s because of legitimacy. In our minds, his self-serving twisting of the law takes away any moral authority we’d normally accord him. We don’t condemn the outlaws; we don’t expect them to willingly comply with the things he asks of them. His misuse of the law has made him illegitimate; he is a farce.
So, there is in fact a real danger associated with these “minor” corruptions. A good rule of thumb, in terms of ethics, is that we should treat everyone and every situation the same. That is, no situation should be treated any differently because of who the person knows or how powerful they may be. Every event in which we grant minor favors plants a seed of doubt in the collective mind of the public. When that doubt is great enough, they begin to view the government as illegitimate and no longer feel the moral compulsion to comply with that government. People don’t typically say “I know I’m one of the bad guys. That’s why I’m going to riot and throw rocks at this cop.” They’re probably justifying throwing rocks because they’ve convinced themselves that the government is illegitimate. Very few people want to see themselves as “bad.” Every gang member I’ve ever dealt with sees themselves and their cohorts in terms of “family” or other positive concepts. Though they may be operating outside of the law, they’ve gone to great lengths to convince themselves that the law isn’t good. There are many other factors at play in some of these scenarios (and no shortcomings on the part of a government justifies these actions), but the point is that government officials should give no excuse for people to view their organization as illegitimate. These “minor” acts of corruption do just that. They foster illegitimacy.
What can be done to address these issues of "minor" corruption? First and foremost, individual government officials have to make a personal choice to set their standard of what’s acceptable very high. We cannot policy our way out of issues. At the end of the day, the only true solution is for individuals to do the right thing. Government does have an obligation, however, to create a system that discourages these minor corruptions. In this realm, the federal (and most state governments) does very well. There are inspectors general that officials can go to if they see something questionable taking place. IG’s operate outside the chain of command of their organizations and are equipped to investigate suspicious incidents without fear of reprisal. Many states also have some form of ethics board that officials can contact with concerns that might not merit a criminal investigation.
Local governments, however, are often poorly equipped to handle these types of issues. This fact may be partly to blame for the reputation of “good-ole boy” behavior accorded to many small towns. Most local governments don’t have offices of inspectors general. The more common types of local government, in fact, have nowhere for employees to complain about corruption. The most common type of government is a Council-Manager government, in which an elected Council hires a City Manager to run the day-to-day operations of the city. In most of these governments, the City Manager is afforded absolute authority over the employees of the City. He can hire or fire employees at will (meaning he doesn’t need a reason). I’ve personally worked in several entities where the employee was offered the opportunity appeal disciplinary actions by the manager, but the manager was the person who heard the appeal. In Mayor-Council governments, an elected mayor runs the day-to- day operations of the city. He or she usually has similar powers in terms of hiring or firing employees without cause. While this setup at least allows the possibility that citizens can hold the mayor accountable at election time, it’s still easy to see why an employee would be a fool to speak up about any unethical conduct they might observe at work.
The sad part is that many officials in smaller towns are (unsurprisingly) perfectly okay with these arrangements. While it is entirely possible to set up appropriate accountability measures within town charters and other local documents, a better solution would be for states to ensure they have laws in place to encourage would-be whistleblowers. There are genuinely good people working in all levels of government, and many local governments do indeed have quality protective measures in place. But expecting a governmental entity to police itself, as a general rule, is like asking the noble fox to guard the proverbial henhouse. We should not be surprised to return from the market to find a fat, smiling fox and a scene of feathery carnage. Oversight is more appropriately dictated by a level of government removed from the issue. In the Federalist form of government employed by the US, the most appropriate place for ethics safeguards is clearly the state governments.
HOW TO FIX IT
While many states have whistleblower laws on the books, they often don’t go far enough. Many, for example, prohibit retaliation against whistleblowers and provide that they can sue their employer in court. While well intentioned, these laws provide little preventative effect against corruption and tyranny. The average government employee cannot afford to run out and hire an attorney on the off chance that their tens of thousands of dollars in legal fees may be paid if they’re successful in court. Furthermore, the idea that an employee can be eligible for some windfall simply because they were mistreated is largely a myth. Most states require that an employee suffer actual damages before filing a lawsuit, which means that they must have their lives turned upside down before there is even a potential of relief. It’s not realistic to expect the average employee to do the right thing in the face of these odds.
A more appropriate setup would make the state government itself (not the whistleblower) responsible for their protection against retaliation. If an employee feels that they’re being retaliated against because they attempted to report inappropriate behavior in a governmental entity, the state in question should provide an avenue for them to report the retaliation. The state government should proactively investigate such allegations of retaliation. Furthermore, there should be a provision in place for an administrative court (or similar body) to evaluate the investigative findings and address any retaliatory action by the local government.
The bottom line is that our society can’t demand government employees speak up when they witness inappropriate behavior, only to leave them to suffer the wrath of their superiors when they do so. To do so is the age-old folly of words without action. If we truly want to create environments where governmental corruption can’t survive, it takes more than Pollyannaish speeches about the need for individual employees to “see something; say something”. State governments should all have robust systems of accountability in place to ensure that no official is above the law. Nothing less than the legitimacy of our system is at stake.