Commentary: What Can Ethics Codes Accomplish?

• Author: Richard Rifkin
• Date: 01 January 2014
• Published date: 01 January 2014
• DOI: http://doi.org/10.1111/puar.12174

Commentary

Richard Rifkin is special counsel to

the New York State Bar Association. Prior

to this appointment, he held positions as

special counsel to the governor, deputy

attorney general for the State Counsel

Division, executive director of the State

Ethics Commission, f‌i rst assistant attorney

general, and counsel to the Bronx borough

president. He has served as a member of

the Chief Administrative Judge’s Advisory

Committee on Civil Practice and on

various committees of the New York

City Bar Association and New York State

Bar Association. Rifkin graduated from

Washington and Jefferson College and

earned an LLB degree from Yale Law School.

E-mail: rrifkin@nysba.org

What Can Ethics Codes Accomplish? 39

Public Administration Review,

Vol. 74, Iss. 1, pp. 39–40. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12174.

Richard Rifkin

New York State Bar Association

The article “Managing Politics? Ethics

Regulation and Conf‌l icting Conceptions of

‘Good Conduct,’” by Richard Cowell, James

Downe, and Karen Morgan, is one of the few ef‌f orts

to measure the impact of governmental ethics codes.

Its main value is that it looks at the ef‌f ectiveness of

these codes. Clearly, this type of review of any govern-

ment program is important so that we understand

whether the program’s objectives are being met.

However, in reviewing any program, there needs to

be agreement on its objectives.  e article addresses

the resistance of government of‌f‌i cials to the ostensi-

ble ef‌f ort of ethics code makers to impose “coercive

state power” by examining multiple examples of local

governments in England. From my experience in

New York, I suggest that if the primary objective of

ethics codes is to change behavior by imposing rules

on reluctant government of‌f‌i cials, these codes will

inevitably be seen as a failure.

 ose who enter into government service with a view

toward enhancing their own personal interests in

some manner will not be deterred by an ethics code,

whatever the penalties for violations may be.  ey will

resist, and if resistance to these codes, as described in

the article, is seen as a failure of the ef‌f ort to change

behavior, the evaluation will almost always be that the

objective has not been met.

I submit that ethics codes have a more limited

purpose.  ey are intended to guide the behavior of

government of‌f‌i cials who are disposed toward act-

ing in a manner that is consistent with serving the

public. In New York, more than 250,000 individuals

are governed by the state’s ethics laws. From my 30

years of experience in state government, I believe that,

overwhelmingly, state of‌f‌i cials and employees want to

conduct themselves in an ethical manner. Ethics codes

are intended to help them in this ef‌f ort.

Government employees are not monks who, when

not working, spend their time tending their gardens.

Nor should they be.  e people are best served by

government of‌f‌i cials and employees who are part of

the community and have experience in business, law,

health care, academics, or other f‌i elds. However, that

experience creates potential conf‌l icts between their

work and outside activities, and these individuals need

guidance as to what is permissible and what is not. It

is here that codes, opinions, training, and so on, all of

which are part of an ethics program, are valuable.

Ethics principles are, of necessity, vague, and govern-

ment of‌f‌i cials need assistance in trying to understand

them.  is is where ethics regulatory bodies serve their

most important function. A good ethics body of‌f ers

both informal advice to those who inquire as to spe-

cif‌i c circumstances and more formal advice through a

published set of opinions.  is advice function allows

these regulatory bodies to educate the workforce on

the application of the general ethical statutes as they

apply to specif‌i c situations. It is like the courts inter-

preting the statutes of a particular jurisdiction, adding

def‌i nition to the more general language. Beyond

advice, training programs are commonly a part of an

ethics regime, further increasing the understanding of

those subject to the code.

In New York, as in many other jurisdictions, f‌i nancial

disclosure and enforcement are part of the ethics pro-

gram. Disclosure is certainly useful, as it informs the

public of the other activities and f‌i nancial interests of

government of‌f‌i cials and employees. To the extent that

codes are intended to enhance public conf‌i dence in

the integrity of government of‌f‌i cials, disclosure plays

an important role. However, disclosure requirements

will hardly ever result in an enforcement body f‌i nding

a violation of law.

If the assumption is that disclosure will change behav-

ior, the ef‌f ort will fail.  ose who view government

service as a means of advancing their own interests,

despite ethical restrictions, will not hesitate to hide

activities and interests that violate the law. Clearly, if

they are prepared to violate ethical rules with more

What Can Ethics Codes Accomplish?