Commentary: What Can Ethics Codes Accomplish?

Date01 January 2014
Published date01 January 2014
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.
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?

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