Incorporating "brain Science" Into Public Agency Ethics Training

• Jurisdiction: California,United States
• Citation: Vol. 45 No. 2-3
• Publication year: 2023
• Author: Written by JoAnne Speers
• topic: Public Sector Law

INCORPORATING "BRAIN SCIENCE" INTO PUBLIC AGENCY ETHICS TRAINING

Written by JoAnne Speers^*

On January 1, 2022, AB 1234 celebrated its 17th birthday. Among other things, this statute¹ requires that certain local elected and appointed officials receive periodic ethics training. Legislation approved in 2022 extended AB 1234's provisions to certain school officials.² (A similar, but narrower, requirement has been in place for state agencies for nearly a quarter century.³)

Such milestones provide an opportunity for the public law and public policy communities to reflect on what these kinds of policies achieve and where the opportunities might be for further achievements.

This article briefly reviews AB 1234's requirements. It then explores what have we learned in the intervening years about why well-intended individuals fall short of their intention to act consistently with their values. The article concludes with thoughts on how public agency attorneys involved in ethics education might incorporate some of these concepts into public agency ethics training.

AB 1234'S REQUIREMENTS AND IMPLEMENTING GUIDELINES

Enacted in 2005, AB 1234 requires certain local officials to receive ethics training within one year of taking office and every two years after that.⁴ The training must cover both ethics laws and ethics principles.⁵

Shortly after AB 1234's passage, the Attorney General and Fair Political Practices Commission provided guidelines for designing courses consistent with the training law's requirements.⁶ The guidelines explain, for example, what specific laws the training should cover.⁷ The Attorney General guidelines also explain that "ethics principles" are ". . . the manner in which values such as trustworthiness, respect, fairness and responsibility promote public trust in government."⁸ Incidentally, this definition is consistent with ethics literature emphasizing universally shared core values.⁹

As the Fair Political Practices Commission guidelines note, the training can be delivered in segments.¹⁰ The Attorney General guidelines only

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require that there be records of dates of training received and provider identity.¹¹

RETHINKING THE PROBLEM ETHICS EDUCATION ASPIRES TO ADDRESS

IS THE PROBLEM TOO LITTLE INFORMATION OR SOMETHING ELSE?

The premise underlying AB 1234 and other ethics training requirements is a time-honored one: giving people access to good information will help them make good decisions. Put another way, the "problem" ethics education policies have traditionally tried to solve is insufficient information. Public agency attorneys are acutely aware that California's public service ethics laws are myriad and complex.

Helping public servants understand ethics laws and principles is of course a good thing. However, in the intervening years since AB 1234's passage, we have developed a more nuanced understanding of why people fall short of their intentions to make decisions based on their better values and the law.

This deepened understanding is helpful in thinking about the "ethics principles" component of AB 1234 training. It also may shed light on why agency attorneys sometimes encounter resistance to their advice about what the ethics laws require.

THE SCIENCE BEHIND WHY WELL-INTENDED PEOPLE FALTER

Behavioral ethics differs from traditional ethics because it focuses on how humans actually behave instead of how they ought to behave. Although we consider ourselves to be rational and analytic, we have two ways of determining how we react to situations. Sometimes our reactions are based on what psychologists call "system 1" thought processes (fast, intuitive and emotional). Other times, we use "system 2" thought processes (slower, more effortful and deliberative).¹²

Humans operating in system 1 mode have "blind spots" when it comes to perceiving the ethical dimensions of issues.¹³ One dynamic is framing. How an issue is framed can determine what criteria people do (and do not) apply. For example, if someone is framing a decision as a political, budgetary or personnel issue, they can miss the ethical dimensions of a situation.¹⁴

Behavioral ethics research also indicates humans have an unduly positive sense of their own ethicality.¹⁵ Such "overconfidence bias" is an example of a larger set of biases that keep people from acting consistently with their ethical values. (Overconfidence bias explains a threshold challenge for ethics educators: no one thinks they need information on how to be ethical because most participants already view themselves as highly ethical.)

In addition, even when one believes one is being rational, it may be that one's brain is instead trying to justify emotionally and intuitively made decisions. One rationalization that public officials seem to fall prey to is "worthy ends justify questionable means." Officials believe they are in public service to accomplish good things for their community. In order to pursue what they believe are good outcomes, however, they may feel they need to cut some ethical corners (for example, make decisions that help campaign contributors or other benefactors).

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IMPLICATIONS FOR ETHICS EDUCATION AND TRAINING PRACTICE

PROMOTE SYSTEM 2 THINKING ABOUT ETHICAL ISSUES

If ethical decision-making is less under conscious control than previously believed,¹⁶ what is an ethics educator to do? A lesson that behavioral ethics teaches us is that sometimes intuition can serve one well, as when one gets an uncomfortable "gut" feeling about a decision that is inconsistent with one's values. However, the obverse is not always true: the absence of a gut feeling does not necessarily mean that no ethical issue exists.

To promote better decision-making, behavioral ethicists believe that learners must become aware of the cognitive dynamics that can undermine their and others' best intentions to engage in ethical decisionmaking.¹⁷ One scholar describes this as...