Yes, No, Maybe So | Is It Better to be Ethical or to Appear Ethical

1/15/2019

Illustration of leaders
By Nicholas Birdsong

If something looks like a duck and quacks like a duck, then it probably is a duck.

But what if it were a talented goose in disguise? Would it make any difference to a person who likes watching ducks? Wouldn’t some avid duck-watchers be more disappointed by an ugly duck than a deceptive goose?

If those seem like odd questions, look at them as a thought experiment regarding the importance of perception in the con­text of government ethics. A well-function­ing government relies on the public’s faith and perception of legitimacy. Legitimacy, particularly in a representative democ­racy, requires the perception that the state and its leaders are acting in the public interest.

Government ethics oversight encour­ages righteous behavior by revealing and punishing officials who abuse positions of trust. Consequently, ethical rules strengthen the state by enhancing legiti­macy in the eyes of the public.

But, are we a bit like the duck-watch­ers above who care more about the view than the truth? Does it matter more that government appears ethical than it actu­ally be ethical? To some, this question may seem counterintuitive, even offensive. Modern ethicists often critique appear­ance ethics by citing the 18th-century novel “Tom Jones.” The villain of the story manipulates the “ornaments of decency and decorum” to appear ethical and ma­lign the genuinely honorable protagonist. The story demonstrates how this sort of “ethics” can be, itself, unethical.

Few would describe attempts to ad­dress the appearance of impropriety as unethical, though such rules have been challenging to implement in non-legisla­tive contexts. The American Bar Associ­ation, for example, adopted a model rule in 1932 based on a biblical passage that forbade “all appearance of evil.” The rule was removed soon after because it was too vague to be enforced, unpredictably and subjectively applied, and often re­dundant because of more specific ethical prohibitions.

Critics have suggested replacing general appearance-of-impropriety prohibitions with rules that forbid specific actions that tend to appear corrupt. Revolving-door prohibitions, for example, provide a bright-line rule against state employ­ees and officials leaving public service to immediately go to work as lobbyists. The practice is not inherently unethical or contrary to the public interest, but it can create the perception and increase the risk that well-funded special interests are able to unethically buy influence.

On the other hand, rules using an ap­pearance-of-impropriety standard can be more effective at preventing, revealing and punishing instances of actual miscon­duct than those limited to what’s banned specifically by statute or regulation. An ethics board could avoid the arduous task of proving a corrupt act occurred and instead simply demonstrate how the cir­cumstances appear unethical.

Proper appearances may also matter more when applied to public service than the context of the ABA’s rules for private practice attorneys, justifying broader restrictions. An objective “reasonable, well-informed person” standard might help avoid the subjective and unpredict­able application of appearance-based standards.

Being ethical is likely more important than appearing ethical, but appearances can help inform the development of ethics rules or be used as a standard of conduct. A middle road might incorporate aspira­tional rules that encourage avoiding the appearance of impropriety while stopping short of naming consequences for vio­lating them. Even those most wary of the darker side of appearance ethics would likely see little harm in aspiring to avoid actions that appear unethical.

After all, as in the duck test, if something looks unethical and sounds unethical, then it probably is unethical.

—Nicholas Birdsong, policy associate, NCSL Center for Ethics in Government

Is an ethical dilemma keeping you up at night? Let Nicholas know.

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