Ethics Matter

MARTHA PEREGO, ICMA-CM, is

director of member services and ethics director, ICMA, Washington, D.C. (mperego@icma.org). It’s not unusual when a public official accused of misconduct defends his or her actions by saying that they sought and obtained a green light from their (or their organization’s) attorney. While that defense might be helpful in justifying the official’s actions and decisions, in many cases it will be inadequate to convince others that the actions were appropriate and ethical.

Often times a public official who is accused of ethical misconduct will respond “I didn’t break any laws.” This response is often viewed skeptically in that it is not a denial of an ethical misstep, but only a statement of belief that the alleged misconduct did not rise to the level illegality. This is hardly the standard we will be held to as public officials.

Focusing exclusively on “what is legal” and relying heavily on your attorney’s legal opinion can cause serious problems for public officials wishing to be viewed in a positive ethical light.

Sources of Problems Legal does not always mean ethical. The ethical bar for those in the public arena is much higher than “what is legal.” There are many types of conduct that don’t actually violate the law that is deemed unacceptable conduct from an ethical perspective. In addition to laws, you can be subject to other criteria for conduct, including regulations, codes of ethics/conduct, policies and public and community perception. Attorneys are trained to discern what is legal. While they may also have a broader perspective, you must assume that they will be focusing on evaluating the “legality” of a proposed action.

Your attorney may not fully appreciate your ethical obligations. Each profession has its own ethical obligations and expectations. While your attorney, hopefully, fully understands their ethical obligations as an attorney, they may not understand all of your expectations/ obligations as a manager. They may or may not have a clear understanding of the various expectations you are subject to as a local government professional manager (including your obligations under the ICMA Code of Ethics).

Your attorney may be inclined to tell you what you want to hear. It is not unusual for a city/county attorney to value having a positive and mutually supportive relationship with the chief administrator of the organization

Public Management (PM) (USPS: 449-300) is published monthly by ICMA (the International City/County Management Association) at 777 North Capitol Street. N.E., Washington, D.C. 20002-4201. Periodicals postage paid at Washington, D.C., and at additional mailing offices. The opinions expressed in the magazine are those of the authors and do not necessarily reflect the views of ICMA.

COPYRIGHT 2022 by the International City/County Management Association. All rights reserved. Material may not be reproduced or translated without written permission.

REPRINTS: To order article reprints or request reprint permission, contact pm@icma.org. SUBSCRIPTIONS: U.S. subscription rate, $50 per year; other countries subscription rate, $155 per year. Printed in the United States. Contact: 202/289-4262; subscriptions@icma.org.

POSTMASTER: Send address changes to Public Management, ICMA, 777 N. Capitol Street, N.E., Suite 500, Washington, D.C. 20002-4201.

ARTICLE PROPOSALS: Visit icma.org/writeforus to see editorial guidelines for contributors.

For more information on local government leadership and management topics, visit icma.org. Public Management (PM)

ICMA 777 North Capitol Street, N.E. Suite 500 Washington, D.C. 20002-4201

EDITORIAL OFFICE: pm@icma.org

Ben Anderson, MCI USA 410.316.9866 ben.anderson@mci-group.com Learn more at https://icma-mediakit.com/

800.745.8780 | 202.962.3680 membership@icma.org ICMA

ICMA’s vision is to be the leading association of local government professionals dedicated to creating and supporting thriving communities throughout the world. It does this by working with its more than 12,000 members to identify and speed the adoption of leading local government practices and improve the lives of residents. ICMA offers membership, professional development programs, research, publications, data and information, technical assistance, and training to thousands of city, town, and county chief administrative officers, their staffs, and other organizations throughout the world.

Public Management (PM) aims to inspire innovation, inform decision making, connect leading-edge thinking to everyday challenges, and serve ICMA members and local governments in creating and sustaining thriving communities throughout the world.

they advise. While this is certainly a good thing, this can also influence the type of advice offered. An attorney may be motivated to find a rationale to support what the manager would like to do. This could cause the attorney to “stretch” to provide legal advice supportive of the manager’s proposed actions. In particular, if they don’t determine a specific legal barrier to the conduct, they could underestimate/ understate the other potential pitfalls associated with the proposed action.

You can be part of the problem if you succumb to “selective listening.” It is a natural tendency to “hear what you want to hear.” Your attorney may offer you a variety of thoughts on the ethical question you raise. It can be tempting to focus on the observations or opinions that best match what you want to hear.

How to Address These Challenges Give your attorney “permission” to tell you something you may not want to hear. While hopefully most attorneys don’t need such “permission” to give you their best advice, make it clear that you always want their frank opinion regardless of whether it is favorable to your proposed action. Make it clear to them that you need to rely on their unvarnished opinion and that telling you “what you want to hear” will not be helpful to either of you. Having a history of “shooting the messenger” when given advice that you find disappointing is not useful when attempting to get the best possible advice from your attorney and your staff. Make it clear to your attorney that you want their best legal advice as well as their assessment of other potential impacts that could come from your action.

Make your attorney aware of all your ethical obligations. It can often be helpful for the attorney to understand your professional obligations relating to ethical conduct that goes beyond the law. For example, while the attorney may not provide you advice on how to conform to the requirements of the ICMA Code of Ethics, familiarity with the Code can help create context as they provide you advice on your proposed actions.

Making it clear to your attorney that you view your obligations to extend beyond the “floor” of the action being legal can make it clear that simply passing that test is not sufficient. Informing them of the requirements of the ICMA Code of Ethics and other criteria can help them understand the broader context of your obligations.

Listen carefully and ask probing questions. It is critical to avoid “selective listening.” Listen to and think about all that your attorney has to offer, even those opinions or observations you would rather not hear. Ask probing questions and provide feedback to the attorney to make sure that there is no misunderstanding regarding his or her opinion. Give as much weight to the points raised that are not supportive of a proposed action as you do to those supportive of what you would like to do. You shouldn’t take much comfort from a superficial conversation with your

2022–2023 ICMA Executive Board

PRESIDENT Jeffrey Towery, ICMA-CM City Manager McMinnville, Oregon

PRESIDENT-ELECT Lon Pluckhahn, ICMA-CM Deputy City Manager Vancouver, Washington

PAST PRESIDENT Troy Brown, ICMA-CM City Manager Moorpark, California

VICE PRESIDENTS

Chris MacPherson Former Chief Administrative Officer Fredericton, New Brunswick, Canada Rebecca Ryan General Manager Queanbeyan-Palerang Regional Council, New South Wales, Australia Colin Beheydt City Manager Bruges, Belgium

Victor Cardenas, ICMA-CM Assistant City Manager Novi, Michigan Corri Spiegel, ICMA-CM City Administrator Davenport, Iowa Michael Sable, ICMA-CM Assistant City Manager Bloomington, Minnesota

Diane Stoddard, ICMA-CM Assistant City Manager Lawrence, Kansas Kenneth Williams, ICMA-CM candidate City Manager Beaumont, Texas Dave Slezickey, ICMA-CM City Manager Kingfisher, Oklahoma

William Fraser, ICMA-CM City Manager Montpelier, Vermont Scott W. Colby Jr. Assistant Town Manager Windsor, Connecticut Dennis Enslinger, ICMA-CM Deputy City Manager Gaithersburg, Maryland

Nate Pagan, ICMA-CM City Manager Owensboro, Kentucky Valmarie Turner, ICMA-CM Assistant County Administrator Loudoun County, Virginia Jorge Gonzalez, ICMA-CM Village Manager Village of Bal Harbour, Florida

Roxanne Murphy Operations Department Administrator Nooksack Indian Tribal Government, Bellingham, Washington Pamela Antil, ICMA-CM City Manager Encinitas, California Jessi Bon City Manager Mercer Island, Washington ICMA CEO/Executive Director Marc Ott

Director, Equity & Lynne Scott lscott@icma.org Social Justice and Membership Marketing Managing Editor Kerry Hansen khansen@icma.org Newsletter Editor Kathleen Karas kkaras@icma.org Graphics Manager Delia Jones djones@icma.org Design & Production picantecreative.com

FPO-FSC Logo

on “what is legal” and attorney on an ethical relying heavily on your question. Make sure attorney’s legal opinion you fully understand can cause serious the attorney’s opinion. And if his or problems for public her rationale is not officials wishing to be clear or compelling, viewed in a positive dig deeper. In addition, confirm ethical light. that your attorney feels comfortable with their position, even if they needed to explain it publicly, including to the press and/or at a public meeting.

Get objective perspectives. It is often very useful to obtain the advice of other professionals who have no direct involvement in the issue. Additionally, it would not be unusual for one or more of your professional peers to have dealt with the same (or similar) question previously. Getting an opinion from someone who does not have a direct interest in the outcome of the matter can provide a valuable perspective. This type of “nothing to lose or gain” advice can help supplement your assessment and the opinion of your attorney. Conclusion The advice of your or your agency’s attorney can be a critical component in your ethical decision making. However, it is not always the final answer. There may be times when we really would like to be given “permission” (or at least justification) for an action we are considering. We can seek legal justification in order to feel better regarding a decision we are contemplating. While it is obviously important to obtain legal advice regarding issues of law, it is very risky to take undue assurance in the fact you have been given a legal green light.

Ultimately, you are responsible for your conduct. As a public official, stating that someone else said it was OK (even if that someone else is an attorney) is not good enough. So while it may be a good start to have your attorney advise that what you have done or plan to do is legal, that is not sufficient. You must determine what it is appropriate, ethical, and reasonable from other’s perspectives in order to feel confident about your actions.

While I had the good fortune in my public management career to work with excellent city attorneys who not only were well informed regarding laws, regulations, rules, and policies effecting our work, but had a similar sense of what was the “right thing to do” in regard to ethical questions. We shared a similar set of values on this topic. They were my partners in helping keep our organizational ethical missteps to a minimum. However, no two individuals will always view complex and “gray area” challenges in the same fashion.

Regardless of how good a working relationship you may have with your legal counsel, never forget that there is only one person ultimately responsible for your ethical decision making—you. UPCOMING ICMA EVENTS

icma.org/events

FREE COACHING WEBINAR! EVERYONE HAS PERSONAL CHALLENGES: HOW TO BALANCE PERSONAL REQUIREMENTS AND ORGANIZATIONAL DEMANDS

We all want to support our teammates; however, it can be difficult when that teammate is never there to help carry the load. We all struggle to ensure that our personal life does not impact our professional life, but it seems consistently more difficult to separate the two. Caregivers get calls to pick up a sick child; an employee that owns rental properties gets a call about a pipe bursting; the boss needs to have knee surgery and is out for two weeks. These challenges are a part of life; we must accept them and determine how to best work through them if we are to maintain a successful team.

Register for this FREE coaching webinar on November 17 to learn about different perspectives and how to best manage team members based on their unique situations. Can’t make the live webinar? Register anyway to receive a copy of the recorded presentation.

DIDN’T MAKE IT TO COLUMBUS? GO DIGITAL!

Register for ICMA Digital for live streaming of all keynotes and selected educational breakout sessions, on-demand access to all livestreamed content, and live tech support. Team/ group discounts available for 5 or more attendees. Register at conference.icma.org/2022-icma-digital/

COURAGEOUS CONVERSATIONS

Real talks providing insight about the experiences of marginalized and underrepresented persons in local government leadership. Access Recordings at icma.org/living-history.

VOICES IN LOCAL GOVERNMENT PODCAST

ICMA’s Voices in Local Government podcast tells stories, inspires ideas, celebrates progress, and acknowledges challenges faced by local government managers and staff in serving the public. icma.org/podcasts

WANT TO BE SPOTLIGHTED BY ICMA?

If you are an ICMA member, we want to hear what’s new in your career or organization. All members are welcome to submit, from CAOs to students. Please complete the form at icma.org/ spotlight-members. Check out the November Member Spotlight with Dr. Mitchell Berg, associate director for the University of Minnesota Crookston Veden Center for Rural Development and former city administrator for Mahnomen, Minnesota, on the inside back cover of this issue.