A Question of Ethics
Karl Thoennes
Recurrent Themes
Although practical, individual ethical issues are certainly interesting and important – like the debates over gift policies or whether we have an ethical obligation to screen attorneys’ potentially improper phone calls to judges – on a broader level I’m beginning to think that almost all the ethics debates and issues fall into just a few general categories or themes. I promise I won’t launch into a dissertation on my emerging universal theory on the taxonomy of all ethical and moral controversies (maybe I’ll save that for a long-winded PhD project after retirement). I promise too that I’ll come back to earth in the latter part of this column with a real-world hypothetical dilemma. For a few minutes though I’d like to ask for your patience as I make some observations about a trend I sense in public ethics conflicts lately.
It’s the type of debate that is the most difficult to reconcile and causes the greatest conflict and strain. I’m talking about the debate and tension between public and private ethics, between public and private morals, public and private convictions, beliefs, and duties.
Remember the court clerk who objected to handling abortion clinic trespass cases, or the court employee who thought the death penalty is immoral and objected to handling death sentence paperwork. I was originally inclined to make whatever accommodation was reasonable for those personal convictions, but as you might recall, almost every colleague who commented on those scenarios firmly – sometimes even sharply – asserted that court employees and public officials in general ought to fulfill our obligations to the law and the public without injecting our personal convictions into our public duties, and without expecting public institutions to accommodate those personal beliefs.[1] Others noted that case processing or administration is primarily ministerial, not discretionary, so personal responsibility – or culpability – did not attach. Others argued that public sector work is entirely voluntary, and employees may choose to leave their public sector jobs at any time if they find the moral conflicts intolerable. Finally, some commentators also pointed out that those conflicted employees knew or should have known what the law and expectations were before accepting their jobs, and should not have accepted them if they found the compromises intolerable.
A Rising Trend?
I think all those lines of reasoning do help our public institutions function smoothly even in the midst of heated debate and conflicting personal convictions. What I seem to notice however, is that the issues that fall into that most difficult category (that is, public/private ethics conflicts) are becoming more and more frequent, and are far more difficult to resolve than the other types.
Just as family court staff might develop an overly pessimistic view of trends in family conflict and divorce, I wanted to be careful that my work on these columns hasn’t produced a similar pessimism about trends in ethics conflicts and social tension levels. At first I was at a loss for an objective measurement of something as elusive as conflict levels between personal and public ethics and convictions, but I have to thank Brigid Murphy, Drug Court Coordinator in St. Cloud, for indirectly suggesting one possible means among many. Consider these statistics from the Equal Employment Opportunity Commission on religious discrimination complaints in the workplace.[2] (This is probably the first and only time you’ll find graphs in an ethics article.) Between federal fiscal years 1996 and 2003, religion-based charges filed with the EEOC rose 62%, from 1,564 cases in ’96 to 2,532 cases in ’03.
Monetary awards through the EEOC – which exclude amounts recovered through litigation – more than tripled in that same period, from around $1.8 million in ’96 to $6.6 million in ’03, with a high of $14.1 million in ’01.[3]
We can address – and often settle pretty clearly – debates about gift limits or nepotism with well-crafted codes or canons. Even if certain court managers disagree about certain gift limits or whether we should accept those Christmas cookies or vendor trinkets, most of us would probably understand the rationale for a different standard and move on. On the other hand, it is far more difficult to expect collegial flexibility and deference in deciding whether a single one of our clerks, who comes to work after an Ash Wednesday service, should be compelled to remove the ashes before taking his place at the court’s public service counter. As another example, if ethics codes discourage activity in discriminatory organizations, should employees be expected to avoid involvement in the Boy Scouts?[4]
James Giordano, Analyst with the Oregon State Court Administrator’s Office of Court Research and Services, commented on these types of questions a couple years ago. In summary, James pointed out that when private convictions of employees clash with law or public policy, government institutions can respond in one of three ways. They can refuse to accommodate any private or personal convictions; they can make distinctions and accommodate some and not others; or they can attempt to somehow accommodate them all. None of the choices (especially the last) seems to go very far in resolving the tension that is building in this area.
Citizens are probably not going to march on our state Supreme Court buildings over the design of fair and ethical recruitment practices for example, as important as those might be. On the other hand, when it comes to that far more difficult balancing of public and private ethics and convictions, the increasingly frequent conflicts already have and will likely continue to indeed literally draw angry crowds to the courthouse steps. Two recent high profile examples come quickly to mind.
Former Alabama Chief Justice Roy Moore persistently asserted that a monument of the Ten Commandments was appropriately placed in rotunda at the Alabama Supreme Court, and that he was compelled to acknowledge God in the discharge of his official duties. As you may recall, a federal court disagreed, and Chief Justice Moore was ultimately removed from his position in November 2003. That high-profile situation illustrated the conflicts between public and private ethics, morals and duties pretty clearly.
More recently and with similar intense media attention, some officials in California took it upon themselves to construe certain state statutes as unconstitutional, and issued marriage licenses to same-sex couples. In early 2004 the Court directed they stop the practice pending further proceedings. Other jurisdictions have even initiated criminal prosecutions against government officials who issued such licenses, many of whom appealed to higher constitutional law or principles. For some Clerks of Court and Court Administrators our positions include performing wedding ceremonies. If the law or the courts were to sanction same sex marriage, should those who object to such unions be able to refuse to perform the ceremonies? I note that the Town Clerk’s Association in Massachusetts has asked Governor Romney for an opinion as to whether justices of the peace may decline to perform such ceremonies.[5] By the time this issue is published, perhaps the next chapter will have been written in that controversy.
Another Public/Private Distinction: Sued in an Official Capacity…
So far this article has centered on public and private distinctions. Along those same lines, this hypothetical scenario centers on public and private distinctions among friends and colleagues. You may also note some parallel to the controversy that arose in early 2004 over a hunting trip taken by Supreme Court Justice Scalia and Vice President Cheney (and others) while a case was pending against Cheney in his official capacity -- not personally.[6]
Mixing Business and Pleasure?
You might remember Bob, who used to be court administrator of a mid-size court in the state of New Columbia. After successfully navigating his way through more ethical dilemmas on the trial court level than any ordinary human, he has now been promoted to Circuit Administrator over five counties in the state. He is appointed by and serves at the pleasure of the judges of the entire circuit. Bob is a state employee, like the judges. Bob’s office is located in the courthouse in the largest city in the circuit, and he retains many of the warm collegial friendships he built while he was Clerk of Court.
New Columbia enjoys a pretty tight knit legal community, and some lawyers, court staff, and even a few judges have joined together in the past for frequent social and public service projects, like building a Habitat for Humanity house for a disadvantaged family. Through a number of those projects, and certainly just through years of working together closely, Bob has developed and still maintains some close personal relationships with a few judges, attorneys, and court staff. Judge Garcia performed Bob’s daughter’s wedding, and Bob’s closest neighbor happens to be Tim Roberts, a county attorney. Their sons attended the same school and played hockey in school tournaments together.
Like many court administrators and other public agency managers, once in a great while Bob is also sued in his official capacity. This year the local judges and one of the counties in the circuit have come to an impasse over funding for court facilities, despite long negotiations in which Bob participated. The county has filed suit, naming Bob as one of the defendants – in his official capacity, of course. Tim Roberts, Bob’s close neighbor, represents the county bringing the suit. The conflict leading to the impasse and the suit itself has generated a lot of attention in the Evening Clarion, the county’s local newspaper.
Each summer the local legal community – judges, lawyers, court staff – participates in a weekend-long charity golf tournament at the Twisted Oaks Country Club. Bob reasons that while court employees and especially judges are careful about their outside activities and social relationships, that friendship is friendship and business is business. Members of the legal community certainly clearly understand the ethics code. Bob is confident that County Attorney Tim Roberts would never mention the case to Bob or Judge Garcia as their foursome waited for the next group to tee off. Members of the court and legal community socialize together relatively freely precisely because they understand the ethical environment under such circumstances, and will or should act accordingly. If Bob or the judges isolated themselves every time a sensitive case were pending, they’d have no social lives and friendships. Still, Twisted Oaks Country Club is located in the county filing the suit, and one of the Evening Clarion reporters may be hanging around…
Should Bob play the golf tournament this year?
I eagerly welcome your comments, however brief or informal. Your comments give this column a real vitality. You can reach me here:
Karl Thoennes, Administrator
Stearns County District Court
725 Courthouse Square
St. Cloud, MN 56303
320-656-3620, Fax: 320-656-3626
[1] In defending my position for personal moral accommodation I usually cited examples from death penalty states where prison employees are not compelled to participate in executions. For example, the rarely-used firing squads in Utah used volunteer marksmen; coincidentally I noticed that Utah Governor Walker signed a bill on March 16, 2004 to eliminate firing squads as an execution option in that state.
[2] Of course the data I present here, and the numbers I used to draft these charts are explained in far more detail in the source EEOC report, which can be found at www.eeoc.gov/types/religion.html.
[3] I haven’t yet found an explanation for that sharp spike in EEOC damage awards in FY 2001. Some writers attributed it to anti-Muslim cases after the terrorist attacks, but the federal fiscal year starts in October so it seems unlikely that post-September 11 claims would have been filed and resolved that quickly.
[4] Of course the Boy Scout question is not theoretical, as many of you may recall. For example, those of you in California may remember the State Supreme Court’s amendment to the commentary to the Code of Judicial Ethics in response to the issue. The Court’s press release of June 18, 2003 can be found here: www.courtinfo.ca.gov/presscenter/newsreleases/NR37-03.HTM
[5] Confusion at Massachusetts town clerks offices as marriage deadline approaches. Associated Press, March 2, 2004. Interestingly, even though the Netherlands legalized same sex marriage over two years ago, the question as to whether civil wedding officials may refuse to perform them is still unresolved; see Where gay unions are legal, what lessons? Christian Science Monitor, November 20, 2003.
[6] As you may recall, the Sierra Club filed a motion that Justice Scalia recuse. The Justice took the unusual step of publishing a 21-page memorandum in response. Even if you wouldn’t normally be inclined to read Justice Scalia’s writing, the historical review portion of the memo especially makes for fascinating reading. As of the time of this writing you can find a copy here: news.findlaw.com/hdocs/docs/scotus/chny31804jsmem.pdf