This document was prepared by the Office of the Merit Protection Commissioner.
(This page has also been released as The Merit Protection Commissioner and ethical decision making 1)
Merit Protection Commissioner
Thank you for inviting me to speak to you today on the very important and topical issue of ‘The Merit Protection Commissioner and Ethical Decision Making’. I have been asked to be bold and provocative and provide an approach that will challenge your traditional way of thinking about ethics. These are high expectations that I will do my best to fulfil and I do hope that you leave this session with a different perspective on some of the ‘ethical’ issues currently facing the Australian Public Service (APS).
It is a very exciting time to be the Merit Protection Commissioner (MPCr) and it coincides neatly with the Government’s commitment to enhancing the integrity of the APS. For those of you who need a little reminder about my role, the Office of the Merit Protection Commissioner is an independent statutory position established under section 49 of the Public Service Act. It provides an independent, impartial and professional:
- scheme for statutory reviews of action;
- merit based, non-appealable recruitment services;
- other related services; and
- supports adherence to the APS Code of Conduct.
In providing these services, I seek to:
- advocate a proactive, preventative approach that encourages ongoing, transparent and timely communication as the basis for positive, respectful and professional working relationships; and
- balance the rights and responsibilities of the individual, the organisation and the wider APS through the consistent application of principles of merit and procedural fairness to employment-related decisions.
This approach to the work of the MPCr is consistent with the explanatory memoranda that accompanies the Public Service Act 1999 and is put into practice through the Public Service Regulations and the Public Service Commissioner’s directions. That is, wherever possible to deal with a matter as it arises or in as timely a manner as possible; to be open to alternative positions and let everyone have a chance to have their say; and, to keep people informed and provide feedback.
As you can see, my role fits very nicely with the Government’s integrity agenda and in particular those under the heading of ‘separate roles and responsibilities of Government and the public service’ through:
- greater transparency in decision making by Government and the public service;
- improving ethical advice for public service decision making; and
- enhancing frameworks for public service accountability.
The Government has moved very quickly to develop and put in place strategies to enhance ethics and accountability in the APS, such as the Lobbyists Code of Conduct, and the register of ‘third parties’, the Ministerial Advisers’ Code and the work to date on whistleblowing and freedom of information. The Australian Public Service Commission has been working to revise and enhance its guidance on APS Values and Code of Conduct issues and encouraging the integration of ethics training into learning and development activities at all levels.
I have a particular interest in improving ethical decision making as my review work allows me some insight into the workings of agencies. It is unfortunate that so many situations originate through a lack of trust and positive interpersonal working relationships which then leads to misunderstanding and misrepresentation about decisions that are made. In my opinion, the basis of a professional and independent APS that provides frank and fearless advice is a core set of ethics that is clearly understood and consistently put into practice. I am not talking about the ‘ethics’ of a government policy, I am talking about the standards expected of the APS—the Values and the Code of Conduct—and how to use them to make ethical decisions in the management of the APS and in personal conduct.
So, let’s get back to basics with Philosophy 101 and a very quick history lesson. The words ‘morals’ and ‘ethics’ have their origins in the languages of Greek and Latin and are fundamentally about acting in ways that are ‘good and right’. While we could have a philosophical discussion about the nuances, my summary is that:2
- ethics is usually associated with theoretical aspects of how you should behave;
- morals or values are about the inner judgments about how a person actually behaves;
- integrity is when there is a consistent set of behaviours core to their being—‘what you see is what you get’; and
- hypocrisy is the opposite of integrity—literally ‘two faced’.
For me, it is really important to understand when we use these words that someone’s values are not the same as their ethics. A useful perspective in understanding the distinction is that someone may place a great deal of importance on their health, their family, their wealth, but their importance is a reflection of the personal value placed on them, rather than an inherent ethical value.
I really like the step up or down aspect of integrity and hypocrisy. That is, someone may show an understanding of ethics or morality with individual responses, but it is only over time and in various situations that you can really test if someone has integrity and if they behave in a way that is consistent. A person with integrity is trusted because ‘what you see is what you get’; you know where you stand with someone. The opposite of integrity is hypocrisy where people are literally ‘two faced’; they say one thing and do another, or change their story to manipulate the audience.
Values and ethics should not be confused with good manners, etiquette or conventions. While they may function as values, in that to be well mannered can be an expression of respecting others (think of the APS Values and Code of Conduct requiring public servants to treat everyone with respect and courtesy), generally good manners and etiquette promote productive respectful workplaces. They may provide the oil to grease efficient workplaces but are not values in a philosophical sense.3
You won’t be able to graduate from Philosophy 101 unless I also outline the five common sources of ethical standards.4 There will be a test on them later:
- utilitarian—increasing the mix of greater good while minimising the amount of overall harm;
- rights—intrinsic respect for the human being to be treated as an end in itself rather than to be used or manipulated as a means to other ends;
- fairness or justice—treated equally/equitably;
- common good—contributing to society so that quality shared resources are available to everyone; and
- virtue—development of individual character values (honesty, tolerance, courage, self- control, fidelity).
Each approach gives us important information to consider. The St James Ethics Centre puts these approaches into more everyday terms by asking the following questions:5
- would I be happy for this decision to be on the public record (my family knew what I’d done)?
- what would happen if everybody did this?
- how would I like it if someone did this to me (my child or parent)?
- what will this proposed course of action do to my character or the character of my organisation?
- have I considered the possibility that the ends may not justify the means?
None of these approaches are right or wrong, they are just different angles from which to look at an issue or situation. Another way of looking at this is to think about some of the rationalisations that people make to justify their actions, or inactions. This quote from the Josephson Institute of Ethics sums it up:6
People often have to make decisions under economic, professional and social pressure. Rationalization and laziness are constant temptations.
The Institute identifies some of these rationalizations as:7
- if it’s legal and permissible, its proper;
- it’s all for a good cause;
- I can still be objective;
- it doesn’t hurt anyone;
- everyone’s doing it;
- it’s ok if I don’t gain personally; and
- I’m just fighting fire with fire.
Decision making literature often relies on ‘rationality’ as being the hallmark of good decision making—obtain information, assess for bias, identify options etc—and minimizes or discredits the role of emotion, often associating emotion as the opposite of reason. Studies have found however that emotions such as empathy and guilt are essential in promoting moral behaviours and inhibiting immoral behaviours. Chen-Bi Zhong in his article, ‘The Ethical Dangers of Rational Decision Making’, argues that while some emotions “can be a source of bias, others can serve as an important inhibitor of immoral behaviours such as cheating and aggression.”8 We need to include all sources of information—the rational and the emotional—into our decision making if we are to make good decisions.
Time critical, emotionally charged situations and the pressure to take shortcuts and cut corners are common across most working environments. What differentiates the public and private sectors in this area is the multidimensional aspects of the stakeholder interests and the use of taxpayer funds that means there will always be ‘winners’ and ‘losers’. Putting it simplistically, there is a relatively finite amount to go around and to increase a benefit to one member of society necessarily requires decreasing it from another.
People often think that ethical dilemmas are the ones to do with obvious fraud and corruption, when in fact I don’t consider this is the case. For me, ethical dilemmas don’t come tied up with pink bows and neon lights saying ‘I’m an ethical dilemma’, they are much more subtle and insidious than that.
I like the work by Rushworth M Kidder, an American ethicist who sums this up in his book How Good People Make Tough Choices: Resolving the Dilemmas of Ethical Living when he makes the following statement:9
The world unfortunately, faces plenty of right-versus-wrong questions. From cheating on taxes to lying under oath, from running the red lights to inflating the expense account… the world abounds with instances that, however commonplace, are widely understood to be wrong. But right-versus-wrong choices are very different from right-versus-right ones.
…Two shorthand terms capture the differences: If we call right-versus-right choices ‘ethical dilemmas’, we can reserve the phrase ‘moral temptations’ for the right-versus-wrong ones.
I think this is an excellent summary of the issue and firmly places the common fraud and corruption issues as exactly that—black and white, fraud and corruption—they are not ethical dilemmas, they are moral temptations. As public servants, we need to be able to make that distinction and widen our understanding of ethics and integrity and understand the effect our decisions have on other people. In my opinion, ethical dilemmas are those that require a choice, a conscious decision regarding where we position ourselves along a continuum and, as public servants, this includes the issues to do with balancing stakeholder and policy considerations.
Kidder argues that ethical dilemmas are rooted in our core and universal set of values:10
- Truth versus Loyalty;
- Individual versus Community;
- Short term versus Long term; and
- Justice versus Mercy.
To give some practical examples of these continuums:
- truth versus loyalty (for example, being honest when you know this will negatively impact on someone to whom you consider you owe loyalty);
- individual versus community (for example, right to privacy regarding a medical condition and the need for others to know in order to manage an epidemic);
- short term versus long term (for example, financial and employment impact of emissions carbon trading and long term environmental sustainability);
- justice versus mercy (the example of a good employee who makes a serious mistake— should it be used as a punishment or a learning experience?).
What he is saying is that there are no right and wrong answers, just a balancing of ‘where’ the decision is made along the continuum in a particular circumstance with the information available to you at the time. One thing that strikes me is just how many shades of grey there are!
I want to pose some situations, adapted from Kidder, which may or may not have a traditional ethical dimension to them and ask you to consider them from this new base:
- It is right to extend equal social services to all, without regard to race or ethnic origin— and the right to pay special attention to those whose cultural backgrounds may have deprived them in the past;
- It is right to resist importing products made in developing nations that impact on the environment—and right to provide jobs, even at low wages, for citizens of those nations;
- It is right to support the principle of creative freedom in a photographic exhibition—and right to uphold the community’s desire to avoid displaying pornographic or racially offensive works.
Don’t they sound familiar? These are tough scenarios and yet we can relate to them as we see similar dilemmas play out on a regular basis with no right and wrong answer, just a continuum of decision points. Being a public servant can be tough as we deal with the abstract. As Deidre O’Neill, academic director of the Executive Master of Public Administration (EMPA) Program at the Australia and New Zealand School of Government (ANZSOG) states:
The accountability requirements of the private sector are typically ‘the bottom line and shareholders, but in the public sector things are not nearly so straightforward—there are a whole lot of stakeholders who make claims, are deeply interested, and are affected by the decisions that are made. The environment is so different…’ 11
For me, the classic contemporary example is the debate over the environment—short term versus long term—which 18 months ago was relatively straight forward as a priority. The environment and our future sustainability was a key election platform with the majority of Australian’s seemingly supportive of a high target in a carbon emissions trading scheme that required industry to pay a considerable cost to continue to discharge into the environment. The ‘facts’ remain the same, but today’s debate is now in a different continuum—about the need to maintain and sustain employment in those industries—individual versus community. The global economic crisis has raised other contemporary issues especially from an ethical perspective. For example, the debate has moved from whether or not it is legal and technically correct to pay performance bonuses to the executives of companies now being bailed out by governments to, is it ‘right’ to do so?
Was the earlier position so wrong? Was there some flaw in the rational, logical decision making process? No, there is no right or wrong answer, the debate has just moved along the continuum and reflects changed circumstances or as Zhong may put it, includes a better balance of rational and emotional factors. Public policy is like that, it gets complicated when different right versus right aspects get overlaid and we have to find a way of balancing the various aspects —something no private sector operative has to deal with to the same degree as, usually, they only have to represent the interests of one party, and usually only one, on one continuum—we have to ensure that all interests, including the marginalised are at least given the opportunity to be heard. While acknowledging I am over generalising, some private sector organisations that badge themselves as ‘ethical’ or ‘green’ are often referring to the consistency of their internal policies and objectives and not necessarily to the issue of balancing stakeholders with polarised interests and requirements on a regular basis; the right versus right issues.
This awareness of continuums is a really interesting way of thinking about decision-making more generally as well, and helps to explain for me some of the other inherent tensions and ebbs and flows in the types of work we undertake. It puts the cyclical nature and inherent tensions of centralisation and decentralisation, cooperation and competition, theory and practice and, regulation and responsiveness in some context. The different types of work undertaken in the APS—policy, service delivery and corporate/administrative—also have their own inherent tensions. Think about the following scenarios and work out the continuums:
- It is right to comply with a Ministerial direction not to discuss a matter with a colleague—and right to maintain adherence to overall government policy outcomes;
- It is right in developing and implementing a policy or programme to base it on practical, local experience—and right to use funding arrangements to require national standards;
- It is right to impose compliance to technical rules, requirements and standards—and right to not delay or be considered a hindrance to providing a responsive service.
All decisions, both large and small, benefit from the questioning of assumptions and the assessment of how this scenario/decision is similar and different to previous situations—past solutions may not be applicable if there has been a fundamental shift in a key aspect, such as a change in government policy, expectations of new Ministers or, public expectations.
This time to pause and reflect is vitally important and requires self awareness and resilience at all levels in the APS but particularly in our leaders as role models. The insights required include an ability to look past short term requirements and consider longer term consequences and impacts, and to do this from a variety of perspectives and continuums. This ability is developed over time with exposure to a wide variety of situations and environments, experience and critically, a supportive culture.12
Another area of inherent tension for a public servant in the APS is the inter and intra tension between APS Values. Reconsideration of the appropriate balance may also occur when there is an incompatibility between the APS Values and personal (private) values. This situation is most likely to arise in the context of being apolitical, impartial and professional in performing day to day functions, but may also arise in other circumstances.
The unique legislative base of the APS Values enables the APS, on the whole, to readily move between the institutional and the individual ethics in our relationships with the government and the parliament, the public, the workplace and personal behaviours. The APS Values are equally weighted and require appropriate balance. As the Commission states in Being professional in the Australian Public Service:
Overemphasis on one APS Value or group of APS Values can have the effect of undermining others. No APS value should be pursued to the point of direct conflict with another.
This balancing act requires ongoing adjustment and fine tuning as continual improvement, the reform agenda, government priorities and/or government itself changes.13 As already argued, very few decisions are black and white.
Luckily for Australian public servants, some tools have been developed to assist in the decision making process. The Australian Public Service Commission has developed a decision making model in the form of the easy to remember acronym REFLECT.
1. REcognise a potential issue or problem
2. Find relevant information
3. Linger at the ‘fork in the road’
4. Evaluate the options
5. Come to a decision
6. Take time to reflect
What this tool is really asking you to do is:
- Ask yourself
- Do I have a gut feeling that something is not right or that this is a risky situation?
- Is this a right vs right or a right vs wrong issue?
- Recognise the situation as one that involves tensions between APS Values or the APS and your personal values.
- Find relevant information
- What was the trigger and circumstances?
- Identify the relevant legislation, guidance, policies (APS-wide and agency-specific).
- Identify the rights and responsibilities of relevant stakeholders.
- Identify any precedent decisions.
- Linger or pause to consult supervisors, managers, respected colleagues, peers or support services (retain privacy)
- Talk it through, use intuition (emotional intelligence and rational processes), analysis, listen and reflect.
- Evaluate the options, identify consequences, look at processes to identify risks
- Discard unrealistic options.
- Apply the accountability test—public scrutiny, independent review.
- Be able to explain your reasons/decision.
- Come to a decision, act on it and make a record if necessary
- Take time to reflect and review
- How did it turn out for all concerned?
- Learn from your decision.
- If you had to do it all over again, would you do it differently?
Personally, I find this tool easier to remember than the 5 ethical frameworks I outlined as part of Philosophy 101—I told you you would need to remember them to graduate… It doesn’t matter how I work them, I just don’t get an acronym from Utilitarian, Rights, Fairness/Justice, Common Good and Virtue, but if you think about it, the concepts are embedded in the REFLECT model and are easier to remember!
For me, Kidder’s ‘right versus right’ concept combined with the REFLECT model gives us both a new way of looking at, and understanding our environment, and a practical tool to help us as we venture forth. Unfortunately the environment we operate in is not static and there are emerging challenges on the horizon such as:
- significant increased lateral movement into the APS, including at leadership levels. These recruits will need to gain an understanding of, and an ability to comply with, the particular ethical standards and expectations of the APS which can be quite different to other jurisdictions;
- new technologies and more diverse options for communicating with stakeholders—Youtube, Wikipepdia, Facebook, blogs. These types of media raise new ethical problems: the line between private and public comment is becoming increasingly blurred;
- ethical failure in other public sector jurisdictions (WA lobbyist, Wollongong City Council) and the private sector (ENRON, HIH, Andersens), to name a few, have increased the focus on probity and organisational ethics; and
- finally, there is a potential tension between stakeholder expectations, on the one hand, of responsiveness and efficiency and on the other, public servants adhering to strict accountability processes.
Thank you for the opportunity to speak with you today. I do hope I have fulfilled my mandate and that you leave today having had the traditional way of thinking about ethics challenged and a different perspective on some of the ‘ethical’ issues currently facing the Australian Public Service. If you have queries or would like to know more about the work of the MPC you may be interested in a series of brochures available on my role and functions and the Australian Public Service Commission has an excellent series of publications on a range of related topics including those listed below:
- APS Values and Code of Conduct in Practice: a guide to official conduct for APS employees and agency heads - A practical reference guide to help employees understand the application of the APS Values and Code of Conduct.
- Respect: promoting a culture free from harassment and bullying in the APS - A good practice guide that sets out steps for promoting a culture free from harassment and bullying in the APS.
- Handling misconduct - A human resource practitioner’s guide to the reporting and handling of suspected and determined breaches of the APS Code of Conduct.
- Embedding the Values - A guide for senior managers to assist them to embed the APS Values and Code of Conduct into their agency culture and into systems and procedures (this guide is now archived but contains a good deal of good practice advice that is still relevant and useful).
1 This speech is an amalgam of two presentations given on the topic to the Australian Public Service Commission’s Executive Leaders Learning Network at the Rydges Lakeside Hotel, Canberra on 3 March 2009 and the Department of Immigration and Citizenships’ Senior Managers Leadership Forum at University House, the Australian National University on 3 April 2009. Components of this speech have been incorporated into an article by Ms Lynelle Briggs, Australian Public Service Commissioner published in Australian Journal of Public Administration, vol. 68, no. 2, June 2009 pp 119–136.
2 This summary is from a variety of sources including: Australian Public Service Commission, Values Resources for Facilitators: Being professional in the Australian Public Service, 2005.; Michael Josephson, Making Ethical Decisions, Josephson Institute of Ethics, 2002.; Manuel Velasquez et. al. ‘Consistency and Ethics’, Issues in Ethics, V. 1, N. 4 (Summer 1988), Markkula Centre for Applied Ethics, Santa Clara University.; ‘Justice and Society Symposium’, Cranlana Institute: An initiative of the Myer Foundation, Melbourne, Victoria, 1–2 December 2008.
3 Australian Public Service Commission, Values Resources for Facilitators: Being professional in the Australian Public Service, 2005, p. 2.1
4 While there are many sources of definitions for common ethical parameters, the summary and debate provided by the Markkula Centre for Applied Ethics at Santa Clara University is concise. In particular, see the article by Manuel Velasquez et. al in Issues in Ethics, V. 1, N. 2 (Winter 1988).
5 St James Ethics Centre. www.ethics.org.au, 1 August 2008.
6 Wes Hanson, Editor, Making Ethical Decisions, Josephson Institute of Ethics, 2002, p 6.
7 Michael Josephson, Making Ethical Decisions, Josephson Institute of Ethics, 2002, pp 27–29.
8 Chen-Bi Zhong, ‘The Ethical Dangers of Rational Decision Making’, Finalist for the ‘Excellence in Ethics’ Dissertation Proposal Competition, Northwestern University, 2005, p 5.
9 Rushworth M Kidder, How Good People Make Tough Choices: Resolving the Dilemmas of Ethical Living, Harper, New York, 1995, p 17.
10 Rushworth M Kidder, Chapter one: ‘The Ethics of Right Versus Right’ in How Good People Make Tough Choices: Resolving the Dilemmas of Ethical Living, Harper, New York, 1995.
11 Quoted in ‘Tailored Learning Suits all: the public service has particular needs when it comes to qualifications’, Weekend Australian, January 10–11, 2009, p. 2.
12 Australian Public Service Commission, Agency Health: Monitoring Agency Health and Improving Performance, 2007.
13 Australian Public Service Commission, Values Resources for Facilitators: Being professional in the Australian Public Service, 2005, p. 2.4.