“Unethical, sketchy, and uncomfortable behavior among Herndon officials are some of the main reasons behind the push to strengthen the code. The councilmembers shared stories of unnamed former town officials who publicly berated staff, grabbed a staffer in a sexual manner, and solicited jobs from other elected officials in the performance of their official duties.”

—From “Town of Herndon Grapples with How to Revamp Ethics Code,” an article in Reston Today, describing the classic and unresolvable problem with Ethics Codes.

Herndon, Virginia, isn’t too far from where I live.

The problem the article encompasses is as old as the hills. Simply passing laws, or regulations, or rules prohibiting wrongful conduct doesn’t do anything to make the people subject to these laws, regulations and rules better human beings. It simply tells them that there are specific consequences to their bad conduct. Maybe that will discourage them, and maybe it won’t. After all, they have to be caught first.

The conduct described in the quote is unethical, and anyone with functioning ethics alarms knows its unethical. Abusing subordinates? Sexual assault and harassment? Using official duties to barter for career advancement? If an official knows this conduct and others equally blatant are wrong, then they don’t need a code. If they don’t know they are wrong, no code is going to help them, and individuals that ethically clueless shouldn’t be government officials.

That doesn’t mean that codes of conduct aren’t essential tools of creating an ethical culture in a local government or tree house clubs. They are, but they are just a starting point, putting in place external standards that have to be internalized, which is to say that they are then used to fix the settings on everyone’s ethics alarms in that culture. By themselves, codes do nothing, and they may even cause more misconduct. Unethical people who are also smart love the Compliance Dodge, from the Rationalizations List:

5. The Compliance Dodge.

Simply put, compliance with rules, including laws, isn’t the same as ethics. Compliance depends on an individual’s desire to avoid punishment. Ethical conduct arises from an individual’s genuine desire to do the right thing. The most unethical person in the world will comply if the punishment is stiff enough. But if he can do something unethical without breaking the rules, watch out!

No set of rules will apply in all situations, and one who is determined to look for loopholes in a set of laws, or rules, or in an ethics code, so that he or she can do something self-serving, dishonest, or dastardly, is likely to find a way. This is one reason why the ubiquitous corporate ethics programs that emphasize “compliance." are largely ineffective. By emphasizing compliance over ethics, such programs encourage the quest for loopholes. Remember that when Enron’s board realized that one of its financial maneuvers violated its Code of Ethics, it made compliance possible by changing the Code.

When an organization or society makes compliance…doing the right thing to avoid unpleasant consequences… the focus of its attempt to promote ethical conduct, it undermines the effort by promoting confusion in the not-infrequent circumstances when doing the right thing hurts. The better approach, and the one promoted by Ethics Alarms, is to teach and encourage good behavior and ethical virtues for their own sake. When the inevitable loophole opens up in the rules, when the opportunity to gain at someone else’s expense is there and nobody will ever know, it is the ethical, not the compliant, who will do the right thing.

The  really dangerous officials, the ones with no ethics alarms at all, operate according to the previous rationalization on the list, named after the late, and disturbingly widely-regarded in his old stomping ground as great (there’s a statue of him in D.C.) Marion Barry:

4. Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical.“

The late D.C. Mayor and lovable rogue Marion Barry earned himself a place in the Ethics Distortion Hall of Fame with his defense of his giving his blatantly unqualified girlfriend a high-paying job with the DC government. Barry declared that since there was no law against using the public payroll as his own private gift service, there was nothing unethical about it. Once the law was passed (because of him), he then agreed that what he did would be wrong the next time he did it.

Ethics is far broader than law, which is a system of behavior enforced by the state with penalties for violations. Ethics is good conduct as determined by the values and customs of society. Professions promulgate codes of ethics precisely because the law cannot proscribe all inappropriate or harmful behavior. Much that is unethical is not illegal. Lying. Betrayal. Nepotism. Many other kinds of behavior as well, but that is just the factual error in the this rationalization.

The greater problem with it is that it omits the concept of ethics at all.  Ethical conduct is self-motivated, based on the individual’s values and the internalized desire to do the right thing. Barry’s construct assumes that people only behave ethically if there is a tangible, state-enforced penalty for not doing so, and that not incurring a penalty (that is, not breaking the law) is, by definition, ethical.

Nonsense, of course. It is wrong to intentionally muddle the ethical consciousness of the public, and Barry’s statement simply reinforces a misunderstanding of right and wrong.

The debate in Herndon is mordantly amusing to me, because the alternative to being amused would be to give up and throw myself in a shredder. All the supposed concentration on ethics in government over the past 20 years, and this is still the goo-goo-gah-gah! level of comprehension of the area our elected officials have? From the article:

While council members have agreed that revising the code of ethics is a positive step toward ensuring ethical behavior of future councils and erasing a perception that the council skirts rules, they have different ideas on what should get changed or added…. Council member Pradip Dhakal suggested [that] borrowing from other codes of conduct, and analyzing omissions in the current code, may solve current gaps… some council members [raised]  concerns that trying to list every single unethical behavior could end up missing some things and creating a policy that no one would read.

For the sake of appearances, having a longer ethics code might raise some eyebrows if it’s overly detailed, one council member said:  “I’d be like what kind of crap is going on if they need this level of detail?." …Other possibilities floated at the March 5 meeting included defining “ethical behavior." …

It was at this point that a primal scream began forming deep in my core, and began forcing itself upward through my spasming gorge, as my mouth froze in a rictus of horror. NO ethics code will “ensure” ethical conduct. Substantive “gaps” in ethics codes only cause problems for people who are untrustworthy. Nobody reads ethics codes until its too late, except those who don’t really need them, because those individuals already care about right and wrong.

The next step, after revising an ethics code, is training, which, in most of its iterations in most places, is a perfunctory exercise. I have been asked by Fortune 500 companies to train a staff in 90 minutes, or an hour, and that will be the only such training that staff has in ethics for a year or more. One program I was booked to give at the  convention of a huge corporation was slowly whittled down from a planned two hours to just 30 minutes because the CEO kept adding other topics to the three days of presentations. Then, when it it was finally time for my segment, he actually introduced me by saying, “I regard building an ethical culture as my top priority.”

I  went on stage suppressing laughter, and was tempted to begin by pointing out that the yawning canyon between the reality of what I was allowed to present and the public rhetoric leaders and manager routinely belch out about the importance of ethics explains why there is so much corruption in the public and private sector.

Maybe I should have.

Here’s the current Herndon Virginia ethics code.