Ethics @ Work: Are vague laws the answer to vague breaches?

Ultimately it is the voter who should be the judge of the conduct of public officials, as long as it is not demonstrably criminal according to equitable criteria.

June 16, 2011 23:30
4 minute read.

ASHER MEIR 58. (photo credit: Courtesy)

Top lawyer Ya’acov Weinrot is in court for bribery. The prosecution thinks the low fees he charged one of his clients constituted a monetary benefit that can be considered a bribe.

Weinrot defended himself by pointing out that there is nothing unusual about the discount, insofar as he has given large discounts to many public servants. But this defense might boomerang. The prosecution has now suggested that Weinrot is, in fact, at the center of a ramified influence-peddling ring.

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The somewhat surreal trial illustrates the three plagues that characterize public-sector ethics in Israel:

1. The too-cozy relationship between wealth and influence.

2. The lack of effective legal tools to attach this relationship.

3. The stubborn insistence of the prosecution to press charges, notwithstanding 2, leading to innumerable fruitless prosecutions of public figures.

Regarding the first, there is a widespread perception that the wealthy and well-connected have many ways of rewarding public servants who favor them without any formal quid pro quo. At a recent conference on concentration in Israel’s economy, The Marker editor Guy Rolnick explained some of the ramifications of the cozy relationship.

Someone in the audience asked if it worked through passing envelopes (the method for which for finance minister Avraham Hirchson was sent to jail). Rolnick answered that the beauty of the Israeli system is that no envelopes are necessary – it is a “forward market,” meaning that public servants who are perceived as having advanced the interests of the elites are rewarded with well-paid jobs after they leave public service.

The problem is a genuine and global one. It is sometimes called “regulatory capture,” the tendency of regulatory agencies to identify with the interests of the industries they regulate, partially because of this “revolving door.”

But it is clear that bribery laws were never meant to deal with this issue. Bribery is by definition a quid pro quo; the public servant is getting paid to use his or her influence in some specific way. There is no law against giving a good job to a retired public servant, and we would never want such a law.

What talented individual would enter public service if he knew that it disqualified him from a privatesector job in his chosen profession? The cost in money, prestige and professional challenge would be unbearable for all but the most timid. There are laws that require a cooling off period, but law, ethics and public interest concur that the period can’t be of unreasonable length.

Nevertheless, the prosecution continues to press charges against public servants for suspicions of very roundabout influence peddling.

A classic example is the “Investment Center” case against former prime minister Ehud Olmert. Olmert is suspected of using his influence when he was industry, trade and labor minister to benefit his cronies.

But benefiting your cronies is not bribery. In fact, if you are a successful politician, you probably have a lot of influential cronies, and if you can’t make any ministerial decisions that benefit any of them, you are pretty much paralyzed. The alternative is to have public servants who are not well-connected, which seems like a good recipe for cluelessness.

The prosecution seems to think that the answer to vague crimes is to have vague laws that give them wide latitude to prosecute influence peddling. But vague laws contradict the rule of law and the equal protection of the law.

One possible solution is to go in the opposite direction: very specific laws that deal with the issues and weigh the costs and benefits. For example, there could be a law that forbids senior public servants from receiving extraordinary discounts on legal fees if they continue to serve. (A total ban could lead to a situation in which an embattled public servant would be unable to find adequate representation.) A more reasonable solution would be improve transparency through reporting requirements and then leave the judgment on the more nebulous cases to the voter. Ultimately the voter can decide if a particular party is giving too much weight to political cronies instead of furthering the public interest. Politicians are answerable to the voters; the legal system is not meant to create general accountability but rather to avert the worst excesses.

Prosecutions on vague charges such as “influence peddling” are doomed to failure. One problem is that citizens lack clear guidance on what conduct is expected of them.

Another is that convictions are quite properly hard to attain, thereby giving the perception that the prosecution is filing the criminal equivalent of nuisance suits.

And given the wide latitude for prosecutorial discretion in these cases, the prosecution itself may give the impression of using public office for various kinds of influence.

Ultimately it is the voter who should be the judge of the conduct of public officials, as long as it is not demonstrably criminal according to equitable criteria.

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Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).

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