This past week, Shula Zaken, formerly the bureau chief of prime minister Ehud Olmert, was convicted of breach of trust in a case involving her pedestrian role as Olmert’s appointment maker. The court found that Zaken had intentionally and repeatedly obstructed appointments between Israel Tax Authority head Jacky Matza and Olmert, who was then the finance minister.

Matza had sought to recommend a particular candidate for a senior appointment in the ITA, but Zaken’s brother, Yoram Karshi, wanted time to persuade Matza to appoint another individual more to Karshi’s liking, and he prevailed on his sister to drag things out until Matza could be brought around.

The “breach of trust” law is one of the most important legal tools against public-sector corruption in Israel. The law itself is maddeningly vague; the crime of “fraud or breach of trust” is defined as “an act of fraud or breach of trust that harms the public,” even if the same act would not be considered a crime against a private individual.

Precedent has given the law some substance, and the “harm” to the public is defined as anything that erodes public trust in public servants, contradicts their integrity, or harms the public interest.

The clause that specifies a higher bar for a public servant seems clearly applicable here. If a secretary for a business executive took advantage of her position to delay meetings with one supplier in order to give an advantage to another supplier, she would be guilty of a grave breach of professional ethics, but I don’t know of any crime that would be involved. The case for extra strictness in the public sphere seems clear, partially because the scope for harm is so great.

What is particularly interesting here is how indirect Zaken’s involvement was. Matza himself only recommended Karshi’s candidate, and all Zaken is convicted of doing was a passive act of facilitating that recommendation. The court decided that “breach of trust” can occur even “in the breach,” through a default or lack of action.

Ethically this is certainly the right judgment. A person’s authority is exercised both in the commission and through omission, and it needs to always be exercised in the public interest.

ethics-at-work@besr.org

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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