Ethics@Work: MichiLeaks?

Yoav Gallant claims Micha Lindenstrauss is overreaching his mandate.

By ASHER MEIR
February 4, 2011 00:09
Asher Meir.

58_asher meir. (photo credit: Courtesy)

When the dust settles over the Yoav Galant appointment scandal, it will make a fascinating business-ethics case study. The appointment has been enveloped in controversy from the very beginning of the process, yet we would be hardpressed to identify a single salient legal breach or even a Left-Right political divide behind the dispute. All of the perplexing incidents have been ethical breaches, though it is too soon to know whose they are.

The scandal began, in my opinion, when it was decided not to extend Chief of General Staff Gabi Ashkenazi’s term.

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Extensions are the norm, and Defense Minister Ehud Barak gave no explanations as to why he was making an exception.

(He also has not given any explanation why Ashkenazi can’t stay on the job even one extra day now that there is no appointee to replace him.) But things really began to heat up during the interview process, when the mysterious “Gallant document” surfaced.

This document purported to show that Gallant had hired a PR firm to help him discredit competing candidates for the job.

Was the document genuine? Such a step would likely be quite legal, but certainly conduct unbecoming an officer.

Did an enemy of Gallant forge it? Same dichotomy. (Ultimately it was shown that the document was a forgery.) The latest controversy surrounds Gallant’s land dealings in Moshav Amikam.



What seems not be in dispute is that Gallant extended his house and his yard using aggressive tactics that did not exactly conform to the legally prescribed planning and approval process, and that there is no evidence these excesses reached levels that would trigger a criminal investigation according to Israeli norms. (Even if it did, to the best of my knowledge, having ever committed a crime does not disqualify someone from serving as chief of General Staff forever.) When information about these dealings was presented to the Turkel Committee, which is charged with vetting the appointment, they did not see them as an obstacle to Gallant’s nomination.

What happened since the committee’s conclusion is a grab-bag of all the problems with the governance of public administration in Israel. A private NGO, the Green Movement, went to court to challenge Gallant’s appointment on grounds that his land dealings made him unsuitable for the job. That’s two strikes: Strike one is that courts are meant to adjudicate disputes, not to pass judgment on the political decisions of elected officials. There is no real legal issue involved in the Gallant appointment.

Strike two is that in other legal systems, private NGOs have no standing in court, insofar as they are not parties to the dispute. Even if there was a genuine court case involving a genuine environmental issue, NGOs should not be allowed to join the suit as an actual party to the case; rather, they can act as witnesses or submit a “friend of the court” brief to give the court the benefit of their sometimes considerable knowledge and wisdom.

Once this legal challenge was allowed, Attorney-General Yehuda Weinstein was called upon to defend the government’s appointment. He decided he would not automatically defend the appointment; rather, he would first examine the evidence.

This is a bit of a problem, insofar as he is the government’s lawyer and is charged with representing it. But ultimately this conduct is not inherently problematic. Being the lawyer for the government is not the same as being a lawyer for a private individual; the government represents the people and to a certain extent, and so should the attorney- general.

About a century ago, Frederick Lehmann, who was the US solicitor-general (a position that has much in common with the Israeli attorney-general), famously enunciated the right of the solicitor-general to decline to defend the government, stating: “The United States wins its point whenever justice is done its citizens in the courts.”

Since the attorney-general had already been investigating the appointment, this particular defense did not seem to present any obstacles. However, it turned out that State Comptroller Micha Lindenstrauss had also been investigating Gallant, and at the last moment presented some new adverse findings to Weinstein.

Weinstein had very little time to weigh these findings, and Gallant had even less time to respond to them. As a result, Weinstein did not feel he could defend the appointment in court.

Gallant claims that Lindenstrauss went too far in conducting his own investigation without ongoing cooperation with the attorney-general and in bringing the new information to Weinstein’s attention at such a late stage. Gallant claims that instead of overseeing government actions, as he is called upon to do, Lindenstrauss was intervening in them with his own agenda.

I don’t have any particular opinion whether Gallant is qualified to serve as chief of General Staff, either professionally or ethically. But the way his appointment was torpedoed is a case study of a broken governance structure.

Fundamentally it is the government’s job to decide who is suitable to be chief of General Staff, and the government decided on Gallant.

Certainly appointees to such sensitive and senior positions should be carefully vetted, and the attorney-general needs to advise the ministers, who are not necessarily legal experts, on any legal ramifications.

An appointments committee is not essential, but it has many advantages in ensuring thorough and transparent examination of qualifications.

Both the attorney-general and the committee approved the government’s choice.

But the courts and private NGOs have no role in this process, and the state comptroller’s job is mainly to bring lacunae to the public’s attention after the fact, not to play an active role in the functioning of the executive branch.

The Gallant appointment fiasco is a classic example of an ancient adage: “Too many cooks spoil the broth.”

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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