Ethics

It is hardly a novel observation to note that the relationships between and among such notions as the rule of law, democracy, public policy and employee behavior are often bogged down in a tangled web of competing values and priorities.  What is surprising, however, is the difficulty faced when trying to establish a democratically-legitimate rule of law in which ethical considerations assume primacy over minimum legal compliance.  Because government policy makers and the private sector are motivated by different fundamental concerns, ethical issues are too often subordinated.  This essay will examine how these competing values arise, how they affect employee behavior both criminally and in the private sector, and whether it is wise to use employers as mediating institutions in an effort to instill an ethical priority rather than a legal compliance priority.

Background Politics of Public Management and Competing Values
Government policy, in a political system ostensibly devoted to the rule of law within a democratic framework, generates of number of ambiguous and controversial results with respect to employee behavior.  In effect, because a number of competing values have arisen, there has been a perceived need to superimpose a larger ethical framework that will reconcile these competing values and generate a more rationale and ethical type of public policy.  This is because, as history has demonstrated on many occasions, the rule of law in a democratic system does not necessarily result in public policies that are consistent with democratic virtues nor does it necessarily result in a level playing field for different classes of citizens.  Echoing this belief that public policy demands a governing ethical framework, one scholar has stated that Quite clearly, moral considerations are of fundamental importance to the quality of democracy and its administration--the soul of modern public administration.  Moral considerations are important because the democratic system does not necessarily create what might be characterized as an ethical rule of law quite the contrary, because employers too often have a disproportionately strong influence on and within the democratic system, they are able to help create through public policy a sort of one-sided rule of law that negatively impacts employee behavior and employee rights.

Studies demonstrate that public policy has failed to ethically guide employee behavior in a number of instances.  Some of the more egregious types of employer behavior have included unreported conflicts of interest, financial disclosures that satisfy the rule of law technically but are moral breaches, and disclosures of confidential information.  Government policy, in short, has not been effective enough in reigning in unethical behavior by employers and employees.  One scholar, noting the seeming inability to create an enforceable ethical rule of law to govern employee behavior, has noted the frequent overemphasis found on legal compliance in government ethics.  Legal compliance alone, a technical clinging to minimum legal standards, possesses no ethical force.  What is needed, therefore, is much more than a democratically-created rule of law that creates nothing more than technicalities.  Public policy needs to create a richer type of law that protects and creates incentives for employees to behave ethically.

One set of problem is that public officials and the private sector are too often motivated by different considerations and different value systems.  Indeed, one leading public administration scholar has noted that public organizations are fundamentally different from private organizations as a consequence of the function they serve in society.  Public policy tends to respond to social pressures more generally whereas the private sector responds more directly to market forces.  The tension between the two is natural when particular social goals conflict with market demands.  Thus, from the point of view of desiring a more ethical rule of law in a democratic system, these competing values need to be reconciled.

Employers as Mediating Institutions
To this end, some scholars have advocated the use of private sector employers as a sort of mediating institution in order to reconcile these competing values.  These proposals are fairly recent and the stated concept has been that Mediating institutions connect the private lives of individuals with public policy concerns by communicating societal norms to members and providing social contexts that encourage a commitment to these norms.

The concept is that behavioral change, whether of an ethical nature or otherwise, is much more likely to be successful if mediating efforts are deepened between employees and government policy makers.  The problem, both historically and systematically, has been that employees and policy makers have been separated more specifically, the private sector employers have on many occasions pressed their market needs on policy makers without addressing employee concerns as vociferously.   One proffered justification for employer mediation has been ethically-oriented more particularly, it has been stated that employees are more likely to behave openly and responsibly when public policies and private sector operations affect their local community.  A sort of nexus of shared responsibility, both public and private, arises in which communities are safeguarded from unethical exploitation while market considerations are simultaneously protected by policy makers.  Although traditional mediating institutions have included non-private sector organizations such as churches, neighborhood groups, and voluntary associations, there is no good reason why employers should not be considered as viable mediating institutions given their tremendous influence.

First, employees often spend more time at work than at home or in their community.  They are thus able to affect and effect through their behavior a more ethical pattern of business conduct.  Second, employee knowledge can be pooled and used by employers to construct and advocate lobbying campaigns that reflect employer and employee interests more diversely and more completely.
 
One interesting study in this respect involved employee commuting behavior in Atlanta, Georgia.  One the one hand, government policy makers were interested in encouraging employee commuting in order to promote social goals such as cleaner air and energy conservation.  The private sector was, quite naturally, more concerned with its own financial operations than broader social goals of no particular relevance to its main market activities.  The question, therefore, was how to affect employee behavior in positive ways.  Was the proper solution a government-mandated commuting law or something less intrusive. Direct regulation was rejected Given dwindling government resources and waning political will to impose direct control over individual behavior, policymakers may increasingly attempt to persuade employers to mediate societys most pressing and intractable problems, such as individual driving behavior. This persuasion constitutes a marketing function that is significantly different from the coercive role to which policy managers are used to playing.

In the instant case, direct coercive power by governmental policy makers was not required.  Employer mediation was sought and the private sector responded by educating employees about the relevant social goals.  There were two main conclusions.  The first was that employer mediation did affect employer behavior, but that the total behavioral change among employees was rather small.  The second conclusion was that the likelihood of a particular private sector employer functioning positively as a mediating institution depended on its attributes these attributes related to connections to the immediate communities, particular industrial affiliations, and ownership structures.  In short, it can be argued that employers might be interposed as mediating institutions in certain limited circumstances.  It would be too much to suggest, however, that employers are likely to influence employee behavior more significantly than government policy makers through an ethically-oriented rule of law.

Crimes Against Capital
Employee behavior, however, must also be viewed against what some observers have characterized as being an increasingly constrained regulatory environment.  At the same time that policy makers are deferring to employee individualism through the use of employers as mediating institutions regarding certain public policy issues they are creating a more coercive environment in other respects.  For example, there was an uproar fairly recently when federal legislators considered special legislation to require employer notification regarding the electronic monitoring of employees in the private sector.  The private sector employers, to be sure, did not want to be burdened by the notification procedures.  They argued that employees wasted too much time, this wasted time constituted business inefficiency, and that coercive notification requirements from government policy makers were an undue regulatory burden.  The strength of the conviction by private sector employers cannot be overstated indeed, the issue as articulated by the private sector employers implicated civil privacy concerns as well as potential criminal liability.  With respect to the relationship between the criminal justice system and theft of time it has been stated that Employee theft has been classified by criminologists as a type of occupational crime, itself a subspecies of white-collar crime. The term refers to offenses committed by outsiders and insiders, customers and employees, who victimize the employer. Shoplifting, fraud, computer crime, and expense account theft are typical examples of the genre.

The danger associate with unlimited monitoring, and that which the policy makers
sought to address, was that employers were effectively creating potential new types of criminal liability outside of the legal system.  The theft of time, as recorded through employer monitoring, might come to include such normal things as wasting time talking to another employee about a football game, surfing the internet, taking extended breaks, or idle behavior.   It is the governments duty to protect individual privacy, to define criminal behavior, and not to delegate these responsibilities to private sector employees.

Thus, at the same time that private sector employers have been offered up as potential mediating institutions, they have also increased monitoring of employees. This is likely to discourage trust between employers and employees, it is likely to have a chilling effect regarding employee behavior and the reporting of unethical behavior, and it is likely to exacerbate the competing values paradigm that has for so long existed between the private sector and government policy makers.  The private sector employees seem hopelessly caught in the middle.

Conclusion
In the final analysis, it has been extraordinarily difficult to create an ethical rule of law because of competing values which exist between private sector employers and government policy makers.  This is true both at the state level and at the federal level.  Some studies have indicated that the private sector might be used as a sort of mediating institution in order to promote and achieve certain social goals.  The data, however, has not been especially persuasive that this is a wise course of action indeed, the successes have at best been small at worst non-existent.  What is needed is a stronger nexus between policy makers and private employees that rewards and protects ethical conduct while discouraging  and punishing unethical behavior.  Legal compliance is an inadequate paradigm.