The What

Despite what you might have heard, you did not learn everything that you need to know before you reached grade school, there is no universal morality “sniff test,” and common sense is insufficient when dealing with uncommon problems. Complex ethical conundrums require complex analysis and solving real-world ethical issues requires a careful approach that must be learned, practiced, and developed so that it can be applied consistently and rationally across cases.

While the need for critical thinking is necessary in any situation involving the intricate interplay of people and/or organizational structures, it is of particular importance in the public sector, where the structure of decision making is shared, the range of stakeholders is diverse, justified expectations for transparency are intense, and the ramifications of missteps can be profound. It will not do to rely on kindergarten-level ethics concepts when dealing with calculus-level ethics problems. But before we get to the “how,” perhaps we should spend some time thinking about the “why.”

The Why

As public sector professionals it is undoubtedly clear that you have made a commitment to advance the public interest. The role that you play is defined by a duty to the citizenry that you serve and by the reasonable expectations that members of society have for you. In any circumstance in which a decision that one person makes creates the basis upon which other individuals will order their lives, an ethical duty emerges to satisfy the reasonable expectations that one person creates for another. If I make a promise, for example, and you comport your life around the reasonable expectation that I will keep my word, then I have generated a responsibility to follow through on my pledge. If I do not, to your detriment, then you will have every right to ask, “why did you do that to me?”

Surely there are times when a change in course is necessary and previous promises cannot be kept. Nevertheless, the person whose expectations were frustrated will deserve an explanation. That explanation must be rational, fair, and understandable. In other words, it must be based on clear reasoning, applied to all similar cases similarly so as to avoid arbitrariness, and it must be explicable. This will be true for every choice that a leader in the public sector makes, and it will certainly be difficult to satisfy these requirements when dealing with a variety of opinions from a vast array of constituents. The manager’s role is even more complex, however, because in addition to serving the interests of the residents of a locality generally, the ethical duties of professionals in local government are also defined by a relationship with an elected governing body specifically.

Just as a duty exists to serve the populace based on a defined role and relationship, the role of a city or county manager is shaped by a relationship with local elected officials. The division of labor between the professional administrative staff and the elected officials must be made clear so that all parties know which decisions and actions belong to which actors. Since the elected official’s duty is to focus on strategic thinking and policy decisions, he or she also has a responsibility to avoid micromanagement of tactical choices. The duty of the manager is to respect the will of the people as expressed through the electoral process, support the governing body in its work by providing options and analysis to the governing body, execute the will of the council or board, and avoid any reality or appearance of using the manager’s position to undercut the authority of the elected body or to threaten the respect of elected office. During my 12 years serving as an elected official, I can say that I frequently witnessed other elected officials forgetting this division of labor, and that the most challenging ethical flashpoints emerged for the city manager when he felt a conflict between (a) serving the citizens, (b) supporting his staff, and (c) remaining respectful of elected officials who could at times make factually inaccurate and incendiary comments. Maintaining this balance is not easy, and doing it ethically is especially challenging. Fortunately, a process does exist for making consistent and defensible moral judgments; the types of judgments with which all parties might not agree, but all should respect.

The How

Although volumes could be written about the intricacies of sound moral reasoning, it should suffice for present purposes to outline a four-step process that, once mastered, will provide a solid structure for effective and efficient ethical analysis. That process can be summarized as (1) identify the default assumption, (2) assign the burden of proof, (3) engage casuistic exploration, and (4) apply conclusions to the current case.

Step 1: Identify the Default Assumption

In our pluralistic democratic culture, we often behave as if all ideas are equally valid and that all options to solve a problem deserve equal consideration and respect. This is definitely not true. Since we are engaged in the project of applied ethics—making real-world decisions in real time and in a real context—it is invariably the case that issues will arise with a history attached. Problems do not just appear out of nowhere, sui generis and detached from the environment from which they develop. Ethical conflicts or confusions present in a context that contains a number of default assumptions. Routinely, in the real world, we will be able to recognize a ceteris paribus, an “all other things being equal,” a guiding policy or procedure, a “way that we have always done things.” I would never suggest that we should always do things the way that we have historically done them simply because that is how we have always done them. We do need to develop and evolve in our thinking, and it is entirely possible that our standard mode of behavior has been wrong and must ethically be adjusted. However, the fact that we face ethical questions with a sense of history does make an argumentative difference.

The first thing to figure out when making a sound ethical argument is what we would do “all other things being equal.” If there were no special story, if there were no new information, what would we normally do? By asking that question, we are able to establish the default assumption, and the default assumption has power not simply because it identifies our customary response to the issue at hand, but because our customary response feels reasonable. It is customary precisely because it seems to make sense. We could be wrong in our initial feeling, and a good ethical analysis will reveal when the default assumption should be abandoned, but there can be no doubt that at the beginning of any argument, one side will have a decided advantage. The person maintaining the default assumption is not going to have to work very hard to prove his or her point. The person who wishes to dislodge us from the default will. And that brings us to step two.

Step 2: Assign the Burden of Proof

Once we have determined the default assumption, the second step of assigning the burden of proof becomes almost automatic. In any argument, ethical or otherwise, it is imperative to determine if A needs to prove something to B, or if B needs to prove something to A. Who needs to do the work to win the argument? Do I have to prove that I am right, or do you have to prove that I am wrong? Understanding this dynamic is key to making critical ethical judgments. Perhaps an analogous example will help.

In a U.S. court of law, a criminal defendant is granted “the presumption of innocence.” The structure of a criminal trial does not begin with recognition that there are two equally valid and practically influential ideas at play. It begins with an assumption that the individual charged is innocent. That presumption of innocence is the default assumption. Once we identify the default assumption, we can easily assign a burden of proof. The defendant does not have to prove that he or she is innocent to win in a criminal trial; the prosecution is obliged to prove that he or she is guilty. There is a clear advantage in the discussion for the defendant, and the magnitude of this advantage should not be underestimated. Notice that after the prosecution rests, we need to do more than just think that the defendant is guilty. We need to do more than even weakly believe it. No matter how close the prosecution comes to proving the case, if it cannot be done decisively—in a way that satisfies the burden of proof—then the default condition prevails, and the defendant is found “not guilty.” It is essential to recognize that the defendant is not found “innocent,” because that would imply that innocence was established. The defendant does not have to demonstrate innocence. All that is necessary for the defendant to walk free is for the prosecution to fail to prove guilt. Under that condition, by failing to meet the burden of proof, the default assumption remains intact. That is the power of steps one and two in a good ethical argument.

Step 3: Engage Casuistic Reasoning

There is insufficient space in this article to explain in full the mechanism of casuistic reasoning, but in short, it involves arguing by analogy from known easy cases to unknown difficult cases. When faced with a difficult ethical decision—which could be defined as a situation in which reasonable, intelligent, and well-meaning people disagree, or a situation in which reasonable, intelligent, and well-meaning people are confused about how to proceed—we begin by finding analogies to the current case that do not generate disagreement or confusion. If it is not clear whether an administrator should confront a local elected official during a public meeting in order to protect staff from what appears to be an unfair characterization, for example, then we must first find a paradigm example of when it would be ethically correct to do such a thing, and that example should be so clear and easy that all would agree that it is appropriate to do so. We must then find a paradigm example of a case when, even though there is great frustration, it would not be ethically appropriate to confront the official publicly. Again, the second case should be clear enough that everyone agrees that the manager would act rightly by avoiding confrontation. Assuming that we have selected our paradigm cases well, and that they are similar enough to the current case to be informative but dissimilar enough to avoid generating the very type of disagreement or confusion that we are attempting to solve, then we would have all that we need to make a good ethical judgment about the current difficult case. By describing the differences between the two known easy analogues, it will be possible to identify the factors that justified action in one case but were missing in the other case. That information will be invaluable in determining a proper course of action in the current case. If the current case is more like the first example, confront! If it is more like the second case, back down.

In step one of the argument, we determined what the default assumption should be; most likely “all other things being equal, do not confront elected officials in public.” That immediately allows us to recognize that the burden of proof would be on the administrator who wants to confront an elected official publicly. The elected official should not have to prove why he or she should not be confronted, the manager would have to justify such an action. Could there ever be justification for such behavior? Certainly yes, although potentially rare. By using casuistry, we can search for a good paradigm example to justify the extreme behavior and we will then know the conditions under which the burden of proof can be met, and atypical behavior would be ethically permitted or even obligatory. All that is left then is to move on to step four.

Step 4: Apply Conclusions to the Current Case

Now that we know that all other things being equal public confrontation is not justified, but that it can be justified in the certain circumstances, and we know what those circumstances look like based on identification of a relevant analogue, all that is necessary is to ask whether the conditions identified by casuistic reasoning apply to the current situation. If they do, then the burden of proof has been met and it is ethical to depart from the default assumption. If they do not, no matter how close we might feel we are to justifying our behavior, the burden of proof cannot be satisfied, the default assumption remains operative, and we know what we must ethically do.

Conclusion

I have heard it said, even by people whom I greatly respect, that as a leader in the public sector, it is possible to make important decisions without setting a precedent. I believe that this view is incorrect. Not all cases are the same, and it would be improper to think that just because a manager makes one decision in one case that he or she has an ethical responsibility to make the same decision in all other cases. Giving a pay raise to one does not mean that there is an obligation to give a pay raise to all. However, managers do have an ethical responsibility to treat all similar cases similarly. If a pay raise is granted to a particular employee because that person’s salary is 20 percent or more below the market average, then an ethical obligation does exist to work toward raising the salaries of all employees who are receiving pay at 20 percent or more below the market average, unless there is some other compelling logical difference among them. A failure to do so begs the question, why one employee and not the other? And if the manager cannot describe the difference between the two cases in a rational, fair, and understandable way, then the victim of the manager’s arbitrariness has every right to ask, “why did you do that to me?” By applying the steps that I have outlined in this article, it should be possible to answer that question cogently, recognize that a change of course is needed, or avoid the situation that instigated the question.

 MICHAEL GILLETTE, PhD, president of Bioethical Services of Virginia, Inc. (www.bsvinc.com). He is an ethicist who provides ethics case consultation, ethics policy development and review, and ethics education to facilities and organizations throughout the United States and abroad. He was elected three times to the city council of Lynchburg, Virginia, and served two terms as mayor of Lynchburg. (mgillette@bsvinc.com)