Archive for the ‘accountability’ Category

The Business Significance of the ‘Trolley Problem’

streetcarThere’s a famous philosophical thought experiment known as “the Trolley Problem.” It goes roughly like this. Imagine one day you see a trolley — the famous San Francisco variety, or something more like a Toronto streetcar — hurtling along its track. The driver is incapacitated, and the trolley is bearing down on 5 people, mysteriously unconscious on the track. You happen to be standing next to a switch, which can divert the trolley onto a different track. But lying on this other track is another unconscious person.

So assuming (as the philosophy professor insists you must) that you don’t have time to haul any of the various unconscious persons off the tracks, your choice is effectively this: should you divert the trolley, thereby killing one person, or do nothing, and allow 5 people to die?

The puzzle is intended to get you to think about what’s more important: promoting good outcomes (fewer deaths instead of more) or sticking to cherished principles (like the principle that you should not cause the death of an innocent person). It makes for a fun and often fruitful classroom discussion.

But as a model of real-life ethical decision-making, the trolley problem is pretty bad. Seldom does life present you with two cut-and-dried options, neatly packaged by your philosophy professor. As Caroline Whitbeck points out, real life isn’t a multiple-choice test. In real life — in business, for example — ethical problem solving is more like a design problem: you need to design the options, before you get to choose among them.

But the trolley problem can still serve as a useful starting point for talking about business ethics. The key is to ask the right questions. Here are a handful of questions designed to make the trolley problem relevant to business ethics. Each, of course, requires a bit of mental translation. We are not, after all, primarily interested in actual trolleys.

1) Does your business need a policy for situations like this? Is your business one in which trolley-problem-like dilemmas come up often? Are employees often faced with situations that require them to trade off outcomes against principles? If so, do existing policies tell them how to deal with such dilemmas appropriately?

2) Is there anything you can do to prevent situations like this from happening in the first place? One of the key characteristics of the trolley problem is that it’s a lose-lose situation: either you kill an innocent person, or you allow several people to die. It’s worth asking (especially if such problems are common; see #1 above) whether there’s something you can do to avoid such situations so that you don’t have to deal with them at all.

3) What kind of corporate culture have you fostered, and how will that culture push people one way or the other in such situations? The trolley problem is a true dilemma, and reasonable people can disagree about it. But what about situations in which you can throw a switch and kill 5 people (metaphorically, at least) in order to save one? And what if that one isn’t a person, but is your company’s bottom line? Will your company’s culture encourage employees to put short-term profit ahead of all other considerations

4) Will people in your organization recognize situations akin to the trolley problem as being ethical problems in the first place? Or will they make the decision on purely technical grounds? Will they see past the fact that flipping switches is, you know, their job? Or past the fact that hey, the trolley has to run on time, and we always flip this switch that way at this time of day?

5) Finally, if the decision were being made by a team, or members of a hierarchy, rather than by an individual, would members feel empowered to speak their mind if they felt the team, or their boss, was making a bad decision?

Philosophical puzzles like the trolley problem become famous for a reason. They get at something deep. And they can provide fruitful fodder for discussion as part of corporate ethics training. The core of a great discussion is there: you’ve just got to know the right questions to ask.

Global 100: Sustainably Misleading

Corporate Knights continues to mislead. Once again they’ve issued a list of the world’s “most sustainable” corporations — the Global 100 — and once again the metrics they’ve used have surprisingly little to do with what most of us mean by the word “sustainability.”

First, let’s get one thing out of the way. The organization is right to defend the fact that there are oil companies (including Enbridge, for example) and other producers of “sin” products on their list. There’s nothing in principle that says an oil company can’t, in some useful sense, be sustainable. And even if you think the fact that a company like Enbridge should be docked points because oil is a non-renewable resource, it still is a useful and interesting exercise to look at which oil companies (for example) are leading the field in terms of sustainability. So, CK is right to defend itself in this regard.

No, the problem with the Global 100 is not that they give kudos to a few unpopular companies. The real problem lies in the criteria used to measure what they refer to as “sustainability.”

Here are the 12 “key performance indicators” that get a company onto the Global 100:

  • Energy productivity;
  • Carbon productivity;
  • Water productivity
  • Waste productivity
  • Innovation Capacity
  • Percentage Tax Paid
  • CEO to average employee pay
  • Pension fund status
  • Safety performance
  • Employee turnover
  • Leadership diversity
  • Clean capitalism pay link.

These are essentially the same criteria they used (and which I critiqued) last year. The only difference is that they’ve added the bit about “Pension Fund Status,” the relevance of which may already have you wondering.

Hopefully the problem with those criteria is clear to most of you: only the first four — the first third of the criteria — actually have something to do with what most of us mean by “sustainability.” The rest are important issues, to be sure, but not relevant to the question of sustainable use of resources, or to the notion of sustainable economic growth that is compatible with environmental conservation.

Many will surely defend these criteria, and will tell me that I’m working with too narrow a conception of sustainability. Sustainability, they may say, isn’t just a narrow environmental concept. It’s about the whole People-Planet-Profits nexus. Well, certainly you can draw a diagram with boxes and arrows that shows connections of various kinds between those three. But to say that the three are one is to make so many undefended ethical, conceptual, and factual assumptions that the only result must be unnecessary confusion.

No, the Global 100 really isn’t a sustainability index, at least in the way that word is used by normal folks. It’s a complex index of sustainability, fairness, and a bunch of other positive stuff. And if you’re interested in all that stuff, why not just say so? Why bury it in a word that most people take to mean something else entirely?

The kicker, in terms of misleading language, here, is the tag-line that completes the title of the Corporate Knights list: “The Global 100: World Leaders in Clean Capitalism.” The problem here is that “Clean Capitalism” is a term Corporate Knights uses to describe what others might refer to as “conscious” capitalism, or perhaps “corporate social responsiblity.” But when most of us hear “clean,” we think “not dirty,” or “not polluting.” The implication, here, whether intended or not, is that the firms on this list are clean ones, firms unlike the dirty, polluting, earth-pillaging firms of the past.

Now, it would be one thing if Corporate Knights wanted to turn the word “sustainability” (or “clean”) into a technical term, a term of art with a special meaning for experts in the field. But that’s not what’s going on. Instead, they’re turning the word into a brand, a buzzword, and it’s a buzzword with which 100 companies are today adorning press releases. A hundred firms are today bragging about being sustainable, and are doing so with Corporate Knights’ endorsement. But “sustainable,” here, simply does not mean what you think it means.

Toronto Mayor Ford Keeps Job, But Far from Vindicated

Toronto mayor Rob Ford will apparently be keeping his job. An appeals court has overturned a previous court decision that had said that Ford had violated the province’s conflict of interest law.

The decision came down today from the Divisional Court which heard Ford’s appeal of his November conviction. The panel of three judges has now concluded that the original trial judge had made an error in finding Ford guilty under the Municipal Conflict of Interest Act.

Many Torontonians were bewildered by the original verdict, and by the fact that it could result (as required by the Act) in Ford’s removal from office and a multi-million dollar by-election. Ford’s offence, after all, was hardly armed robbery. He was merely accused of participating in a city council vote on a relatively small financial matter. The question under consideration at that vote was whether he, Ford, should return a few thousand dollars’ worth of donations that the city’s integrity commissioner says were improperly gathered. So it’s not as if Ford had stolen the money, or embezzled it. And garnering the donations was not itself a legal offence. The problem lay solely in his having voted on this matter, a matter in which he had a personal stake. Many people wondered how it could be that Toronto could lose its duly elected mayor over such a small procedural matter.

But bewilderment about that initial verdict says more about public understanding of conflict of interest than it does about the substance of this case. Conflict of interest isn’t about numbers; it’s about loyalty. And when we think someone has violated a conflict of interest rule it’s not necessarily because we think he or she has made an improper decision, but rather that we think he or she has failed to keep personal business and official duties separate, and that as a result we cannot be sure about what factors may have influenced that decision. It is also, in the end, about public faith in the decision-making processes of our most important institutions.

Be that as it may, today’s decision means that Ford is not guilty of violating the Act, and hence gets to keep his job. My non-lawyer’s understanding of the verdict is this. The decision seems to turn on a technicality. Ford had been accused of wrongfully participating in a February 2012 debate and vote by Toronto city council over whether he, Ford, should return the improperly-gathered donations. A council vote 2 years earlier had required Ford to pay back that money. But, according to today’s ruling, Council didn’t have the authority to engage in that earlier vote. So it was legally null – effectively, it never happened at all, from a legal point of view. And if the earlier vote “didn’t happen,” then the February 2012 vote that essentially responded to that earlier vote was really moot. And if that vote was moot, it cannot have been improper for Ford to participate.

But the court’s decision today is far from a vindication. Ford keeps his job on a legal technicality, the sort of thing that a layperson could never foresee from a reading of the plain wording of the relatively brief and clear Municipal Conflict of Interest Act.

That’s fair enough, from a procedural point of view, but it doesn’t mean that the mayor didn’t do anything wrong. He still took part in a decision in which he had a personal stake. And as a man in a position of power and trust, he not only should not have done so, but he should have known better than to do so. Even if he knew in his heart that his vote in the matter was unbiased, he should have known that that’s beside the point. What matters is that trust in the system requires decision makers to remove themselves from decisions that pertain to their own affairs. Doing so is essential for maintaining public trust in the system.

We can only hope that Ford will proceed now with uncharacteristic humility, and with more eagerness to learn the rules that govern his position than he has thus far demonstrated.

NHL Lockout and the Ethics of Labour Disputes

When the rich and powerful butt heads, are they obligated to look out for the little guy?

The NHL lockout may be over, but its impact is far from forgotten. Or even clear. And the impact goes far beyond the loss of income to the NHL, its member teams and its players.

The end of the dispute may mean little to the economy as a whole, but to one portion of the economy — the portion that depends for its livelihood on the actual playing of hockey games — it means everything. The economic loss to Canada as a whole as a result of the loss of half a season of hockey may amount to less than 0.05 per cent of GDP, but the impact was felt disproportionately by the thousands of businesses and individuals that depend for their livelihood on the NHL and its players. For every Sidney Crosby or Daniel Alfredsson making millions on the ice, there is an entire ecosystem of managers, announcers, hotdog vendors, and Zamboni drivers who only have jobs because hockey is being played.

The lockout resulted, in other words, in a lot of so-called ‘collateral damage.’ Some teams had to lay off staff (in some cases, that meant hundreds of employees per team) and many businesses — from sports bars to the guy selling hotdogs outside the arena — saw business dip or even bottom out entirely.

Of course, this is true in almost any labour dispute. When auto assembly-line workers go on strike, workers at companies that manufacture parts for those assembly lines may see hard times as a result. But as many have pointed out, the dispute between the NHLPA and the NHL was a dispute between millionaires and billionaires, which gives the whole thing a distinctly different feel.

Whether the 113-day dispute was worthwhile to either the players or the league — whether either side gained more than it lost — is for them to decide. The relevant ethics question, here, is what part the financial fate of these innocent bystanders should have played in the decision making of the two parties to this dispute, namely the NHL and the National Hockey League Players’ Association (NHLPA). Should the league and players have felt any obligation to end the dispute early, in order to limit financial collateral damage?

It is tempting to cast this question as a matter of what economists call ‘externalities.’ Externalities are the effects that an economic transaction has on non-consenting bystanders. Pollution and noise are standard examples. And both economic theory and ethical theory agree that externalities are a bad thing. It is typically both inefficient and unfair if significant costs are foisted on innocent bystanders.

But economic theory, at least, doesn’t typically count the income effects of competitive behaviour as “real” externalities. If I outbid you in an auction, your interests have been harmed but not in a way that results in either economic inefficiency or real injustice. If I invent a better mousetrap and put makers of lesser products out of business, the result is ‘frictional’ unemployment but also long-term social gain. And during a labour dispute, money not being spent on hockey-arena hotdogs or Zamboni-driver wages are surely being spent on something else: one man’s loss is another’s gain.

But while not technically unfair, the outcome for bystanders is certainly unfortunate, a bad thing by almost any measure even if not the result of wrongful behaviour. And when the dispute at hand is between millionaires and billionaires, it’s worth asking at least whether the rich don’t have some duty, some social obligation, to take better care of those less fortunate.

Once upon a time, the rich and powerful cleaved to the notion of ‘noblesse oblige,’ the idea that with wealth and power come responsibility. Of course, even if the team owners and the players took such social obligations seriously, that doesn’t necessarily mean the dispute would have ended earlier. An obligation to look out for the little guy doesn’t mean an obligation to throw in the towel. But the notion of social responsibility, not to say humility, might well have done something to reduce the length, and impact, of what many regard to have been a pointless conflict in the first place.

Curbing Illicit Flows of Money

The development goals of many underdeveloped nations are seriously hampered by illicit flows of money. The money sent into those countries in the form of aid and foreign direct investment is, in many cases, dwarfed by the money that flows out as a result of money laundering, bribery, and dodgy transfer pricing. Some estimates put that outflow as high as a trillion dollars. And a lot of that money flows through, between, or within corporations.

I recently took part in a panel discussion on this topic, part of a larger event put on by a group called Academics Standing Against Poverty (ASAP).

Here are a few of what I take to be the key points, not necessarily in order of presentation, from my discussion of the topic:

Corporations have two different categories of responsibilities when it comes to curbing illicit financial flows. First, they are of course responsible for their own behaviour. Under this heading, corporations have three key obligations. First is not to game the system to avoid taxes. Minimizing taxes — even going to significant lengths to avoid taxes — may seem to be part and parcel of a manager’s obligation to maximize profits. But there is no general obligation to maximize profits, and certainly no such obligation to do so ‘at all costs.’ Even the weaker duty to ‘put shareholders first’ is a vague enough concept to be consistent with a principled stance against aggressive tax avoidance, even where taxes can be avoided legally.

A second direct obligation has to do with transparency about transfer pricing. When goods or services are being sold between branches of a multinational, the prices charged should be fair and should be rooted in a clear methodology. And total taxes paid internationally should be reported in a company’s audited annual reports. Even when gaming the system is legal, it is dishonourable.

Third, companies should have zero tolerance for bribery. Besides being corrosive to local economies, bribery is often just a lousy competitive strategy: it involves payments that cannot be guaranteed to work, and when they don’t work there is of course no recourse to the courts. Businesses generally know this, but sometimes see bribery as a necessary evil; they need to work to make it less necessary.

In addition to these direct obligations regarding their own behaviour, big companies arguably have some responsibility for the indirect effects of their operations. Major corporations support entire ecosystems of smaller businesses — suppliers, subcontractors, agents, and so on. And activities within that ecosystem can be a major source of illicit transfers. Corporations should assume some responsibility for illegal and unethical activities in their shadow. This should at least mean setting clear standards for the behaviour of the companies with which they interact, and sharing best practices. Companies are starting to do this with regard to bribery, but they should consider extending that to other areas.

Next, a point with regard to how businesses interact with governments. The least controversial, over-arching norm for business is to play by the rules of the game. Normally, governments set rules and as long as businesses play within those rules, they are at least coming close to meeting their obligations. But not all governments are equally capable of setting and enforcing the requisite rules. And the absence of clear rules doesn’t imply an absence of obligations. So, for example, the fact that the government of a small developing nation hasn’t passed regulations (as Canada and the US have done) that set standards for fairness in transfer pricing doesn’t mean that a company can be complacent.

Finally — and this bit of advice is aimed at development advocates — it is important to avoid thinking of transnational corporations as the enemy. My sense is that a significant subset of folks who are concerned with development are focused on the negative side-effects of corporate involvement in developing nations. What we need to do, though, is to harness the power of corporations rather than regretting it. Business corporations, in addition to being potent organizations, have a vested interest in reducing poverty worldwide. Anyone living on $1.25 a day makes a lousy customer and a lousy employee. Of course, corporations face a collective action problem when considering how to reduce poverty. No one corporation can do much on its own, and it’s a challenge to find ways to get long-term interests in poverty reduction to override short-term interests in profits. But still, the development community needs to see corporations as important partners. We can’t let a culture war over capitalism get in the way of helping the world’s poor.

The video of our panel discussion is now available, here:

Kinder Morgan and the Ethics of Public Consultation

Energy company Kinder Morgan ran head-first into the complex ethics of public consultation last week. The company shut down an information session in Victoria, British Columbia, in response to what the company is calling “vandalism” of some of its on-site signs. The so-called “vandals” tell a slightly different story: they say all they did was peacefully replace the company’s signs with their own placards.

Public consultation is a regular part of business for many companies these days, especially those in the energy and extractive industries. In some cases, public consultation is required by legislation; in other cases, it’s just good business sense. But none of that means that all companies are going to be at ease with the process. To say that public consultation is common is not to say it is easy. For starters, the word “public” is too broad to provide clarity about what the process even amounts to. You’re not really going to consult the entire public. So who should you consult? The activist public? The educated public? The elected or appointed representatives of the public?

For that matter, how do you even label the process? Without harping too much on words, consider the difference in attitude implied by the terms “public consultation,” “public information,” and “public engagement.” The public’s perception of the process is liable to vary considerably depending on the way the process is labeled, never mind what it implies about the role the thing is going to play in a business’s operations.

From an ethical point of view, public consultation has two distinct objectives. First, consultation is a sign of respect, a way of saying to concerned individuals and groups, “We think you matter.” The other ethically-significant reason for public consultation is to gather input that might actually affect decision-making. Unanticipated concerns can easily come to light; asking people what they care about can be much more effective than guessing. These twin objectives — expressing respect and seeking information — provide hints as to how the process needs to go.

Of course, the information gathering goal is the easy part. Give people a microphone and they’ll talk. A company still needs to make an effort to get the right people in front of the mic, but that’s not rocket science.

The harder part is how to show respect, especially when the project at hand is a controversial one over which tempers are likely to flare. Like, say, a pipeline. And that’s where Kinder Morgan ran aground, in a mutual failure of respect. It’s not nice to mess with someone’s signs, but it behooves a company to respond to such things by taking the high road. After all, a company in the energy sector needs to not just show up; it needs to be good at this stuff. In public consultation, the kind of sophistication that befits a first-rate company means more than glossy handouts. It means being able to roll with the punches, because sometimes that’s what respectful dialogue requires.

Ethics Lessons from Toronto Mayor’s Ouster from Office

Toronto Mayor Rob Ford has been found guilty of violating the Municipal Conflict of Interest Act, and will be removed from office. The much-anticipated court decision was handed down this morning.

Regrettably, this is unlikely the end of the story. Ford had announced, prior to the decision, his intention to run again should the judge remove him from office. The judge had the option to include, as part of Ford’s sentence, a prohibition on running again, but opted not to do so.

Ford has plenty of detractors. Some don’t like his politics. Some question his aptitude for the job of mayor of Canada’s largest city. Others worry about his being implicated not just in one but in a string of conflict of interest violations. But he also has plenty of defenders — after all, there are an awful lot of people out there who voted for him, and many of them are sticking to their guns on that choice. So the debate will rage. Plenty of ink is sure to be spilled in by both camps in the wake of this decision. I’ll limit myself here to just two quick points. One is about leadership, and the other is about governance.

First, leadership. Whatever your views of Ford, and whatever your views about the severity of his breach of the Conflict of Interest Act, you pretty much have to agree that Ford demonstrated a disappointing lack of leadership ethics, here. Yes (as his lawyer pointed out) people do make mistakes, and even a mayor can be forgiven for an incidental breach of a rule now and then. But what’s particularly worrisome here is that Ford, who by all rights ought to be the guy who leads Council in understanding its ethical obligations, seems to be utterly clueless about them. And he doesn’t seem terribly worried about that, either. According to a report of the court proceedings, Ford “testified he never read the Conflict of Interest Act or the councillor orientation handbook. Nor did he attend councillor training sessions that covered conflicts of interest.”

My second point has to do with governance. As Marcus Gee pointed out in the Globe and Mail recently, bumping Ford from office might be a case of ‘out of the frying pan, into the fire.’ Turmoil is likely to ensue. Council is now faced with the choice of having someone else — someone not elected to be mayor — serve out the rest of Ford’s term, or spending several million dollars of taxpayer money to hold another election. The result of turfing Ford seems especially troubling when we compare Ford’s ethical cluelessness with the out-and-out corruption that has brought down mayors in other major cities.

But what was the alternative? A judge has no choice but to call ’em like he sees ’em. Ford violated important rules, and those rules say he should be removed from office. Note that the judge in this case would have had the same range of sentencing options if the dollar amount at the heart of this case had been $3.15 rather than $3,150. A more sane system would perhaps allow for a broader range of penalties. Examples could be found in other systems and at other levels of government. A fine? Censure? Limitation of future mayoral discretion? Mandatory ethics training? I don’t know the answer. But a governance system that allows a political leader to blunder this way and then throws a city into turmoil is not a good system. Principles matter, but so does the way we implement them.

‘Do Your Best’ in The Tangle of Global Business

I spoke recently to a corporate audience on the topic of Ethics for Leaders. One of the sub-topics I touched on was the fact that leaders need not only to make good ethical decisions, but also to help others make good ethical decisions. As a practical example, we looked at techniques a leader might use to help someone else understand what is ethically problematic about bribery. Sure, someone in a leadership position might have the authority simply to give orders; but in many cases it will be much more effective to explain the values and principles that underlie a particular prohibition.

One of the attendees at this session pushed back in a useful way. “I get the ethical argument against bribery, and I agree. But I’ve talked to Sales Managers overseas who say it’s just not realistic to avoid everything that could be construed as a bribe. How do I deal with that, beyond simply pointing to the FCPA?”

This is a tough challenge, one that needs to be taken seriously. Whether it’s bribery or nepotistic hiring practices, local practices that violate the rules of business “back home” can seem hard to avoid. Business is a competitive game, and it sometimes really is the case that scrupulously following the written rules puts a company at a significant — maybe even definitive — disadvantage.

It’s far too easy to play Monday Morning Quarterback and to speak in idealistic terms about integrity in business. But ethics isn’t about being a saint; it’s about finding a way to do your best to find suitable limits on profit-seeking behaviours when those behaviours put other people’s legitimate interests and rights at risk. So, if we are to avoid sounding preachy, what can we say about the Sales Manager above?

First, make sure the “when in Rome” argument isn’t just being used as a fig leaf to cover up what is really an appeal to convenience. Sometimes it may be easier to follow local custom, but that’s not quite the same as necessity.

Second, if — if! — it really is necessary, when doing business overseas, to engage in practices that wouldn’t be allowed back home, are you at least doing what you can to a) minimize the frequency of such violations and b) working, in at least some small way, to improve standards in the local business community? Bribery and other forms of corruption are truly corrosive, and economies in which they are common would be much better off without them. Are you part of the problem or part of the solution?

Third, ask whether unscrupulous (or merely ‘grey zone’) behaviour is being used to cover up poor performance. It may be that the Sales Manager who feels the need to offer bribes simply isn’t very good at his job and is looking for ways to succeed without having sufficient talent or making sufficient effort. Sometimes lack of ethics suggests lack of competency.

And finally, ask what your company can do to change incentives such that a Sales Manager isn’t so single-mindedly driven by numbers that he feels compelled to bend or break the rules. No one within an organization should ever think of themselves as having just a single objective. Yes, a Sales Manager is in charge of Sales. But he also has responsibilities that include risk management (including avoiding bringing the company into shame or into court) and managing morale within the sales team. People will behave according to how you reward them, and so reward mechanisms ought to be as balanced as you would like their performance to be.

The challenges posed by doing business in the global marketplace are never easy. Only by avoiding both naïveté and cynicism can you hope to do good while still doing well.

Conflict of Interest and the Rule of Law

The hapless mayor of Canada’s largest city is again facing accusations of conflict of interest. Or, more accurately, he is facing accusations that he violated the relevant legislation regarding how conflicts of interest ought to be handled by municipal councils. The claim is that Toronto Mayor, Rob Ford, violated the Municipal Conflict of Interest Act when he voted, along with the rest of Council, on whether or not Council should let him off the hook with regard to a prior charge related to improper use of his position to garner donations for his own private charity.

Alas, this is far from being Ford’s first run-in with conflict of interest rules. See my blog postings on previous events here and here. But the present accusations are more serious, in particular because the penalty prescribed under the legislation is for the mayor’s seat to be “declared vacant.” In other words, if Ford is found guilty, he loses his job. Further, he can (at the judge’s discretion) be barred, for up to seven years, from becoming a member of council again.

Two elements of this case are particularly worth highlighting.

The first has to do with an apparent difference between the possible penalties in this case and the penalties that would apply in a parallel case in the private sector. Imagine the CEO of a major corporation being found guilty of violating her company’s Conflict of Interest Policy. How many would be summarily fired for it? It’s certainly not a legal requirement, to the best of my knowledge. As for corporate policy, some corporate conflict of interest policies don’t specify penalties at all — in some cases because they are part of larger corporate codes of ethics that try to focus on the positive. Should corporate policies specify penalties as harsh as removal from office? That’s a question for another day.

The second instructive aspect lies in the Mayor’s thinking on how the situation should be handled, and who should decide his fate. Ford is reported to have said that voters, not the court, should decide his fate. To his credit, Ford’s assertion here has the whiff of moral principle about it. He’s pointing to a principle of democratic accountability. If voters believe he has acted wrongly, they can and should make that clear at the next election, two years hence.

What Ford is missing, of course, is something called the Rule of Law. “Let the people decide” is, on its own, a recipe for disaster. For one thing, many people (including apparently some in positions of responsibility) just don’t understand what conflict of interest is or why it is important. While an electorate certainly ought to take such things into consideration when they enter the voting booth, that doesn’t mean they ought always to have the final say. Another way of looking at it is that the voters already have decided — they elected the provincial government that put into place the Municipal Conflict of Interest Act twenty or so years ago, the law that in turn will determine Ford’s fate. And, should they choose, the voters can ask their representatives to change that law.

Incidentally, the ‘rule of law,’ broadly understood, is what makes so called “say-on-pay” rules, rules allowing shareholders to vote on executive salaries, something less than a slam-dunk from a corporate governance point of view. Whether ‘voters’ should have direct control over something as technical (and sometimes emotional) as executive compensation is far from clear, which is why most say-on-pay requirements today call only for advisory votes.

The general principle, here, is that ‘the people’ ought to have a say, but that their say needn’t always be direct. It is for good reasons that we set up systems of laws, or in the corporate case systems of policies, and empower and entrust qualified administrators to apply those laws and policies. Of course, just which matters ought to be left to judgment to case-by-case basis, and which ought to be categorically determined as a matter of policy, is a hard problem for those who design institutions of all kinds.

Ethics on Wall Street: Hate the Player, Not the Game!

A recent survey of Wall Street executives paints a bleak picture of the moral tone of a central part of our economic system.

According to the survey (conducted for Labaton Sucharow LLP), 24 percent of respondents believe that financial professionals need to engage in unethical behaviour in order to get ahead. 26 percent report having observed some form of wrongdoing, and 16 percent suggested that they would engage in insider trading if they thought they could get away with it.

Two points are worth making, here.

First, some perspective. Far from alarming, I think the number produced by this survey are relatively encouraging. Indeed, the numbers are so encouraging that I can’t help but suspect unethical attitudes and behaviours were seriously underreported by respondents. Only 26 percent had seen something unethical? Seriously? That seems unlikely. And the fact that only 16 percent said they would engage in insider trading is also relatively benign. There are, after all, people who believe that insider trading isn’t unethical at all, and shouldn’t be illegal. They argue that insider trading just helps make public information that shouldn’t be private in the first place. I don’t think that point of view hold water, but the fact that it’s put forward with a straight face makes it pretty unsurprising that a small handful of Wall Street types are going to cling to the notion.

Second, a survey like this highlights the difference between our ethical evaluation of capitalists, on one hand, and our ethical evaluation of capitalism, on the other. One of the major virtues of the capitalist system is that it is supposed to be able to produce good outcomes even if participants aren’t always squeaky clean. In no way does it assume that all the players will be of the highest virtue. Adam Smith himself took a pretty dim view of businessmen. In The Wealth of Nations, Smith wrote:

“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public.”

And yet despite his dim view of capitalists, Smith remained a great fan of capitalism — or rather (since the term “capitalism” hadn’t been coined yet) a fan of what he referred to as “a system of natural liberty.” The lesson here is that evidence (such as it is) of low moral standards on Wall Street shouldn’t make us panic. Perhaps it should make us shrug, and say, “Such is human nature.” The challenge is to devise systems that take the crooked timber of humanity and mould it in constructive ways. Governments need to take corporate motives as they are and devise regulations that encourage appropriate behaviour. And executives need to take the motives of their employees as they are and devise corporate structures — hierarchies, teams, incentive plans — that motivate those employees in constructive ways. In both cases, while the players should of course look inward at what motivates them, the rest of us should focus not on the players, but on the game.

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