ethics for legislative drafters - national … for legislative drafters bruce feustel national...
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Ethics for Legislative Drafters
Bruce FeustelNational Conference of State Legislatures
WebinarDecember 1, 2009
Purpose of Workshop
Better understand how colleagues perceive, analyze and respond to ethical challenges
Examine some resources and frameworks to help you make ethical decisions
Challenge your own assumptions and practices
Webinar Instructions
Midway through the webinar we will include several audience surveysGroups will need one person at the computer ready to cast your voteThis person will also need to type questions and other responses for your groupWe will move quickly through the votes, so get ready and go with your first instinct
Overview
Defining ethicsEthical issues come without warningTypical areas of ethical tensionCase studies to prepare you Tools to guide you
Themes
Themes from other legislative drafters—what’s important…
Keep your eye on the big picture---what helps the legislative process and institution
Be stridently nonpartisanZealously work for each legislator Use common sense and experience
Themes with Cautions
Keep your eye on the big picture---what helps the legislative process and institution [but who decides what is best for the institution?]
Be stridently nonpartisan [but aren’t legislators pushing for something more?]
Zealously work for each legislator [but what happens when their interests differ?]
Use common sense and experience [but what if you’re new or stuck in a rut?]
Why Does Ethical Behavior Matter?
Builds trust with citizens, legislators and staff• Builds a better work product• Creates a healthier environment in which to
work• Fosters a sense of pride and professionalism• Promotes personal and professional integrity
Defining Ethics
Doing what is rightLegal ethics: obedience to the enforceableValue-based ethics: obedience to the unenforceable
Based on your values and beliefsLike a muscle, must be used
Ethical Issues Come without Warning
Work in political world but be neutralWorking in committeesAnswering question on tight time framesMultiple tasksWorking with the mediaConflicts between good principles/goals
Tension Points
Typical areas of tension:
Who is the client: legislator or legislature?What does confidentiality really mean?Where do my loyalties lie?Do it right or do it quick?Do I provide the same level of service to each legislator and for each issue?
Tension Points…more
Should you be quiet or speak up?What’s your opinion?Should you change your draft or other work product?
What is your province and what is the legislator’s?
What may you accept from lobbyists or others in the legislative arena?
What are my personal beliefs?
What helps?
Help through ethical challenges:Learn on the jobAdvice from supervisors and colleaguesPlan for typical tension areasLegal requirements, rules and agency policies
Applicable codes of conductPersonal and agency values and beliefs
Legal and Regulatory Requirements
LawsLegislative rulesSupreme Court or other attorney conduct rulesBill drafting manualsAgency personnel manuals and memorandaOral directives from your superiors
Duties and Values
What are the legislative agency's key duties?What are your personal core values?What are the legislative agency's core values?How do these duties and values connect to each other?
Are they ever in conflict?
Small Group Exercise
Case studies exercises:Change your memorandumConfidentialityFree stuffLegislator misrepresents the facts
ETHICS CHALLENGES FOR LEGISLATIVE DRAFTERS
1. Change Your Memorandum
A legislator asks you to write a memorandum to explain her bill. She makes it clear that she is going to distribute your memo to other legislators. You write an objective description and she comes back to you, telling you to drop one paragraph because the issue isn’t central to the bill.
ETHICS CHALLENGES FOR LEGISLATIVE DRAFTERS
2. ConfidentialityYou are the legislative staff attorney for a legislative committee. The chair tells you in confidence that House Bill 200 is going forward in committee today and that House Bill 300 is “going nowhere.” You happen to go over to the legislative fiscal analyst’s office and you find her frantically writing fiscal memoranda to both bills. She tells you that she has no idea if she is going to be able to finish both memoranda before the committee meeting will start.
ETHICS CHALLENGES FOR LEGISLATIVE DRAFTERS
3. Free Stuff
You are a lawyer working with a lobbyist on a bill draft. A senator has instructed you to work with the lobbyist and draft the bill to his satisfaction. Time is short and the lobbyist asks you to come to a working dinner where you will talk about the bill and iron out some of the details. What do you do?
ETHICS CHALLENGES FOR LEGISLATIVE DRAFTERS
4. Legislator Misrepresents the Facts
Before a committee meeting, a legislator asks for your understanding of some aspects of a bill. You explain carefully, but the legislator gets up in the meeting and describes your conversation and attributes several statements to you that you never said.
Staff Perspective
Model Code of Conduct for Legislative StaffBasic guidelines
Public servant - assist state legislatureLoyalty to legislative branchDuty to act in a way that makes staff
person worthy of trust and confidence
Legislative Staff Ethics
Model Code of Conduct for Legislative StaffDuties to legislators, other staff and the public
Honest, discreet and candidObjective, competent, diligent and fairRespectful and supportiveCourteous and law-abiding
Honest
Maintain high standard of honestyNo - property for personal useNo - employment for personal gainGive full effort for pay receivedTell the truthBe honest in all aspects of life
Discreet
In what you reveal about workMaintain confidentialityBalance confidentiality with need, at times, to reveal some informationKnow when to inform leaders of certain information
Candid
Provide candid adviceFully share your knowledgeHelp legislators make good decisionsMay have to be candid even when you are not asked for input
Objective
Provide objective advice, information and alternatives to legislatorsProvide advice independent of personal beliefs or interestsAvoid activities that conflict with objectivity or the appearance of objectivity
Competent
Acquire and maintain necessary knowledge and skills Recognize when you need help from othersBe honest about extent of your expertiseContinue to learn
Diligent
Give a hard-working effort on each task Use time productively and efficientlyComplete work in a timely fashionInform legislators of reasonable expectations
Fair
Treat all legislators with equal respect Provide equal quality work for all legislators to whom responsibleDon’t diminish effort because of legislator’s political or religious beliefs, race, etc.
Respect
Treat all colleagues with respect Understand the pressures of their work and difficulties of their obligationsPractice consideration
Supportive
Support the efforts of fellow staff membersBe willing to work as part of a teamDon’t seek to harm another’s reputation even when working opposites sides of an issue
Courtesy
Treat members of the public with courtesyRespect the need for those outside the legislature to have informationProvide help even when you don’t have information they are seeking
Law abiding
Obey the lawEncourage lawfulness in the legislative processPursue appropriate channels if you have knowledge of unlawful activities
Wrap-upGuidance comes from:
Learning on the jobGetting advice from supervisors and colleaguesPlanning for typical tension areasLearning laws, rules and policiesUnderstanding applicable codes of conductAdhering to your personal and professional values and beliefs
Wrap-up
Making ethical decisions:What are we looking for here?Your own perceptions of one another, note the different points of emphasisStrike zone analogyBill drafting analogyMix of uniformity and individual application