presented by: scarlet d. hughes, m.s.w. san joaquin county public guardian/conservator

Public Service and Fiduciary

EthicsMonday, September 17, 2012

Presented By:Scarlet D. Hughes, M.S.W.

San Joaquin County Public Guardian/Conservator

LEARNING OBJECTIVES

To become familiar with public service ethical concepts

To learn fiduciary duty conceptsTo learn the distinctions between

fiduciary duty and public service duty To learn as a public servant you are

held to a higher standard To learn the importance of public

perception regarding your ethicsTo encourage thinking beyond legal

restrictions

TABLE OF CONTENTS1. Public Service Ethics

Principles of Public Service Ethics Ethics vs. Ethics Laws Universal Ethical Values Values & Public Service Responsibility & Public Service Respect & Public Service Loyalty & Public Service

2. Fiduciary Ethics What is a Fiduciary? Fiduciary Obligation

TABLE OF CONTENTS

3. Ethical Conflicts Dilemmas Ethical Conflict: Fiduciary Responsibility vs.

Public Interest Public Perception “No Perks” Rules

4. Helpful Concepts5. Questions/Comments/Corrections6. Credits

PRINCIPLES OF PUBLIC SERVICE ETHICS

Serving the Public InterestNot personal interest

How does one know “The Right Thing to Do”Laws are a guideBut only set minimum standards Ethics laws set “required conduct”Ethics law violations

ETHICS VS. ETHICS LAWSThe Same Thing?

Ethical considerations go beyond the law’s minimum requirements

Ethics is what we ought to do – not just what we have to do

Legal doesn’t necessarily mean ethical

Ethical behavior is governed by “values”

UNIVERSAL ETHICAL VALUES

Trustworthiness/HonestyFairnessResponsibilityRespectLoyalty

VALUES & PUBLIC SERVICE

TrustworthinessBe truthful - don’t knowingly use or

give false or inaccurate information – keep your word

Avoid appearance of personal interest, bias, conflict of interest

Don’t accept giftsFairness

Merit based decisionsAgency policies applied consistentlyRefrain from decisions when there is a

conflict of interest

RESPONSIBILITY &PUBLIC SERVICE

ResponsibilityPromote the efficient use of agency

resources

Do not use agency resources for personal or political benefit

Represent your agency with professionalism, integrity, and appropriately as you are authorized to do

RESPONSIBILITY &PUBLIC SERVICE cont.

Take Responsibility for your own actions, even when it is uncomfortable to do so

Disclose suspected instances of impropriety

Do not disclose confidential information without proper legal authorization

RESPECT & PUBLIC SERVICE

Treat clients, family, public, peers and staff with courtesy, even when you disagree with them

Focus on merits, not personality traitsSolicit diverse opinions and build

consensus, when appropriateFollow through on commitments,

keep others informed, and make timely responses

Be approachable and open-minded

LOYALTY & PUBLIC SERVICE

Hierarchy of Ethical Duty: whose interest do you service first:Hint – Always the Client First Over:

Co-workers/Sub-ordinates Supervisor Manager Director County Administrator Board of Supervisors Legislators

WHAT IS A “FIDUCIARY”?

Has the characteristics of trust Should inspire a feeling of confidence Requires “scrupulous good faith and

candor” Fiduciary laws are created to protect the

less powerful, fortunate and/or sophisticated

Undertaking “to act primarily for another’s benefit”

Your fiduciary duty to the client always trumps public interest

WHAT IS A “FIDUCIARY”? cont.

A “Fiduciary” has 3 general duties:Loyalty–Maximizing the Conservatee’s or estate’s interests is primary (opposite of a “conflict of interest”)

Good Faith–Making the Conservatee’s or estate’s interests one’s own (opposite of “self dealing”)

There can be no “what do I get out of this?”Care – Exercising the same care and prudence as you would for yourself (opposite of neglect/negligence)

Probate Code §9600(a)–“…ordinary care and diligence …” means layperson or ‘non-expert’, not a lower, standard of care.

FIDUCIARY OBLIGATION

Performance Standards Contrasted: Fiduciary Duty – the highest level of care and

due diligence; our constant goal

Fiduciary Breach – not exercising loyalty, good faith and due care; failure = surcharge;

Civil action-ability – engaging in carelessness or negligence; failure = loss of office;

Criminal prosecution – engaging in gross negligence or willful malfeasance; failure = jail and/or fine.

ETHICAL DILEMMASTwo Common Types

Right vs. rightSituations where we believe there are

two conflicting sets of "right" values Torn between loyalty to someone or

something and your responsibility to the client or public

Your responsibility to your client trumps the value of loyalty or friendship

Ethics requires you do what's right, regardless of the personal costs.

ETHICAL DILEMMASTwo Common Types

Personal CostInvolves significant personal costAlso called moral courage ethical

dilemmasCost may be:

Financial – missed opportunity for financial gain Emotional – such as a loss of a friendship Social – loss of prestige, respect or social

position

The answer is usually simple but not easy!

ETHICAL CONFLICT FIDUCIARY RESPONSIBILITY VS

PUBLIC INTEREST

Example of an ethical conflict between fiduciary duty and public service dutiesFees – we have an public service

obligation to not give a “gift of public funds”

Indigent client owes fees – how aggressive should you be?

Which obligation is highest?Your examples?

Not only an introspective process We are stewards of the public’s trust The public must have confidence that

indeed the right thing has been done The “right thing” is for the public to know

that first the client’s and then the public’s interests are the guiding motivating factors in a public employees’ actions.

Err on the side of, when in doubt – don’t Ask yourself the hard questions

PUBLIC PERCEPTION

“NO PERKS” RULES Underlying Principles

Statement of Economic Interests (Form 700)

Democratic notion that public servants should be treated just like everyone else

Should not receive special benefits beyond the compensation provided by law

The “no-perk” rules fall into two basic categories:Perks that others offer you, andPerks that you give yourself because of

your access to and decision-making discretion over the use of public resources

HELPFUL CONCEPTS

First, Some Thoughts: Fiduciary obligations do not naturally

“flow” from societal norms They are created by the law to protect

the less powerful, fortunate and/or sophisticated from those who might take advantage of them.

Thus, “avoiding the appearance of improprieties” is an important concern

HELPFUL CONCEPTS

Demonstrating care, loyalty and good faith are critical, yet these ideals are hard to visualize and implement at the operational level

Standardization and consistency help!

HELPFUL CONCEPTS

Operational Controls That Can Help:

Dual Custody – requiring two people be present when carrying out key duties- Witnesses Back-up

Segregation of Duties – splitting work (especially work involving financial transactions) among diverse staff

No Delegation of Duties to Outsiders!

HELPFUL CONCEPTS

More Operational Controls That Can Help:

Policies and Procedures – conforming performance to consistent standards

Screening/Background Checks – Deputies/Staff/Vendors

Physical Controls – pre-numbered bags, vault access, numbered cable ties, etc.

HELPFUL CONCEPTS

More Operational Controls That Can Help:

Use your County Counsel! Document, Document, Document!

(Especially financial transactions!) Notice, Notice, Notice! Independent Audits Recourse to the Courts (petition for

instructions on noticed hearing)

Credits

Craig Hendrickson, MBA, JD, Los Angeles County PA; a very special thank you for the use of his ethics training materials

State of California – Department of Justice, Office of the Attorney General; AB 1234 Ethics Training

presented by: scarlet d. hughes, m.s.w. san joaquin county public guardian/conservator

Documents

public service duty

public servant

fiduciary responsibility

fiduciary duty conceptsto

fiduciary obligationpage

fiduciary ethicsmonday

ethical considerations

ethics lawsthe