Nov. 29, 2007

Time’s Up — Or Else!

By Eric Arnesen

Three things caught my eye this morning, each conveying a “time’s up!” warning. First, while savoring my first cup of morning coffee, I encountered a long article on the front page of the Chicago Tribune’s Metro section covering former Illinois Governor George Ryan’s long-delayed passage from freedom to prison. Convicted in a corruption scandal case involving the Republican’s seedy and illegal practice of selling drivers’ licenses to truckers in exchange for large under-the-table contributions while he was secretary of state, the unrepentant Ryan lost his last chance to remain on bail when the U.S. Supreme Court declined to extend his freedom pending his appeal. Vying for my attention was a Trib front page story about federal interest in possible wrongdoing by the allies of Democratic Mayor-for-Life, Richard M. Daley, who allegedly have been pressuring landowners in the mayor’s home base of Bridgeport to sell to developers who, as it turns out unsurprisingly, are friends of the mayor. These alleged, shadowy practices are, thanks to intrepid investigative reporters and the feds, finally out in the light.

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Upon finishing my coffee and retreating to my computer, I had my personal “time’s up!” moment when I encountered the last item in my e-mail: “Final Notice.” The sender was the University of Illinois Ethics Officer and its subject was the “Mandatory Ethics Training for Eric Arnesen.” The moment I had been dreading, when I gave it any thought at all, had arrived at last.

In my own defense, let me state clearly that I was not yet in trouble, for the deadline for completing this year’s “annual ethics training” was still a week away. However, officials for a state that regularly turns a blind eye toward corruption in the office of Democratic Gov. Rod Blagojevich are intent upon making the rest of us know the rules. (The latest revelations concern the large commission collected by the governor’s wife, a real estate agent, for a condo sale transaction on behalf of an Illinois businessman and campaign contributor; the purchaser was a “tollway lobbyist and a longtime Blagojevich insider,” according to press reports. As it turns out, the condo seller received a $2 million no-bid contract — subsequently increased to $2.5 million — the day before the closing; since then he has received two additional no-bid contracts.)

But I digress. If I were to go off on a tangent for every city and state corruption investigation, well, I’d never get to the part about my ethics tutorial.

The clock is ticking. I have until 11:59 p.m. on November 14 to complete my online training ... or else. The “or else” consists of reporting my name to the Office of Executive Inspector General for the Agencies of the Illinois Governor. And then what? Penalties could include “a hearing before the Ethics Commission and/or the assessment of fines up to $5,000.” For professors at a perennially underfunded public research university where parking fee increases often exceed salary raises, five grand is not something at which to scoff. And if that threat didn’t catch my attention, the rest of the sentence did: Employees failing to “complete their online ethics training during the designated window will be subject to disciplinary action by the university.” Ouch. Granted, it’s not Abu Ghraib or Guantanamo, but the very idea of being drawn into the university’s bureaucracy is frightening to faculty members accustomed to being ignored and left alone.

So I can’t put it off any longer. I log on to take my mandatory “interactive” “Web-based training course.”

First things first: After accessing the program, I am invited to create a new password of between 4 and 10 alphanumeric characters. I mistakenly enter an 11 character password — “wasteoftime” — but happily the program recognizes neither my sarcasm nor my counting error. I’m in. Up and running.

I must now pace myself. Can’t go too fast, for my “training actions and time may be monitored”! If I complete the program too quickly, then some unseen force may yank my “Certificate of Completion” and require me to pursue an unspecified alternative route to satisfying my ethics obligation. (Seriously – a colleague of mine was penalized last year for taking and passing the on-line test too quickly! Never mind that he got the right answers and demonstrated his knowledge of our ethics obligations. He was too fast – and essentially got pulled over and ticketed by the ethics police for exceeding the speed limit.)

We begin with the “why an ethics tutorial” issue via a multiple choice question:

The State of Illinois makes me take this annual ethics training because:

• a) Ethical conduct is required of me as a state employee.
• b) It is required of me by the State Officials and Employees Ethics Act.
• c) Carrying out our responsibilities as state employees in an ethical manner helps to maintain the public’s trust in our state government.
• d) All of the above.

If you guessed “d,” congratulations and move on. Now that I know that I’m doing my part to maintain the public’s trust in state government, I feel better. But other reasons, we are informed, include helping state employees “avoid inadvertently violating the law,” reminding us “that the state does not approve of ethics violations.” Given the track record of city, county, and state officials ... keeping a straight face is harder than I had expected.

So: What’s unethical? The tutorial, once we get past large quantities of material on the legislative history and administrative functioning of ethics legislation and the operation and powers of the Office of Executive Inspector General for the Agencies of the Illinois Governor (OEIG), which works with the Executive Ethics Commission (EEC) and the Office of the Attorney General, finally gets down to this.

First, the long list of prohibitions. Can’t engage in “prohibited political activities” — that is, can’t use “state work time, property, or resources” to campaign for political candidates or on behalf of political referenda (no fund raising, petitioning, or polling; no campaign leaflets on office doors, no selling tickets to the governor’s gala ball); can’t treat state job applications differently “on the basis of the applicants’ political affiliation” (tell that to the U.S. Justice Department and just about every state, county, and municipal hiring department in Illinois — we’ve got a long history here in the Land of Lincoln!); can’t retaliate against subordinates who turn us in for ethics violations; can’t accept most gifts from lobbyists or business entities regulated by or doing business with the state; can’t place our interests or those of friends, relatives, or business associates “above those of the college or university of the state”; can’t work on that second job (could this be an indirect acknowledgement of low state salaries? Probably not....) on university work time; can’t hire our relatives based on our “relationship with them”; you get the idea. I don’t think I needed an interactive online tutorial to learn these straightforward rules. So a hint to state ethics folks: Go low tech. It might be more useful to print these banned activities on a bookmark we can carry around with us. It would be much cheaper than a Web-based program and probably more effective to boot.

Second, the shorter “must-do” list. If contacted by the ethics investigators, “participate” in the requested interview, be truthful in your testimony, and respect the confidentiality of the investigation (no First Amendment issues in the workplace, alas); and comply with mandatory work time reporting rules by accurately and periodically reporting our work time “to the nearest quarter hour.”

Seems pretty clear cut, no? In the examples offered to help us understand right from wrong, we find no grey areas. In one case study, we are told of a “multi-year scheme by a state employee who misappropriated more than $100,000 in public assistance funds” by falsifying documents “seeking reimbursement from the state for transportation services supposedly provided to the state by the employee’s spouse” (who, as it turns out, didn’t provide those services) and then “shredded much of the evidence supporting the scheme.” In another example, we learn about a state agency claims representative who “assisted others in processing hundreds of fraudulent claim applications” through “mail fraud.”

Now I happen to be one of the few Americans who does not watch “Law and Order,” even on the treadmill at my local YMCA. But I don’t need an interactive ethics program to tell me that misappropriating money, falsifying and shredding documents, hiring a spouse who does not deliver contracted services, or processing fraudulent claims applications are either ethics violations or felonies. Would I be wrong or naïve to suspect that the perpetrators of these schemes would not have been dissuaded from undertaking their scams by knowing that theft, falsification, destruction of evidence, and the like are not ethical? If then Secretary of State Ryan and his cronies had taken our online interactive tutorial, would they have hesitated before accepting “bribes for between 1,000 and 2,000 trucker’s licenses,” in the Tribune’s words, resulting in at least nine highway deaths?

I can imagine an alternative “dialogue” example between Larry and Susan — the two fictional employees who engage in didactic conversation in our on-line tutorial — helping us to navigate what the ethics exam writers see as murky ethical waters:

Larry: This is great. I’m siphoning off tens of thousands of state dollars by submitting false patient claims and phony invoices. That should help cover the costs of my new Michigan cabin. Maybe I should hire a relative for a no-work job too.

Susan: Before you start those back woods renovations, Larry, you should know that misappropriating state money by lying, cheating, and stealing is not ethical.

Larry: It’s not? Well, what if I just shred the evidence? They’ll never catch me and I can fish to my heart’s content on long weekends made longer by submitting falsified time sheets.

Susan: I’m afraid that too is unethical.

Larry: I hadn’t thought of that. But what’s to stop me from going ahead and violating state ethics rules anyway?

Susan: More bad news, Larry. Under the ethics law, I have an affirmative obligation to turn you in.

Larry: But, but, but (sputtering)…. I will get back at you for doing this, Susan. You’ll rue the day you ever called me unethical.

Susan: Good news for me, bad news for you, Larry. I will “confidentially” report you and besides, there’s nothing you can do to punish me. You can’t retaliate from your supervisory position over me. If you do, you can be disciplined and I can go to court to seek unspecified monetary damages.

Larry: I guess you’re right. I just didn’t know the rules. Now that I do, I won’t submit those false claims, invoices, and time sheets, and I won’t retaliate against you either. Thanks for caring enough to share this valuable ethics information with me!

Susan: Think nothing of it, Larry. Just doing my ethical duty.

This imaginary dialogue raises new issue. As state employees, the tutorial informs us, we “have a duty to report violations of laws, rules, or regulations.” How? There is one toll-free hotline for “non-emergency” violations, another for “emergency” situations, including “illegal weapons” possession, “bodily injury,” or “criminal sexual assault.” Now, when I think about “illegal weapons” usage or “criminal sexual assault,” the phrase “potential ethics violation” is not the first one to cross my mind, even after the “911” and “help!” do.

Perhaps, however, I — and my colleagues — have genuine reasons to worry. In a multiple choice “Self Check” in the tutorial, we learn that “time reporting is mandatory under the State Officials and Employees Ethics Act.” Under the “Reminder of Key Laws, Rules, and Policies — Personnel and Other Policies” section, we are further informed that as state employees, we are “expected to document the time that you work for the college or university accurately and on a timely basis.” Indeed, “time sheets must be submitted by each employee periodically and must document the time spent each day on official state (university or college) business to the nearest quarter hour.” Now I know for a fact that many — perhaps all? — of my faculty colleagues in the College of Liberal Arts and Sciences do no such thing.

So there it is: A massive, universal ethics violation by my institution’s faculty. And here I am with a dilemma. Do I abide by the obligation to rat them out (rules against self-incrimination would allow me to exempt myself from my charges, right?) or do I violate the state’s ethics code by looking the other way? Imagine — hundreds and hundreds of hearings and disciplinary actions, potentially resulting in widespread dismissals. Perhaps my colleagues would be replaced by a more ethical faculty, perhaps not. At least I do not need to live in fear of retaliation, since no one will know it was I who turned them in. And if they did, I can always seek disciplinary action and damages against those who strike back!

An alternative suggests itself. Perhaps the time reporting requirement to-the-nearest-quarter-hour doesn’t actually apply to faculty. It’s hard to imagine that the ethics czars don’t know what rules apply to which employees. But they state, categorically, that “time reporting” is required of all university employees and that time sheets must be submitted by “each employee” – no exceptions listed – to the “nearest quarter hour” – again, no exceptions listed. So I arrive at two possible conclusions: Either a) the tutorial is a poorly designed response to a poorly thought-out ethics requirement or b) it’s a secret plot to strip faculty of control over their time by falsely declaring that we are subject to specific rules that, in reality, do not apply to us.

Now, I am in no position to know whether “a” or “b” is the correct answer, since the question wasn’t on the “self-check” portion of the tutorial. Both, it seems to me, would be ethics violations. In the case of “a,” it is a misuse of state funds to produce a shoddy tutorial that wastes vast quantities of employees’ time and state dollars since, at a minimum, the public’s trust would be diminished if knowledge of this tutorial was revealed. In the case of “b” — well, anything to strip faculty of control, under whatever pretense, is self evidently unethical. Whatever the case, I do know that I have an affirmative obligation under the law to report what I believe to be an ethics violation.

Having received my “Certificate of Completion” from the OEIG, I must know my stuff. I guess I’m obligated to pick up the phone to call my university’s ethics office to report potential violations ... by that very office.

At least I’m safe from retaliation. After all, the State of Illinois does not approve of ethics violations.

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