Ethics Newsline®

I have no record that Dennis Hastert ever went scuba diving in old Maine quarries. If he did, the speaker of the U.S. House of Representatives would have noticed what divers call the thermocline. Sinking down through the first few feet, he’d have found water warmed by the sun to a passable temperature. Then suddenly, invisibly, he’d have passed through a layer of water only a few feet thick. On the other side the water would be screamingly, congealingly cold. No gradient, no gentle change. Just wham! — a wall of frigidity.

If you can imagine a horizontal thermocline — the kind you hit on a hot day when you drive over that last ridge separating the inland from the seacoast and the temperature suddenly drops ten degrees — you can appreciate what Speaker Hastert faced in the congressional page scandal. If you can understand that his thermocline involved not distance but time — a change within moments rather than yards — and that it was a moral rather than a physical thermocline, you can grasp the gravity of the situation.

How does a moral thermocline work? Things start out normally. You’re going along fine, leading the routinely ethical life, everything warm and copasetic. Then suddenly things are different. You might not realize that you’ve come up over that last little ridge — no signposts, no flashers, no warnings. But abruptly the moral climate shifts.

Since the travel is temporal rather than spatial, you can’t turn back. And unlike a physical thermocline, this one not only changes the climate but dissolves the road itself. If you try to keep plugging forward with your ordinary, garden-variety integrity, you’ll find the straight-ahead path fading into obscurity. In its place is a fork. One way leads upward into moral courage; the other leads downward into what could be a career-ending move. There’s no middle ground.

We don’t know yet what the House ethics committee learned from hours of testimony last week concerning former Florida representative Mark Foley, who resigned last month after being faced with sexually explicit messages sent to teenage congressional pages. Nor do we know when Speaker Hastert and other members of the congressional leadership first were alerted to Mr. Foley’s behavior. Was it a few months ago? Was it early in 2005? Was it as long ago as 2000? Whenever it was known, why was it kept secret — to honor the wishes of one former page’s family, or to protect congressional Republicans from the scandal now crashing down about their ears?

Whatever the answers, one thing is clear: Speaker Hastert and his colleagues at some point must have encountered a moral thermocline. There must have been a moment when they were ignorant. Then, suddenly, they crossed the ridge: They had been told.

In that, they were little different from so many other high-profile figures who have passed through an abrupt change in the ethical climate. Church leaders, along with former presidents Richard Nixon and Bill Clinton, come to mind. Facing thermocline moments regarding abusive priests, the Watergate break-in, or the Monica Lewinsky scandal, each failed to act in the moment. Each could have chosen the difficult upward climb into moral courage. Instead, each hoped they could weather the storm and keep traveling the road ahead. When that road evaporated, the opportunity for moral courage had passed. Each came face to face with significant self-destruction as the only remaining option.

Moral thermoclines, like their physical counterparts, are invisible. If your ethical senses are dull, you never realize you’ve passed through them until it’s too late. If those senses are sharp, you may feel them as they happen — although, if your routine matters more than your sensitivity, you may deliberately ignore them. If you do in fact see them for what they are, your choices are clear. Either you muster the moral courage to break the momentum and take the tough stand for conscience, or you default on your integrity. Sometimes that default can be pugnacious and defensive. At other times, it can come from uncertainty and dithering — the kind of spinelessness that president John F. Kennedy described when, citing Dante, he noted that “the hottest places in hell are reserved for those who in a period of moral crisis maintain their neutrality.”

If the saga of Mark Foley claims more victims than its creator, it will do so largely because of just such neutrality. Foley’s behavior was egregious. Its uncovering revealed a genuine moral crisis and constituted an authentic moral thermocline. Once uncovered, there was no ordinary pathway left: Business as usual was no longer an option. The choice was between moral courage or unethical action. Hence the importance of putting to House leadership that archetypal question from Watergate days: What did they know, and when did they know it?

©2006 Institute for Global Ethics

Five nonprofit groups probably violated their tax-exempt status “by laundering payments and then disbursing funds at Mr. Abramoff’s direction; taking payments in exchange for writing newspaper columns or press releases that put Mr. Abramoff’s clients in a favorable light; introducing Mr. Abramoff’s clients to government officials in exchange for payment; and agreeing to act as a front organization for congressional trips paid for by Mr. Abramoff’s clients.”

– From a Senate Finance Committee report that examined whether nonprofit groups aided corrupt lobbyist Jack Abramoff. The report concluded that five groups worked with Abramoff to launder money, hide the funding for trips, and author op-eds and “objective” economic analyses that pushed the positions of Abramoff’s clients.

“The groups named in the report are Norquist’s Americans for Tax Reform; the Council of Republicans for Environmental Advocacy, which was co-founded by Norquist and Gale Norton before she became secretary of the interior; Citizens Against Government Waste; the National Center for Public Policy Research, a spinoff of the Heritage Foundation; and Toward Tradition, a Seattle-based religious group founded by Rabbi Daniel Lapin,” reported the Washington Post.

SAN FRANCISCO
The ethics scandal that engulfed Hewlett-Packard continued to dominate business news last week. Among the developments:

• HP hired a new chief ethics officer last week. Jon Hoak was chosen to replace Kevin Hunsaker, who, along with former chairwoman Patricia Dunn, was charged with four felonies after the computer company acknowledged it had used improper methods to track down leaks to the press form corporate board members. According to a report from CNET, HP CEO Mark Hurd said that his company “has traditionally led the industry in adherence to standards of ethics, privacy and corporate responsibility…. With Jon’s guidance, we will lead again.”
• Two private investigators and one of their employees pleaded not guilty last week to felony counts related to charges they pretended to be HP board members or journalists as part of a ruse to obtain private phone records. They were released without bail from Santa Clara County Court pending another court appearance in November. According to the San Jose Mercury News, the attorney for one defendant said his client had no idea that he was obtaining records of HP directors, and the attorney also claimed that pretexting was a common tactic among investigators. One of the firms involved, Action Research, specializes in finding missing children, organ donors, and deadbeat parents, the Mercury News reported.
• A survey by a major research firm found that the perception of HP has suffered because of its spying scandal, but that most customers say the events won’t affect their purchasing plans. The magazine Computerworld reported that only three out of 28 companies surveyed by Forrester Research, said they may reevaluate their existing plans to work with HP.
• California attorney general Bill Lockyer dismissed remarks made by former HP chairwoman Patricia Dunn on last week’s edition of “60 Minutes,” during which she claimed that she was a victim of a “classic disinformation campaign” by former board member Thomas Perkins. In the interview, Dunn also said she did not arrange or condone the pretexting tactics used by private investigators. Lockyer told Reuters that, “Patti has a vigorous PR defense that seems to have very little relevance to the facts or court case … but if it makes her feel better about her life, that’s good.” Lockyer also said he plans to continue his investigation into the HP affair.

WASHINGTON
Ethics in government remained a fixture in U.S. national news last week and is expected to be a key factor in several tight congressional races. Among the top stories of the week:

• The head of the board that oversees the House page program late last week conceded that Republicans mishandled some aspects of the incident involving lurid emails from former congressman Mark Foley (R-Fla.), according to a report from the Associated Press. Following three hours of testimony before a House ethics subcommittee, Rep. John Shimkus (R-Ill.) said that in hindsight, “I think there’s stuff everybody would have done differently.” While Shimkus said he confronted Foley about sexually explicit emails to a teenage page, he admitted he did not inform the two other page board members; Shimkus said he instead followed the wishes of the page’s parents, who wanted the incident to remain private. The panel is attempting to construct a timeline of Foley’s communications with a variety of pages over a period of years to identify who knew what and when.
• Rep. Bob Ney (R-Ohio) last week pleaded guilty to charges related to the sprawling probe centering on disgraced lobbyist Jack Abramoff, admitting accepting thousands of dollars in gifts in exchange for providing official favors. Ney has indicated that he plans to resign within the next few weeks, but said he will retain his seat for now “to make sure his staff is taken care of” and to deal with constituent issues, according to his lawyer and the New York Times. Ney’s delay angered the White House and his Republican colleagues, who are beset by scandals and bad poll numbers in the run-up to November’s midterm elections. Since congressional rules do not require the resignation of convicted lawmakers, the Times noted that Ney can stay — at least until his fellow Republicans move to expel him, a step they said last week would be coming quickly.
• Although the House and Senate largely abandoned the ethics reforms they promised when the Abramoff scandal was atop headlines, political candidates nevertheless are paying much lip service to the issues in their fall campaigns. Exercised by Foley’s scandal and Ney’s sentencing, candidates are hurling the label of “lobbyist” at their opponents, attacking each other for being cozy with special interests, reported the Washington Post. “Voters are tying both of these scandals together,” Paul Miller, president of the American League of Lobbyists, told the Post. “First with Abramoff and now with Foley, corruption has risen to play a big role in this election. It disappoints me, but it’s happening.”

NEW YORK
Billionaire Warren Buffett last week used plain talk to warn his senior staff about the temptations of ethical shortcuts.

The second-richest man in the United States said that “the five most dangerous words in business may be, ‘Everybody else is doing it,” according to Forbes.

The Financial Times reported that Buffett ordered top managers at his Berkshire Hathaway Group to crack down on unethical behavior, citing the recent spate of allegedly backdated stock options in various high-tech industries as an example of “bad behavior.”

The Times said it secured a memo in which Buffett warned that some misbehavior is inevitable in his 200,000-employee company, “but we can have a huge effect in minimizing such activities by jumping on anything immediately when there is the slightest odor of impropriety.”

“Berkshire’s reputation is in your hands,” Buffett added.

According to a report from Bloomberg, Buffett warned that good corporate behavior goes beyond simply adhering to the letter of the law. He also told executives they must be comfortable with their actions if they were printed “on the front page of a newspaper.”

LONDON
Corruption is widespread and continues to taint business dealings around the world, according to a survey released last week.

The annual global corruption survey by the consulting company Control Risks and the law firm Simmons and Simmons found that nearly half of the 350 businesses surveyed said they lost a deal because a competitor paid someone a bribe, the Reuters news agency reported.

About one in ten firms surveyed said that paying bribes could account for half the cost of a project, according to a report from the U.K. Guardian, which noted that the oil, mining, and gas industries appeared to be the most vulnerable to bribery, partly because of the huge investments tied up in such projects and also because decisions are often made by low-paid government officials.

The South African publication Business Day reported that about a third of the respondents predicted that the use of bribery to close deals would probably increase over the next ten years.

Of the seven economies surveyed — Brazil, France, Germany, Hong Kong, the Netherlands, the United Kingdom, and the United States — Hong Kong was reported to be the most affected by corruption, and the United Kingdom the least, the BBC reported.

SAN FRANCISCO
A sprawling investigation into accounting practices apparently resulted in the resignations of the leaders of two technology companies, according to press reports.

The Los Angeles Times reported that George Samenuk, the chairman of McAfee, Inc., a Santa Clara, Calif.-based software company, retired last week and the president of the company, Kevin Weiss, was fired over a stock-option issue.

And at the tech-information company CNET Networks, Inc., co-founder Shelby Bonnie resigned as chairman and CEO, the Times reported.

According to reports from USA Today and BusinessWeek, both companies intend to restate some of their financial results after being snared in a stock-option probe that has touched about 120 companies. None of the executives has been formally charged with any wrongdoing.

Over the weekend, backdating took down another high-powered executive, William McGuire, chairman and CEO of UnitedHealth Group, the nation’s second largest health insurer.

McGuire was forced to step down and return some of the $1.1 billion he holds in “harshly criticized stock options,” reported the New York Times. UnitedHealth also fired its general counsel and a board member, according to the paper.

The San Francisco Chronicle reported that the options backdating probe is being engineered by a federal task force operating out of San Francisco and focusing primarily on Silicon Valley, where stock options have long been “coin of the realm.”

The investigations center mostly on the backdating of stock options.

A stock option is an offer made by a company to allow someone to buy shares of stock in the future at a predetermined price. The initial price often is set as the market price of the stock on the day the option was granted, making the stock option an attractive commodity because stock prices in expanding firms, such as those in Silicon Valley, are usually expected to rise quickly. Because they promise great future value but involve little immediate outlay of money, stock options are a popular recruiting tool for cash-strapped startups.

But investigators are alleging that some companies have backdated the granting of options to times when prices were even lower. That action, in and of itself, is not illegal, but hiding the details of the arrangements and the income is.

STOCKHOLM, Sweden
At a time when the limits of free expression are being tested worldwide, the award of the Nobel Prize in literature struck a resounding chord last week.

Orhan Pamuk, the first Turkish citizen to win a Nobel Prize, has been at the center of controversy for several years, most recently being charged with “insulting the nation’s identity” after telling a newspaper that Turks were afraid to talk about the deaths of a million Armenians during World War I, according to reports from Bloomberg and NPR.

The issue is one of the latest confrontations centering on the rights of dissidents to air their views versus the rights of governments to clamp down on what they regard as dangerous and deceptive expression.

As CNN reported, Turkey long has been sensitive about claims that Armenians were the victims of a genocide. The Turkish government claims that both Armenians and Turks were killed because of warfare, not genocide, and has prosecuted those who claim otherwise.

At the same time, a bill now before French lawmakers would make it a crime to deny that the Armenian deaths were a genocide.

The issue has taken on new significance, reported the Financial Times, because the free-speech question has emerged as an issue in Turkey’s application to join the European Union, with some critics calling on Turkey to allow greater freedom of expression as a condition of membership.

LONDON
Britain’s highest court last week returned what many observers feel is a landmark decision granting broader freedoms to investigative journalists writing about public figures.

Five law lords in the House of Lords ruled in favor of a public interest defense that makes it more difficult for public figures to bring a libel action, essentially bringing press freedoms in Britain closer to those enjoyed by U.S. reporters, the Times of London reported.

According to the BBC, the judges overturned two lower-court judgments that required the European edition of the Wall Street Journal to pay about $74,000 to a billionaire Saudi businessman who claimed that he was defamed when the paper reported that his bank accounts were being monitored to assure that he did not funnel money to terrorists.

The Journal argued that even though the claim may have been untrue, the subject was in the public interest because it illustrated how seriously the U.S. government was taking such investigations, the London-based Independent reported.

The U.K. Guardian noted that British libel laws long have been viewed as anti-press, and many in the media have claimed that the laws have had a chilling effect on investigative journalism.

Lord Hoffmann, who delivered the judgment, said that the central question in libel cases involving public figures should be whether journalists “behaved fairly and responsibly in gathering and publishing the information,” according to the. Guardian.

Lady Hale, another of the law lords, concurred. “We need more such serious journalism in this country and defamation law should encourage rather than discourage it,” she said, according to the Guardian report.

NEW YORK
Ethical concerns about who has the right to end efforts at resuscitating patients are being debated by lawmakers and the medical community, according to a report last week from the New York Times.

While CPR and other resuscitation measures can be effective for patients who have a sudden heart attack or breathing problem, the Times noted that the technique is not effective for repeated use on gravely ill patients.

Medical ethicist Daniel Sulmasy recalled a case where as a young doctor he was compelled to administer CPR on what he felt was a hopelessly ill patient.

“Why was I forced to crack this person’s ribs?” he asked. “Why couldn’t we have let the patient die in peace?”

Times reporter Jan Hoffman wrote that many doctors side with Sulmasy, believing that “their medical judgment about whether CPR will be effective in a given patient’s case, and their knowledge of the havoc it can wreak on a dying body, should prevail. But a patient’s representative, who is often a relative, may believe that every medical option should be exercised and that a miracle could be just a chest compression away. And patients’ families, spurred on by TV medical dramas, often mistakenly believe that CPR is almost always effective — a notion emphatically disproved by studies.”

“The debate over who makes the decision raises fundamental challenges to medical integrity as well as patients’ rights and can rub feelings raw for all concerned,” Hoffmann wrote. “Hospitals around the country and some state legislatures have wrestled with how to balance these competing values, reaching different conclusions.”

UPI noted that state laws are inconsistent. In New York, a doctor must get a court order to overrule the wishes of a patient’s designated representative in cases where the representative wants to continue resuscitation efforts, while in Texas, the laws tend to side with the physician.

Also, reported UPI, patients’ families are often reluctant to consent to a “Do Not Resuscitate” order because they believe it implies they have given up on their loved one.

LONDON
The British press is reporting on one of the more novel ethical dilemmas in recent memory: the moral implications of using technology to stimulate and improve brain function.

An exhibit at the Science Museum of London features exhibits on various ways that biofeedback sessions — monitoring brainwaves and adjusting behavior, or using certain sound patterns to influence the thinking pattern — can improve concentration and abilities such as playing music, according to a report from the U.K. Guardian.

But in addition to discussing how creativity and ability can be enhanced and how brainwaves could be used to simulate movement in a virtual world, participants in the exhibition also are discussing some potential ethical complications, according to the BBC.

For example: Will it be ethical for children to use neurological mind training to improve their grades?

Would it be ethical not to use the emerging science to train workers to perform better, as in the case of a doctor in a busy emergency room whose concentration may wander without technological intervention?

Because modern technology likely will be able to scan the brain for evidence of deception, will it be ethical to use this as evidence in court cases? Or not use it?

Emma Hedderwick, exhibition manager, told the BBC: “Researchers have already been able to use today’s technology to diagnose and treat many conditions that affect the brain, allowing new insight into how our brains work…. But in the future, could it become common to use these technologies for personal enhancement? “

“This new research is both exciting and fascinating,” Hedderwick said, “but it is important to consider the ethical issues of using it to better our brains.”

From the Conference Board:

“More corporate boards are becoming actively involved in providing oversight into companies’ ethics and compliance programs, according to a report released today by The Conference Board.

“The report is based on a survey by The Conference Board and Corpedia of 225 companies about the design and implementation of their compliance and risk assessment programs.

“Documented board involvement in ethics and compliance programs jumped from 21 percent in 1987 to 96 percent in 2005. Some 79 percent of corporate board member participants in a similar Conference Board survey in 1987 had no contact with their company’s ethics program; but by last year only 4 percent of boards surveyed were not involved.

” ‘With the growing participation of boards in ethics, it is most likely that more high-level executives are responsible for these programs,’ says Ronald E. Berenbeim, primary researcher and director for The Conference Board Working Group on Global Business Ethics and Principles. ‘This is encouraging because ethics and compliance issues are becoming increasingly important to the welfare of global companies.’

“Nearly two-thirds or 70 percent of survey participants reported training more than 90 percent of their workforce in their companies’ code of conduct. This figure is little changed from the 78 percent who reported training in code of conduct in a 1998 survey from The Conference Board….

“Another sign of changing times is that more than one-third of the companies surveyed in 2005 (34 percent) conduct more than 90 percent of their training through E-learning programs.

“The vast majority of participants (91 percent) in the latest study maintain an anonymous reporting system whereby employees can report observed misconduct. The prevalence of hotlines is, perhaps, the most significant change since 1998 when the figure was only 52 percent.

“Unlike the 1998 survey, The Conference Board has now also documented an increase in so-called whistle-blowing systems outside the U.S….

“Among the companies that analyze general risk to ethics and compliance program effectiveness, an assessment of internal policies and practices (95 percent) is a nearly universal subject. The next two most frequent risk assessment exercises involve employee understanding of ethics and compliance systems (77 percent) and anonymous reporting systems (75 percent)….”

“The ultimate result of shielding men from the effects of folly is to fill the world with fools.”

– Herbert Spencer (English philosopher, 1820-1903)