President Gray's Testimony Before the Wisconsin State Assembly

STATEMENT OF

ANTHONY J. GRAY

CHIEF EXECUTIVE OFFICER AND PRESIDENT

INSTITUTE FOR GLOBAL ETHICS

BEFORE THE

ASSEMBLY COMMITTEE ON CONSTITUTION AND ETHICS

WISCONSIN STATE ASSEMBLY

FEBRUARY 27, 2018

PRIVATE PRIVILEGE VS. PUBLIC RIGHT: FRAMING ETHICAL DECISIONS

Thank you for asking me to speak here today, it’s truly an honor. My name is Anthony Gray, and I’m the President and CEO of the Institute for Global Ethics, an ethics thinktank headquartered in Middleton, WI. I’ve run IGE for the past five years, prior to which I served as Global Compliance Officer at Sikorsky Aircraft Corporation, where my responsibilities included internal investigations, ethics education and training, legal and regulatory compliance, enterprise risk management, as well as serving as chief ethics and compliance officer. Before that I was a member of the energy and finance departments at the law firm of Day Pitney LLP of Hartford, Connecticut, and, while in law school here at UW, served as Judicial Intern for Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court.

I currently serve on the Wisconsin State Bar Association Board of Governors, am past-President of the Nonresident Lawyers Division of the Wisconsin State Bar, and have previously served on boards of Lawyers for Children America, Community Health Services of Hartford, Hartford Community Loan Fund (CDFI). I was also a Commissioner of the Hartford Economic Development Commission, and am currently a board member at Forward Community Investments in Madison. Along with my J.D., I’ve received an M.A.R. in Ethics from Yale Divinity School and a BGS from the University of Connecticut.

Thank you again for having me.

These are important questions we’re discussing here, and what we’ve heard from Mike, Denis, Rick, and Mark has provided some important, meaningful context from a number of different perspectives. My role here is to discuss a bit about the process. That’s what we do at IGE. Instead of telling people what they should think about an issue, we focus on giving them the tools to reach ethical conclusions on their own. So that’s my goal: to discuss one possible process that could help us all reach an ethical conclusion.

So, to that end, I’m going to talk about a few things. First, I’ll briefly go over what we do at IGE, and how that process might apply here. Second, I’ll review the structure of what we call a dilemma, a particular sort of problem that pits two positive values against each other. Finally, I’ll go through the sides at issue here, and propose some potential structures for their resolution.

Private privilege and public right are both important ethical values, and it’s important to come at the issue from that angle—one doesn’t obviously trump the other, or we wouldn’t be sitting here today. It is a question worth examining because it is difficult. My hope is that whatever the resolution, it will not only be used to resolve the question at hand, but also to inform our own, personal views on disclosure and privacy in other arenas. After all, it’s not an isolated question. It’s constantly relevant on the local and national stages.

While I cannot tell you what to conclude, I can tell you that one way to determine whether a conclusion is ethically consistent is to examine whether it would apply in other, similar situations. If transparency only trumps privacy when the materials will serve your agenda, then you’re not pursuing transparency at all. That’s partisan self-interest. And there’s nothing ethical about that.

With that said, I’d like to talk about my organization a little bit.

The Institute for Global Ethics is the nation’s oldest ethics think tank. We’re an independent, nonsectarian, nonpartisan, 501(c)(3) nonprofit organization, whose mission is to provide practical tools to build ethical fitness and cultures of integrity at home, at school, in the workplace, and in society. For almost three decades, IGE has been focused on helping people reason through the ethics of daily living. As I said, our goal is not to tell people what to think, but to offer tools and frameworks that help them with how to think through tough ethical issues. In recent years, we’ve expanded our methodology to focus not only on individual attitudes and behaviors, but also human ecocultures, the contexts and cultures that must align and support individual efforts in order for organizations to act ethically.

Our most fundamental principle is what we call Ethical Fitness®, a thought process designed to resolve complex situations like this one. After all, we live in a complicated world, one that requires us to face difficult ethical matters every day, whether at work, at home, or in the news. To complicate matters further, these questions often present dilemmas, situations which—unlike your standard ethical choice, between right and wrong—present you with two or more reasonable, principled alternatives. These “Right vs. Right” situations are challenging, and although we see them every day, we are not innately equipped to solve them, even if we have a keen sense of what’s right.

That’s where our process comes in. Reliable enough that its core principles have survived over twenty-five years but flexible enough to reach diverse audiences, our process is built around group participation, shared ethical values, and the process of breaking down complicated ethical dilemmas into discrete, actionable steps.

As I said, we define a dilemma as a “right vs. right” situation, and although the process is considerably more in-depth, I’m going to walk you through three of the fundamental steps, as applied to the question of private privilege vs. public right. They are 1) values definition, 2) dilemma analysis, and 3) dilemma resolution.

VALUES DEFINITION

The first step, here, is easy: the opposing values in play are 1) the privacy of public employees, versus 2) governmental transparency. While we all might have our own opinions on which should outweigh the other in any given situation, I think we could all agree that, broadly speaking, both privacy and transparency are positive values. They are things we have ourselves cared about in our lives. We can easily understand when others need them. The issue isn’t that one matters more than the other—the issue arises because both matter. It is difficult to find the right answer, that is, because neither is necessarily wrong.

Let’s briefly take a look at each.

Privacy, or private privilege, is absolutely a fundamental good. We all know this. It’s important in our personal lives, but privacy also plays a role in how democracy functions. Anonymity is an important safeguard against voter intimidation, targeted campaigns, and other strong-arm tactics. This is amplified by how the expectation of privacy shapes our personal decisions. But voter information isn’t all that might need to remain private. It’s like they say, nobody wants to see how the sausage gets made. Messy compromises are required for legislation, and internal communications aren’t always made with the care given external releases. The expectation of privacy, that is, leads people to be more casual, more open, and, ultimately, to forge the connections and make the compromises necessary for government to function. Similarly, courts and other institutions often seal files, investigations, or particular pieces of evidence away from the public to protect the individuals involved. The story of government is the story of privacy, carefully modulated. From classified information in e-mails, to Watergate, to Area 51, to the entirety of the modern news cycle, privacy is a foundational value of government and democracy.

But it’s not the only one.

Governmental transparency promotes ethical behavior, supports legitimacy, and educates the public. Although it is arguably not best for the populace to have access to all information, they clearly have a right to a significant amount of the data produced and held by their government. We see this in acts like FOIA, whereby members of the public have a right to request access to various records. There is an undeniable benefit to informing the public. A democracy that operates in secret is arguably not a democracy at all. Similarly, between private parties, it is often best to disclose information. Not always, of course. But generally speaking, a policy of open communication is sound, absent compelling reason to keep some piece of information from the person requesting it. After all, the argument might go, what are you trying to hide?

DILEMMA ANALYSIS

Once we’ve identified the values in play, we look at what IGE calls the four dilemma paradigms. These are common situations into which dilemmas often fit, because they are some of the most persistent, fundamental conflicts that the human condition presents. My guess is that not only will they seem familiar, but also that they’ll remind you of dilemmas you’ve faced in your own lives.

The four categories of dilemmas are 1) Truth vs. Loyalty, 2) Individual vs. Community, 3) Short Term vs. Long Term, and 4) Justice vs. Mercy. Not all of them apply in any given situation, but one or more of them often does—we’ve already heard quite a bit about several, although not in precisely these terms. To me, the clearest paradigms that apply would be individual vs. community and short term vs. long term.

Individual vs. Community issues arise every day, at many different levels. After all, some sacrifice is almost always necessary for broader progress. On the other hand, disregarding the well-being of small groups leads to oppression, inequity, and strife. Because remember, this is not necessarily about one person compared to everyone—it’s about one entity, as opposed to the community at large. In this case, the privacy rights of an individual, or small group of individuals, are clearly being weighed against the benefits to the community of disclosure.

Another potential framework would be Short Term vs. Long Term. This is another classic concept in ethical thought, but also arises in our personal lives. Do we watch another episode of Stranger Things, or do we go to the gym? Do we order the cheeseburger, or the salad? How much do we put into our 401k every month? Almost every choice we make in our own lives requires some degree of balance between short- and long-term interests to be rational. Similarly, the short-term benefits of retaining or releasing the information here must be weighed against the long-term consequences. An ethical principle that applies in this situation, after all, does not only apply in this situation. To take the side of transparency in this case but champion privacy in all others would be hypocrisy. There must be some compelling, nonpartisan argument to explain why, of all the situations that have or might arise, the public only has a right to know in this one.

DILEMMA RESOLUTION

So now that we’ve clearly identified the particular values in play, and the paradigms that best describe their conflict, we need to work our way to a resolution. Our method at IGE draws on some of the most fundamental ideas from classical moral philosophy, but ultimately offers three of what we call Resolution Principles. These will be familiar ideas to most of you, I suspect, but it’s important to remember that no one principle is always correct. If that were the case, we wouldn’t consider all three. Rather, each principle is designed to best apply in particular situations. Which principle you believe best resolves this issue depends less on the principle itself, and more on how you, as the decision-making individual expressing personal agency, view its interaction with the dilemma paradigms. The three resolution principles are: 1) Ends-based, 2) rule-based, and 3) empathy-based.

Ends-based principles are, generally speaking, what you’d think of as utilitarian. They measure the consequences of each choice to determine which is right. The greatest good for the greatest number, that sort of thing. Is it right to steal bread to support your family? An ends-based principle might say yes.

Rule-based principles are not based on the consequences at all, but rather on German philosopher Immanuel Kant’s Categorical Imperative. In brief, would the world be a better place if everyone made a similar choice when placed in a similar situation? To take our bread example, if everyone who couldn’t afford an item simply decided to steal it, soon there would be none available at all and the seller would be out of business. On the other hand, if it were to be stolen only by people who had literally no other options to feed their family and no possibility of earning sufficient income in time, then the outcome might be different. As you can see, this is complicated. Much depends on how you frame the particular question, and how you limit the particular rule.

Finally, empathy-based principles. Basically, do unto others as you’d have them do unto you, most commonly codified in the Judeo-Christian tradition as the golden rule. Put yourself in the other person’s shoes. This requires a particular empathy, and can be challenging, but can also be very effective.

I’ve personally found that the most effective, consistent solutions are reached by working through a dilemma in each of these three ways. Sometimes, one result is clearly absurd. Other times, they all come to the same, logically consistent conclusion. But every single time, the process has helped me clarify my personal thinking on the topic. That is to say, it has always provided some degree of guidance, even if only identifying which questions in life are truly dilemmas, and which are manufactured by our own imperfect perception.

Ends-Based Principle

Looking at this dilemma under ends-based principles, it’s clear that the resolution depends on what actions would likely occur once the information was made public. We already know who benefits from continuing privacy: those who desire the information to remain private. That is only one side of the analysis, however. The other speakers here today may help you inform your own, personal conclusion on this question. Under one view, nobody would be harmed at all. Under another, that disclosure could cause substantial, if intangible, harm to a great many people. Some might think the disclosure would, in fact, only benefit democracy, while others firmly believe that it would be used to undermine it.

This is a particular challenge of the ends-based approach: oftentimes, the principles you bring into it will determine the conclusion to which it leads you. My only suggestion would be that, when addressing a question in this manner, you strive for objectivity as much as possible. We are all unavoidably subjective, of course, but ends-based principles require us to subjugate our own beliefs as to what should happen to a rigorous, rational investigation—based on history, facts, and data—into what probably will. To use the ends-based principle in any other way is more than inaccurate. It would be irresponsible.

Rules-Based Principle

Under a rules-based principle, the primary disagreement would be over how to frame the situation. Clearly, no single answer can encompass all disclosures, by all parties, to all who would request them. Not even George Washington would argue that, cherry tree notwithstanding. The precise delineation of private privilege versus public right, in this view, depends on the conditions you place upon it. What is the particular situation? What is the scope of disclosure? What were the expectations of privacy, and would it breach them? What are the motivations of those requesting, and what tangible role would the information play? These are complex questions, and require a similarly objective, similarly rigorous thought process as attempting to predict the likely outcome of each decision.

If a person’s goal is simply to validate their desired outcome, a logical fallacy known as confirmation bias, then none of this is worthwhile. It is a waste of everybody’s time. Principles such as this only become useful once those applying them buy into the idea that the world is better when people make more sound ethical decisions, even if they might not be the ones we want. The process itself, it would seem, presents something of an individual vs. community problem.

Empathy-Based Principle

Finally, applying the empathy-based principle, the answer seems rather clear: if you thought your information would be private, you’d want it to stay private. But on the other hand, if you truly believed that disclosure would benefit everybody, that would be your desired outcome. Here we see how the empathy-based principle can sometimes fail when applied to zero-sum games, because the outcome depends entirely on which party’s perspective you approach it.

Unlike the previous two principles, there is no level of intellectual rigor that can resolve this fact, although an idea from political philosopher John Rawls comes close. His notion of the Veil of Ignorance proposed that ethical thinkers imagine they had not yet been born, then craft a policy that would be fair regardless what segment of society they were eventually born into. In this case, the resulting policy would be a detail-oriented balance of public and private needs, protecting the individuals with a reasonable expectation of privacy while also providing the public with sufficient information.

CONCLUSION

If all that sounds complicated, that’s because it is. Difficult problems do not have simple solutions. The conflict between privacy and transparency is extraordinarily challenging, with the proper resolution often turning on a single, otherwise insignificant detail. Clear answers are often elusive, and often undesirable when found.

The process of democracy requires an obvious, clear answer less than it does an intelligent, informed process.

My hope is that my testimony today will help clarify some of the difficulties inherent to crafting such a process. After all, every important decision comes with its challenges, although the particular challenges may vary with the individual, the values in play, and the situation as a whole. By using our framework to evaluate the question, however, the points of conflict become clearer. Even if it does not lead to an obvious answer, the process almost always leads to a more productive discussion.

On that note, and in conclusion, I would be derelict in my duty as a practicing ethicist if I didn’t highlight how it necessarily requires bipartisan cooperation to resolve ethical issues. One entity cannot force another to be ethical. It must be a collaborative effort. The moment the authority to force that behavior exists, we’re no longer talking about ethics at all. We’re talking about compliance. Somehow politics has become divorced from the art of the possible—the principled, hard-fought compromise—and the notion of compromise reduced to the moral equivalent of capitulation or, worse, complicity. If we want to move forward as a state, and a nation, we need to stop judging ethical issues against a partisan divide, and start working together to find the right answers.

Thank you for the opportunity to contribute our expertise to this hearing, and I look forward to answering any questions you may have.