Governance Through Morals, Ethics or Rules: Assessing Employee Conduct Against Legal and Moral Codes; an Emerging Standard Without a Rule of Law?

(From Penn State Faculty Senate look for ways to curb student loan debt, Centre Daily Times)

“I rise to make the following motion:  That no employee, faculty member or other agent of the University be required, as a condition of employment, to adhere to standards of conduct that are not specified by rules, regulation, or legal requirement.  Failures of moral obligations alone should not be made a basis of evaluation or job performance.  The HRs and other appropriate University regulations should be amended to reflect this requirement.” (A.E. Luloff-Agricultural Sciences) (Pennsylvania State University Faculty Senate, Agenda Tuesday, March 13, 2012 – 1:30 p.m.; 112 Kern Graduate Building; G Unfinished Business)

Judging an employee's conduct by its conformity to law and morals raises important and interesting issues.  Like my fellow Senators, and especially in my role as Chair Elect of the University Faculty Senate, I have been asked to consider a Senate motion dealing with the place of morals in the construction of University rules.  What follows are my thoughts on that motion in the context of recent thoughts about the issue from our Governor, from the Penn State Board of Trustees in their justification for the removal of Coach Paterno and President Spanier, and the University President's "Promise to the Penn State Community."

ead more here: http://www.centredaily.com/2012/03/08/3119072/pa-governor-joe-paterno-should.html#storylink=cpy

(Pix (c) Larry Catá Backer 2012)

Since the arrest of Tim Curley, Penn State's former athletic director, and Gary Schultz, a university vice president who oversaw campus police, in connection with the child sex abuse scandal involving former assistant football coach Jerry Sandusky, the Pennsylvania State University has moved to the center of discussion about the future of education and the operation of educational institutions in the United States. This has produced a number of interesting and important discussions, from the organization and function of university boards of directors, to the meaning of shared governance,m to the role of the political branches in the operation of an educational institution, to the role of athletics (and its operation) within a post-secondary educational institution.

But in the aftermath of these arrests, and the terminations of former head football coach Joe Paterno and the resignation of former University President Graham Spanier, the university and some of its stakeholders have also sought to change the governance structures of the university, and particularly those that impact university employees.  It is in this context that the scandal has raised issues that can have important ramifications for law beyond the university.  To that extent, they are worth considering. Among the most potentially important are what appear to be suggestions of morality as an unspecified condition of employment.  The imposition of moral duties to employees suggests a change in the way employees understand their relationship with the university and the scope of their obligations.  But to the extent that moral, unlike legal, duties are unspecified, it also raises potentially significant rule of law issues that, at their extreme, could suggest an arbitrariness that is incompatible with the fundamental objectives of the university and the basic premises of a rule of law system.

The issue or morals in governance and its role in university governance is nicely contextualized by an issue facing the Penn State University Faculty Senate--a motion to  limit the use of unspecified morals in faculty assessment and discipline.  The context is nicely framed by  some remarks made by Pennsylvania Governor Corbett, President Erickson's Promise to the Penn State Community.  The merits of the motion.

1.  The Governor:  

 Gov. Tom Corbett said Thursday that he wishes former Penn State football coach Joe Paterno had done more after telling university officials about child molestation accusations against one of his assistant coaches.
Corbett also said in an interview (http://bit.ly/wzsZ1u) with WPVI-TV in Philadelphia that he and his fellow Penn State trustees were right to fire the legendary Paterno last fall even though the coach met his legal obligation to report the allegation against Jerry Sandusky.
"I wish he would have followed up after he made that report," Corbett said Thursday.
A graduate assistant told Paterno in March 2002 that he had witnessed Sandusky sexually assaulting a boy in the university's athletic facilities. Paterno then relayed a version of that story to a Penn State administrator. (From Corbett wishes Paterno had done more, followed up on report, Centre Daily Times, March 9, 2012).

 - - - - - -

(From Corbett wishes Paterno had done more, followed up on report, Centre Daily Times, March 8, 2012).

Governor Corbett was speaking to justification for the termination of Coach Paterno a few months before his death.  He suggested that the board of trustees was justified in dismissing an employee who complies with his legal obligations.  "With investigations and lawsuits swirling the governor, who is also a university trustee, has to be careful. He is also convinced he and his fellow trustees did the right thing firing Paterno, even as they still debate whether the coach did enough to stop Sandusky's alleged abuse. 'He fulfilled his legal obligation, but it continued after that. That's the unfortunate part," the governor said.'" (From Brian Taff,  For first time, Corbett talks Paterno firing, 6abc.com, March 8, 2012).  But the Governor was vague.  He could be suggesting that Coach Paterno failed to fulfill a legal obligation that continued after the first notification--that is that Coach Paterno had a duty to report and to ensure that the person to who he reported did something with the report.  Or, he could have been suggesting that Coach Paterno had an additional duty because of the danger of imminent harm.

That sort of legal obligation is not uncommon in other areas of law, for example with respect to the obligation under the federal securities laws to ensure that reporting up the chain of command was effective.  Indeed, for another example, the Occupational Safety and Health Act (OSHA) includes a fairly common form, requiring the agency to seek immediate correction of working conditions posing imminent danger, defined as ".....any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act." OSHA Section 13(a).  It also permits workers affected by the fairly to act directly to sue for damages (Ibid., Sec. 13(d). The same rule applies to reporting of cases of suspected child abuse under an actual or imminent danger of harm standard, for example in New York State.  See, e.g., Monroe County Department of Human Services, Reviewed and approved by New York State Office of Children and Family Services, Child Abuse Reporting,  Are There Shades of Gray? 2003 But even in those cases the state makes a distinction between mandated and un-mandated reporters.  However, unm-andated reporters are subject to the legal requirement for reporting though they are only encouraged to report. (Ibid., I'm Not a Mandated Reporter, What Should I Do?).

But the Governor might also be suggesting to even if Coach Paterno complied with his legal obligations, he had the further obligation to do more as an employee.  The Governor was more explicit about this in connection with the obligations of Mr. McCreary in November 2011.  John Taylor, Gov. Corbett: McQueary didn’t ‘meet a moral obligation’, NBC Sports, Nov. 13, 2011 ("Corbett also spoke on McQueary specifically, saying that while the then-graduate assistant met “the minimum obligation… [he] did not in my opinion meet a moral obligation that all of us would have.”").   It was the failure to do more, when read into the conditions of employment, and when used to assess employee performance (as opposed to legal obligation and civil liability to others), that the issue gets more murky and troublesome.  That effort might be troubling, especially where that "do more" involves either action that is unspecified or action that might cause the employee to be terminated precisely because compliance with a moral obligation would violate the legal obligation of employees under her employment contract or the law. In effect, were this the case, the Governor might be suggesting a strange conflation of legal standard, moral standard, liability standard to third parties and employment  assessment obligations in ways that might be both arbitrary and unfair.   

However, the Governor was also careful to suggest that the gulf between legal obligation and moral obligations "that all of us would have"  (John Taylor, Gov. Corbett: McQueary didn’t ‘meet a moral obligation’, supra.) should not be bridged by the imposition of unspecified moral obligations, but rather by changes in law to reflect and specify moral expectations. 

Speaking on NBC’s Meet the Press Sunday morning (see video below), Pennsylvania governor Tom Corbett, who was the attorney general when his office began the investigation into the Sandusky allegations in 2009, said that calls from both sides of the political aisle are surfacing to change the existing laws as it pertains to the reporting of abuse, sexual or otherwise, at public institutions such as Penn State. “We have to make sure the change in the law is one that is effective,” the governor said. (John Taylor, Gov. Corbett: McQueary didn’t ‘meet a moral obligation’, supra.)

Thus, the Governor suggests two approaches to the issue of moral obligation in the context of employee assessment.  In one, the employee is subject to legal requirements, along with those set out in her contract, plus the obligations of moral imperatives that are known to the employer but are otherwise unspecified except for their character as "moral.".  The employer controls both the content of this moral component and the interpretation of these moral obligations to particular circumstances.  Having both created and interpreted these moral obligations, the employer might then assess an employee's compliance and in some circumstances discipline or terminate the employee. But it is not clear whose morals the employer is imposing, nor its contents, nor is there any ability on the part of the employee to assess the fairness of either content or application of this moral component, something the employee could do with respect to legal and contract obligations. It is for these reasons that this approach appears to describe a situation characterized by arbitrariness and one, as well in which there is no transparency--the employee is apprised of her violation of moral norms  at the time she is disciplined.  It is in this form that moral obligation becomes problematic, and uncomfortably arbitrary in character.  Arbitrariness tends to be understood in the United States, as fundamentally unfair.  It might be for that reason that employment related discipline based on an assessment of performance not directly tied to legal or contract obligations, but after-the-fact characterizations of mortal obligations, might sound unfair and thus, wrong.  

In the other, moral obligation is understood as a source of potential legal or contractual requirements.  Moral obligations are meant to be identified and, to the extent thought necessary, whether imposed as a legal obligation through the normal process of law making.  Alternatively these obligations, identified and memorialized in appropriate contractual or policy instruments, become a part of the conditions of employment.   Moral obligation, in this sense, serves as a source of obligation, but assessment is grounded on its adoption as part of the working conditions and rules applicable to employees.  The process is open, and transparent, and the employer, like the employee, is bound by a set of requirements that are specified and available to both.  This is a harder and more challenging use of morals in conduct norms.  It requires transparent and fair processes for its creation, and is subject to review and challenge were its provisions to be used unfairly or wrongly.  Yet that is the essence, in the United States, of notions of law and rule of law, that is at the heart of our system of governance; an essence that is at the base of the legitimacy of our rules.

2.  The University Board of Trustees:

On March 12, 2012. the Penn State Board of Trustees, responding to months of criticism about its decision to remove Coach Paterno and former President Spanier, provided a set of written justifications for those November 2011 decisions.  See, Report of the Board of Trustees concerning Nov. 9 decisionsThe removal of Graham Spanier as Penn State president and Joe Paterno asfootball coach, Penn State Newswire, March 12, 2012.

 ("Penn State Board of Trustees member Kenneth Frazier addresses members of the media as Pennsylvania Gov. Tom Corbett looks on at right following the regularly scheduled Penn State Board of Trustees meeting in State College, Pa. , Friday, Jan. 20, 2012." From Roadrunner Photos)

The Board of Trustees sought to justify their determinations principally as an expression of their fiduciary duty to the university: "Our decisions were guided by our obligation as Trustees, always, to put the interests of the University first." (Ibid.).   That duty, in this case, was guided by a need "to remember the children who may have been victims of sexual abuse on or near the University Park campus over the last 10 or more years and to support their healing process as best we can." (Ibid.).

With respect to President Spanier, morals played a small role.  According to the Board of Trustees:

We determined on Nov. 9 that Dr. Spanier should be removed because he failed to meet his leadership responsibilities to the Board and took insufficient action after learning of a 2002 incident involving former assistant coach Jerry Sandusky and a young boy in a Penn State facility. This failure of leadership included insufficiently informing the Board about his knowledge of the 2002 incident. He also made or was involved in press announcements between Nov. 5-9 that were without authorization of the Board or contrary to its instructions. (Ibid.).

The only eyebrow raising set of justifications involved the failure to communicate with the Board of trustees.

Coach Paterno's termination brings the issue of morality, at least as a post hoc justification for employee discipline, up front.  Taking a similar position to that expressed earlier by the Governor, also a Board member, quoted above, the Board explained:

 

While Coach Paterno did his legal duty by reporting that information the next day, Sunday, March 3, to his immediate superior, the then Penn State Athletic Director Tim Curley, the Board reasonably inferred that he did not call police. We determined that his decision to do his minimum legal duty and not to do more to follow up constituted a failure of leadership by Coach Paterno. (Ibid.).

Yet, like the similar expression of Governor Cobett, the moral issue appeared in this case to be tied to notions of imminent harm.

As one member of the Board of Trustees, Ken Frazier, put it so well: ".... [E]very adult has a responsibility for every child in our community. And ...we have a responsibility not to do the minimum, the legal requirement. We have a responsibility for ensuring that we can make every effort that's within our power not only to prevent further harm to that one child, but to every child." That is our commitment to the children...and to the core values that have always made Penn State a great university. (Ibid.).

In this case, the imminent harm was inferred from the testimony of the specifics of the report to Coach Paterno, speaking to "fondling or doing something of a sexual nature to a young boy." (Ibid.). Read narrowly, the issue is not exactly one of the need to add moral obligation to the legal duties of employees, specified in contract an policy.  Instead it suggests nothing more than the articulation of the traditional and general idea that an employee, like others, must take reasonable steps to avoid imminent harm to others.

3.  The University President:
  

President Erickson’s Promise to the Penn State Community:
With the full support of the Board of Trustees, I have outlined five promises to the Penn State community that will guide my leadership of this great institution in the wake of this tragedy. I wish to share these promises with everyone who is a part of our community.
1. I will reinforce to the entire Penn State community the moral imperative of doing the right thing – the first time, every time.
We will revisit all standards, policies, and programs to ensure they meet not only the law, but Penn State’s standard. To oversee this effort, I will appoint an Ethics Officer who will report directly to me.
I ask for the support of the entire Penn State community to work together to reorient our culture. Never again should anyone at Penn State feel scared to do the right thing. My door will always be open. (From Pennsylvania State University, Office of the President, Goals and Initiatives, President's Erickson's Promise to the Penn State Community)

(From Bill Schackner, Penn State President Meets With Legislators, Pittsburgh Post Gazette, Dec. 14, 2011 "Penn State University's new president, Rodney Erickson, met with legislative leaders and the governor in Harrisburg Tuesday, pledging to develop a "culture of openness" on campus following a child sex abuse scandal that rocked the institution. Those legislators, in turn, briefed him on proposed reforms aimed at fostering such a climate, including three recently introduced House bills that would bring Penn State and three other state-related universities under Pennsylvania's Right-to-Know Law.")

It is this connection between moral obligation and the need to provide specific guidance in law or contract that was expanded by Pennsylvania State University President  Rod Erickson.Like Governor Corbett, President Erickson is committed to systems of rules that reflect the moral sense of the community to which they are responsible. President Erickson is committed to ensuring that rules and moral standards are harmonized.  That harmonization, however, is to be accomplished not through the imposition of moral order over or against legal and contractual obligation.  Instead it is to be undertaken, as the Governor himself suggested int he context of changes to the law, in the form of reform of the rules describing the rights and obligations of the community of employees at Penn State.  Moral obligation, then, is understood as the substantive basis on which possible modification of legal and contractual policies and obligations are framed.  And the process that is to be used to undertake such review is that which ensures a fidelity to the notions of shared governance at the heart of the operation of the university.

But moral obligation, that is moral obligation beyond the usual "imminent harm" exception poses problems, especially when they are incorporated into employee working conditions in the absence of vetting, at least within an institution that is grounded on principles of shared governance. The President was right to move from the Governor's suggestion of moral obligation as a source of rules to obligations based on ethics.  But the tension remains--the suggestion of moral imperatives tied to work of an Ethics Officer whose bailiwick would include the rewriting of disciplinary rules for university personnel moves us at once forward to a system where rules are the basis for assessment but also backwards to a system in which shared governance may be sacrificed on the alter of moral imperatives commanded through the official charged with the task of incarnating them into rules. But morals and ethics are not necessarily the same thing. Moral imperatives are not necessarily born of reason but may be guided by religious principles, Marxist principles, ethical principles or the like., nor are they anything like Immanuel Kant's famous categorical imperatives, the practical manifestation of the dictates of pure reason.  Shared values, of course, understood as ethical norms, are to be embraced within a governance community, and that is likely what might have been meant.  But moral imperative speak to matters of conscience that may be difficult to impose in a university committed to shared governance and one that is not bound by the moral strictures of any one faith.   

The promise to do the right thing itself has a procedural element that has been hinted at in the discussion of substance above.  It  involves the promise to do the right thing in the right way. Rules are developed and specified in conformity with traditional practices that permit a broad and inclusive participation and vetting.  It avoids arbitrariness and by avoiding unnecessary conflations of legal standards, moral standards, liability standards to third parties and employment  assessment standards.  It speaks neither to an arbitrary unilateralism at odds with the traditions of University rule making nor to the imposition of vague moral standards the context, origins and legitimacy of which might be shrouded in mystery.  It avoids the appearance of an abandonment of transparent operation through rules for a system in which the morals of a supervisor, or of any individual with supervisory power, might be used stealthily, to discipline employees.  Under such cover, governance regimes grounded in control through retaliation, personal vendetta and arbitrary rule would certainly be easier to advance.  

It would be reasonable, then, to read the President's promise, as an articulation of long held views within institutions with shared governance systems.  Worse, it creates a set of employment standards that an employee cannot either anticipate or conform behavior to until after the fact.  The possibilities for abuse become significant.  The University might always be careful to maintain a set of employment standards and behavior rules that reflect both social consensus and legal obligation.  Those rules are specified in a clear manner that gives notice to employees, including administrative employees with supervisory authority, a precise set of standards against which employees (including themselves) are assessed. Those standards, of course, can include ethical norms as well as the more routine rules setting out conditions and expectations of employment.  But they are meant to avoid situations where the employer, in the form of a supervisor, can discipline an employee on the basis of conduct that is not specified (by references to moral obligation) or obligations with respect to which the supervisor alone appears to have a power to construct, interpret and apply.  Such a construction would itself run counter to the President's promise of a more transparent university governance culture.  Worse, it creates a set of employment standards that an employee cannot either anticipate or conform behavior to until after the fact.  The possibilities for abuse become significant.

4.  The University Faculty Senate:

“I rise to make the following motion:  That no employee, faculty member or other agent of the University be required, as a condition of employment, to adhere to standards of conduct that are not specified by rules, regulation, or legal requirement.  Failures of moral obligations alone should not be made a basis of evaluation or job performance.  The HRs and other appropriate University regulations should be amended to reflect this requirement.” (A.E. Luloff-Agricultural Sciences) (Pennsylvania State University Faculty Senate, Agenda Tuesday, March 13, 2012 – 1:30 p.m.; 112 Kern Graduate Building; G Unfinished Business)

(From Faculty Senate Reproves “No Confidence” Motion,image Ryan Beckler)

It is in the context of the Governor's statements and the President's promise to the University community that the purpose and value of the motion before the Penn State University Faculty Senate can be appreciated.  It simultaneously lends support to a reasonable reading of the President's commitment to employ the usual processes of rule making to change the scope of employee obligations, and is also an expression of commitment to the methods by which those obligations are understood and assessed in the ordinary course.   It furthers the President's promise of rule systems that accord with the moral standards of the community, as these standards are developed in accordance with the usual processes of rule making at the University.  Openness, transparency, due regard for the protections of established procedures, accountability, and inclusion, are all emphasized. At the same time, Senator Luloff's motion serves as a reminder that crises and scandal ought not to be used as an excuse to shortcut the processes that underlie shared governance.  It serves as the expression, implicit in the President's promise of a more ethical basis for employee conduct expectations, that arbitrariness is rejected as a core value of Penn State culture.

If that was all there was, then perhaps the effort to move such an expression of the will of the University Faculty Senate in its representative capacity would seem unnecessary.  Indeed, as mere duplication it can serve as no more than an assent to an already undertaken policy approach . However, in the context in which it is made, the motion acquires a greater significance.  Firstly, it makes explicit what has been surmised about both the good intentions of the Governor and  University President Erickson.  It also makes direct what others in authority have intimated:  that governance at an institution, including universities, is expressed in the aggregate of its own rules, that those rules must express the shared values of the governance community and reflect the shared views of important governance stakeholders, and that the product of a deliberative process that is transparent and conforms to the process expectations of the community.  Just as importantly, the motion serves as a reminder to avoid the temptation to reach into unspecified morals for assessment, and explicitly avoids any inference that rules may exist in the ether--to be identified and invoked after the fact.  It cannot be forgotten that morals may touch on issues of conscience--long protected in the United States against interference.  By contrast, ethical rules touch on good behavior within the community that is regarded as the essence of good governance.  When created in an open and transparent way in accordance with accepted procedures, ethical norms and rules can serve a useful purpose.  However, when they are constructed after the fact or hidden or reconstructed as a tool of "off the books" regulation, then they serve only as a perversion of its own ethics based nature.  It is in this sense that the Senate motion serves an important purpose.  Thus President Erickson's call to  "the moral imperative of doing the right thing – the first time, every time"may well require adoption of a motion that cautions against the use of morals as an instrument of governance and relies instead on ethics and shared values.

It will be interesting to see the result of the University Faculty Senate's consideration and vote on the motion.  Using notions of the morality of imposing a "prevent imminent harm" standard as a doorway to importing other and unspecified moral imperatives into the relationship between the university, its administrators, faculty, and staff appears both unwarranted and not supported by the expressed intent of the people who have weighed in on the issue.  But the danger of loose talk is always that someone might seek to read florid, if heartfelt expressions of an invitation to regulate outside of the traditional methods through which the university manages and disciplines the behavior of its employees.  That would be regrettable.   More interesting still might be the effect if, on defeat, the university becomes a more moral but perhaps less ethical, governance space. The lessons learned will be as applicable to the modern university, as it will be to state and non-state governance institutions now working their way through new models of exercising authority legitimately and fairly.