One of my philosophies, working as a senior level public official in a local or state government, is that the boss – the elected official – is always right.
Most State, City, County and other non-federal CIOs either work for a city/county manager or for a Governor or Mayor. That official is the “boss”. We give the boss our best advice, but if they decide to do something different, then I invoke “nobody elected me”. In other words the elected official is responsible to the citizens and constituents of the city, county or state. And that elected official will receive a report card every two or four years in the form of an election. If the electorate doesn’t like the way the government is running, they’ll make their wishes known at the ballot box The Mayor or Governor was elected to make the decisions, not me.
I’ve got two reasons for writing this blog post. The first one is to try and reflect upon the stupidity of what happened in New Jersey in September. The second reason is to demonstrate how “nobody elected me” plays out in information technology.
Nobody Elected Me and New Jersey
One potential issue with the “nobody elected me” philosophy is ethics. If I recommended a course of action, and my boss decided to do something different – and his decision was – in my opinion – either unethical or illegal, what would I do? There is really only one answer to this quandary: it is my duty to resign. (I won’t address the issue of “going public”, e.g. Edward Snowden, as that is a difficult and thorny subject.)
Such instances are, thankfully, far and few between. One of my heroes is Bill Ruckelshaus, who resigned as deputy United States Attorney General. He resigned rather than carry out an order from then-President Richard Nixon to fire the special prosecutor in the Watergate affair.
As any reader probably knows, staff members of New Jersey Governor Chris Christie ordered the closure of all-but-one traffic lane on an approach to the George Washington Bridge in early September, 2013. Governor Christie was conducting a campaign for re-election, and the closure was apparently ordered to “punish” the Mayor of Fort Lee, New Jersey.
If you were an employee of the Port Authority of New York and New Jersey, and you were actually ordered to set up the traffic cones and shut down traffic for no apparent reason, what should you do? Refuse to obey the order? On what grounds?
I can’t judge the employees of the Port Authority because I don’t know what they (or their supervisors or their managers or their directors) were thinking as the traffic cones went into place and all hell broke loose for three days of traffic on that bridge. Perhaps they invoked “Nobody Elected Me” or “the boss is always right”. Perhaps they feared to question the order in order to preserve their jobs. Somebody in New Jersey government, however, should have been asking questions in September, not now in January, 2014.
Nobody Elected Me and Information Technology
“Nobody elected me” is useful when explaining otherwise inexplicable decisions to technology department employees.
For many IT employees, the “right” decision often appears to be obvious. Many such employees don’t see the nuances of political reality (especially when it comes to funding).
A few years ago, when I was CTO of the City of Seattle, I reported to Mayor Greg Nickels. Mayor Nickels and I and a third department head – responsible for the central customer service at the City – jointly decided a 311 system was needed in Seattle.
311 seems enormously logical to me. What phone number do you call if you see a fire or are having a bicycle accident (like I did) – 911, of course. But what number do you call if you want to report a backed-up sewer or you want to complain about taxi service or your cable bill? In some forward-thinking cities like Chicago and New York and Louisville that number is 311. But in Seattle you search through six pages of 8 point font in the phone book (if you even have a phone book) or search a website (if you have Internet access) to find some incomprehensible number. That sort of stupidity made no sense to me as CTO and it made no sense to Mayor Nickels.
Alas, the Seattle City Council didn’t see it quite that way, and rejected Mayor Nickels’ proposal because they didn’t see a need equal to the $9 million cost to implement.
I’m convinced the problem in Seattle was lack of Council member districts. All nine Seattle City council members are full-time members and all are elected at large. In that situation citizens don’t know which council member to call to complain about something, so they end up calling the Mayor. The Mayor and his staff “feel the pain” of citizen complaints and see the need for a 311 number and system. City council members don’t
But the electorate has spoken. Two months ago, in November, 2013, they voted to start electing council members by district. When that law takes effect in two years, council members will start feeling the pain of citizens in their district complaining and will, I think, be much more supportive of 311.
Yup, nobody elected me, but there’s always an alternative path to the goal.
the Chief Seattle Geek blog 
I was cheering for you until the end of paragraph four. There, you stated that your duty as a public employee, if confronted with a superior who was elected by the public and whom you know to have made an unethical or unlawful decision, is to resign. In the face of such malfeasance, your duty is to inform the public, not to simply walk away.
Well, Phil, I didn’t say anything about informing or not informing the public in the blog, although I’ve given that some consideration as I wrote it. I guess it depends on the circumstances. These are hard decisions to make in the abstract. Let’s suppose a Mayor’s staff member told me to hire a campaign contributor into a specific position. If that position was “at will” (that is, a political appointee) and the person had some skills to do it, is that unethical? Certainly not unlawful. Geez, you raise a good point. Grist for another blog posting at some point!
Your revision improves the message a bit.
Moving on to paragraph #7: “If you were an employee of the Port Authority of New York and New Jersey, and you were actually ordered to set up the traffic cones and shut down traffic for no apparent reason, what should you do?” That is a difficult question to answer without additional detail. There may be a good reason for the task that is simply unapparent to those who are directed to perform it. I still think that whether one does it or refuses, it’s good to get that information to someone with the ability to investigate and to inform the public.
We need to maintain a secure path from whistle-blowers to investigative journalists.
Phil:
Here’s the reason I hesitate to get into the whistleblower discussion: while some issues are black and white, there are many shades of gray. What I think is unethical might actually be legal and others might consider it ethical as well. Take the New Jersey example. Clearly if the lanes were shut down in order to “punish” the Mayor of Fort Lee and get Christie re-elected, that’s both unethical and illegal. But take the Snowden case. What he did was clearly illegal under Federal law. Was it unethical? Was it ethical? Is it right or wrong? I’m not even sure what the answer is to those questions.
Whether or not the NJ actions were ethical and/or lawful, the public should be allowed to know about them. In that case, going to the press seems rather low-risk, since the information wasn’t likely much of a secret in the first place.
The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.
Regarding Edward Snowden: You wrote that what he did “was clearly illegal under Federal law.” I don’t believe that is clear. What law do you suppose he violated? Remember, he was not a public employee with duty to refrain from publication of classified information, but an employee of a private business that happened to contract with the U.S. government.
Phil:
Re: Snowden. His personal contract and the contract of his company required him to respect the confidentiality of the documents he leaked. The guy’s a criminal. However he might also be a hero.
Re: Whistleblowing. There is a lot of gray area here, and, in my book, loyalty is also important. Loyalty to the officials elected to run a government and loyalty to the government itself. A violation of public trust by an elected official or a government needs to be pretty egregious before I’d blow the whistle. Whistleblowers will never find themselves in a position of public trust ever again, no matter how right they are.
So, Bill, you’re saying that Snowden’s violation was breach of contract, and that you consider such violation to be a criminal matter?
Again: you wrote that what Snowden did “was clearly illegal under Federal law.” To which law did you mean to refer?
Phil:
Federal law is clear that once documents and other material is classified, e.g. confidential, secret, top secret etc., it is illegal and criminal to disclose it. Snowden took and disclosed such material. He’s a criminal under Federal law. You can argue that he is “obeying a higher law” or is a “whistleblower” or something, and you can argue that he did a great service to the nation and the world by disclosing that material (and I actually might buy parts of that argument) but he’s also a fugitive from federal law on the run. Ok, technically he’s innocent until proven guilty, but that’s not exactly relevant until he returns.
too bad the stasi didn’t have a few dis-loyalists …
Point taken, Gregory, but I don’t think the United States NSA and the STASI are playing in the same league at all.
Bill wrote: “Federal law is clear that once documents and other material is classified, e.g. confidential, secret, top secret etc., it is illegal and criminal to disclose it.”
I’m almost positive that is incorrect. Bill, can you cite a reference? Counter-examples: newspapers publishing documents stolen from a government office, copied from government computers without permission, or copied with permission but shared without it. That has happened numerous times, yet the publishers are not prosecuted. That doesn’t mean that their communication of that information to additional parties was lawful, but it is a very strong indication of such.
For some thoughtful, well-written, and well-cited, analysis of this issue, please see “Where is the Citizens’ Commission to Investigate the DHS?” from the Identity Project. In it, Edward Hasbrouck writes, “Tony Russo and Dan Ellsberg were prosecuted (although the charges were dismissed by the trial judge due to misconduct by the government) for theft of government property and for violating their secrecy oaths as employees of a military contractor and holders of security clearances. But none of the newspapers, reporters, editors, or publishers who received and reprinted copies of the Pentagon Papers were prosecuted, even though they knew that the documents were classified and had been `leaked’ illegally. Regardless of how their sources had obtained the Pentagon Papers, the newspapers and journalists who published the documents hadn’t agreed to security clearances, and hadn’t engaged in theft or violated secrecy oaths or employment agreements.”
Bill continued: “[Snowden is] a criminal under Federal law.” So said Barack Obama, nearly guaranteeing that there would be no fair trial for anything of which he’s accused (not that it’s a possibility, anyway, since courts believe intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant, and therefore inadmissible, in an Espionage Act case).
“You can argue that he is “obeying a higher law” or is a “whistleblower” or something”
I didn’t.
“and you can argue that he did a great service to the nation and the world by disclosing that material (and I actually might buy parts of that argument)”
I didn’t argue that either, though I agree.
“he’s also a fugitive from federal law on the run.”
Edward Snowden is an asylee.
Ok ok, ok. So there is a distinction between the law, breaking the law, whether someone is actually caught and charged with a violation (I break the law every day speeding on the freeway), if the authority decides to prosecute and what a judge/jury decide. Legalize, Phil.
Here’s the criminal complaint with citations for Federal laws which Snowden violated:
http://apps.washingtonpost.com/g/documents/world/us-vs-edward-j-snowden-criminal-complaint/496/
I’m not going to split hairs with you. The guy clearly broke federal law, in my opinion and in the opinion of the federal government. Whether he actually is caught and convicted or not, well, we’ll see.
-bill
Bill, you keep making bold claims, then dodging requests for specifics.
I assert that communicating information classified by the U.S. government is not, per se, illegal. It’s my understanding that some, but not all, people have a legal responsibility to refrain from doing so. I believe that U.S. government staff may have such an obligation. It is not at all clear that Edward Snowden, as an employee of Booz Allen Hamilton, had such an obligation at the time that information was shared with him. Nor, I should say, is it clear that employees of the Washington Post, those of my employer, or those of the City of Seattle, have such an obligation. I am fully aware of the fact that the U.S. government will attack nearly anyone who does so, unless it is politically unfeasible to engage in such an attack, regardless of the law.
Phil:
Did you even follow the link I sent in my previous reply? It is the criminal complaint against Snowden filed by the Federal government citing the specific titles of the United States Code which he allegedly violated? What more specifics do you want? Here’s the link again. Please read it this time:
http://apps.washingtonpost.com/g/documents/world/us-vs-edward-j-snowden-criminal-complaint/496/
In terms of newspaper reporters and others who received and published documents from him, I never asserted they did anything wrong, so I don’t know why you are even raising that.
-bill
Bill:
I asked, “What law do you suppose he violated?” You didn’t answer, but responded, “His personal contract and the contract of his company required him to respect the confidentiality of the documents he leaked. The guy’s a criminal.”
I asked, “So, Bill, you’re saying that Snowden’s violation was breach of contract, and that you consider such violation to be a criminal matter?” You never responded to that.
I asked, “Again: you wrote that what Snowden did `was clearly illegal under Federal law.’ To which law did you mean to refer?” You didn’t answer, instead responding, “Federal law is clear that once documents and other material is classified, e.g. confidential, secret, top secret etc., it is illegal and criminal to disclose it. Snowden took and disclosed such material. He’s a criminal under Federal law.” I provided an example that contradicts your claim: newspapers regularly do just what you described as being a clear violation of federal law.
You referenced a criminal complaint.
You have yet to state just what criminal law you think Snowden so very clearly violated. You’ve suggested, but not confirmed, that you believe he violated contract law.
In the complaint you referenced, Snowden is accused of violating the following:
18 U.S.C 641 – Theft of Government Property
18 U.S.C 793(d) – Unauthorized Communication of National Defense Information
18 U.S.C 798(a)(3) – Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person
Based on what has been reported, it does not seem that he stole anything, as the U.S. government still has that which he copied. Furthermore, it is highly likely that as a requirement of performing his job as an administrator of the systems on which the information he copied was stored, he was authorized to view, and thus to copy, any of that information.
I don’t know what “National Defense Information” is, but it does seem likely that Snowden communicated various information, and that he willfully communicated various information to one or more people unauthorized to receive it. However, staff at New York Times, Washington Post, and DER SPIEGEL each did precisely the same thing.
Very thought provoking. It seems to me that there should be an alternative to resignation that both properly addresses the issue of an unethical act or omission and still protects the integrity of the staffer that brings it forward. It is a shame to deny the public that is served a talented individual and potential leader when they are forced to resign to keep their moral center balanced. It is also a very tough job market to try to replace a good one in.
You are spot on Scott, which is why you see very few resignations on moral or ethical grounds. On the other hand, there are a lot of resignations because of awful bosses and very difficult working situations. There have been a number of news reports in the past week about “toxic leadership” in the military. http://knau.org/post/army-takes-its-own-toxic-leaders Those folks exist in local and state government too.
Again, good comment, Scott. I wish I had an answer to this dilemna!