Abstract
This qualitative analysis examines state legislation that discloses public employee salary information. It asks, “Is such legislation ethical?” To address this question, an approach—the “ethics triangle”—is used that encompasses results-based utilitarian ethics, rule-based duty ethics, and virtue-based character ethics. The study begins with the importance of the problem, followed by its evolution and current status. After describing the method of study, the article analyzes arguments for and against the ethics of salary disclosure using the ethics triangle. Although there are no easy answers, the Discussion section provides a synthesis of the findings. The concluding section suggests that open compensation systems encourage justifiable salary decisions and help personnel to better understand agency missions and why they earn what they do whereas a closed pay system can compromise the greatest good, duty, and integrity. Yet disclosure requirements applied across the board to all employees, with no distinction regarding the nature of the work or position involved, disregards important factors that deserve consideration. Alternative ways to disclose salary data without revealing individual identities and directions for future research are offered.
Since the founding of the country, the right to know information about government has been fundamental to First Amendment freedoms and American governance. “A popular government without popular information or the means of acquiring it,” James Madison wrote, “is but a Prologue to a Farce or a Tragedy, or perhaps both” (1865, p. 276). Open government laws shed light on decision making by mandating that meetings and governmental documents be readily accessible. The state of California legislation perhaps says it best:
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 retain control over the instruments they have created (Emerson, Menkus, & Van Ness, 2011, p. 70).
The result can ensure transparency, encourage citizens to be well informed, hold public officials accountable, foster trust in government, and safeguard against corruption. Information is, as Thomas Jefferson observed, “the currency of democracy, the premise of self-government” (Ford, 1904).
Today all states have legal measures specifying varying degrees of transparency in government meetings and records. One component of this legislation is disclosure of civil servant compensation. Although a traditional, if mercurial, source of news stories (most notably during gubernatorial transitions), public records and salary information issues have received renewed attention in recent years for a variety of reasons.
First, technological advances include internet access to nearly all government employee compensation records in many states; among the numerous implications of this development are forms of criminal behavior like identity theft and abusive uses such as “fishing expeditions,” intimidation of political adversaries, and the chilling of free speech (“Using Open Records Laws to Harass Scholars,” 2011). Second, the dramatic expansion of outsourcing over the past decade raises questions about contractor remuneration (a government function may suddenly go “dark” on an agency website; although contractual requirements may include inspections for legal compliance, inspections are often rare, preannounced, and/or perfunctory). Third, revelations of outsized employee salaries in the small city of Bell, California (Vives & Gottlieb, 2010), have been a catalyst in the larger, ongoing argument over public sector pay and benefits.
Fourth, and more broadly, national security threats, such as terrorist attacks and arguably WikiLeaks, have sparked discussion over availability of records (e.g., building plans and airport documents). Fifth, lavish executive salaries and bonuses in the private sector (along with Security and Exchange Commission recent pay disclosure guidelines for publicly traded companies) have contributed to compensation as prominent societal issue. Finally, citizens are raising increasing concern over their right to privacy and the involuntary sharing of personal data in today’s “information age.”
Indeed, a long-standing social norm is to keep pay information private (Bierman & Gely, 2004). This “code of silence” derives from American individualism and privacy rights, making discussion of wages a sensitive topic. It may be, in fact, the “last taboo,” in an otherwise “tell-all” culture, as earnings can represent a person’s value to an organization, societal prestige, and, sadly, perhaps even self-worth. One indication of the problem appeared in a Business Week story in which “almost no one agreed to be named [in its article on salaries], citing company policy, legal concerns, or simple propriety” (“Mind If I Peek at Your Paycheck?,” 2007, p. 3).
The extent to which pecuniary information is confidential, it is a foundational issue because citizens have ultimate control over the provision of public services in a democracy. Nonetheless, there may be no simple answers to whether salary disclosure is beneficial to employees, organizations, and the populace. Employee morale, pay satisfaction, privacy rights, workforce stability, workplace harmony, compensation management, and citizen trust are among the concerns (the relevance of such concerns is illustrated in the case study by Case, 2001; also see Colella, Paetzold, Zardkoohi, & Wesson, 2007) that suggest there may be no single right or wrong approach. In fact, some of the same evidence can be used by both advocates and opponents of government in the sunshine.
As a result, the issue is subject to debate and revision to the point that advocates claim that the effectiveness of open government legislation has been eroded in some jurisdictions (McLendon & Hearn, 2006, p. 48). Indeed, a major state newspaper recently referred to Florida governor Rick Scott as the “prince of darkness” for his alleged lack of respect for the constitutional rights of state citizens and his attempts to avoid public scrutiny (Nickens, 2011). 1 The issue is also controversial at the national level, not withstanding President Barack Obama’s instructions to federal departments on his first day in office to “adopt a presumption in favor of disclosure.” Transparency advocates believe that “the administration’s performance has yet to match its rhetoric” (Reilly, 2011, p. 11). Not only is it releasing fewer records under the Freedom of Information Act than during the G. W. Bush Administration, vigorously prosecuting whistleblowers, and asserting state secret privileges, but it also censored 192 pages of email messages involving its Open Government Directive (Ellington, 2013; Ornstein & Limor, 2011). And recent budget cuts may make it very difficult to implement the president’s commitment to opening a window on government activities. (O’Keefe, 2011).
Disclosure, then, reflects an inherent tension between desirable but competing goals: governmental accountability, individual rights, and an agency’s mandate to fulfill its public function (Cleveland, 1985). Thus, at any one time or place, transparency laws represent the state of concern about public access, pay disclosure, data security, and privacy rights in government.
This study focuses on the ethics of public employee salary disclosure by asking, “Is such legislation ethical?” It is often too easy to judge legislation or policy ad hoc, without utilizing an analytical framework by which to examine it. Thus, a methodological tool is used here that encompasses the complementarity of results-based utilitarian ethics, rule-based duty ethics, and virtue-based character ethics. Transparency legislation has not been explored in this way before; indeed, this approach can be used to evaluate other policies. 2 The discussion continues below with the background to the problem, including its evolution and present status. Then, after describing the method of analysis, the central part of the text evaluates the ethics disclosing employee pay. The Conclusion explores the implications of the findings.
Background
Although the nation’s founders emphasized the need for open government, more than a century would pass before it became the subject of legislation. This section briefly traces the development of open pay systems, contrasts them with closed systems, and places these differing approaches in the context of contemporary civil service reform.
As part of the Progressive Era, Florida was one of the first states to enact sunshine legislation, which remains the “gold standard” in this policy arena. In 1909, the state passed a law that became a model in a national campaign for open records. It determined that government department records created in the course of business would be available for inspection; it did not define public record or specify what agencies were subject to the law. By the 1960s, and in the wake of historic legislative reapportionment, the state legislature approved landmark open government laws, one that expanded the provisions of open records statutes and another for open meetings. Half of the states followed suit requiring government documents be available, and meetings be open, to the people (McLendon & Hearn, 2006, p. 646).
Scandals and corruption during the 1970s Watergate era resulted in reforms focusing on accountability through transparency. All remaining states adopted sunshine measures and many others strengthened their existing legislation. Each open government law contains provisions on purpose, coverage, definitions, exemptions, executive sessions, and sanctions (Cleveland, 1985). These measures remain in every state’s constitution, laws, or both, to help ensure that public good rather than private gain is a factor in decision making (McLendon & Hearn, 2006, p. 647).
It should be recognized that there is, of course, differentiation among the states. These differences include such matters as exemptions to the law (there are more than 1,100 in Florida), remedies for violations, variations in implementation, the extent of privatization of public functions, as well as the sometimes burdensome problems associated with formal freedom-of-information applications. The net result, according to McLendon and Hearn, is that audits of this legislation in the past decade have found “widespread ignorance” of the law and “widespread non-compliance” with information requests (2006, pp. 49-50).
Florida’s attorneys general and state courts have broadly construed open meeting and public document laws, and Florida citizens have twice amended the state constitution to reinforce their support for open government. Yet Weitzel pointedly acknowledges that the state has experienced “frequent and often quite innovative efforts to skirt the law” (2006, pp. 138).
Overall, and despite diversity among states, there appears to be a general consensus that citizens should have access to information on how government spends its money; civil servants work for the public, and therefore, the people have a right to know how their taxes are spent (see Colella et al., 2007, for survey data). This idea is echoed in a new website (www.floridahasarighttoknow.com) approved by Florida’s Governor Rick Scott that provides links to searchable databases with information about contracts and state spending, payroll, and pensions (for a critique, see De La Cruz, 2011).
If the public service represents the one end of a pay disclosure–secrecy continuum, then the private sphere anchors the other end. With the exception of executive compensation for stock exchange–listed companies (and similar requirements by the Internal Review Service for nonprofit organizations), pay secrecy is the long-standing practice in business. This is despite the fact that National Labor Relations Board and federal court decisions have consistently ruled that such confidentiality rules and norms are an unfair—and illegal—labor practice (Colella et al., 2007; Gely & Bierman, 2003-2004). There might be a gradual movement toward disclosure (DeNisi & Griffin, 2008), as online salary surveys make strict confidentiality difficult, but secrecy is a “fact of life” in the corporate world (Bohlander & Snell, 2010, p. 417).
Many companies practice confidentiality, sometimes even to the point of forbidding managers from discussing their pay with other people. Compensation is treated as proprietary information and a source of competitive advantage. Secrecy arguably contributes to the manageability of the compensation function and recognizes the inevitable subjectivity of salary decisions. Less-than-perfect performance and pay systems mean that, although transparency may be a laudable goal, confidentiality can be socially beneficial for an organization and its employees (Bierman & Gely, 2004; Edwards, 2005).
Against this background of private and public sector pay practices, the role of government and the character of public service have been the subject of controversy in recent civil service reforms (Nigro & Kellough, 2006). Protagonists hold competing views on the appropriate administrative doctrine: the guardian model (a politically neutral, merit-based, impartial career bureaucracy) versus the politico model (a politically sensitive, patronage-based, partisan noncareer bureaucracy). The guardian approach reflects the Wilsonian dichotomy separating politics from administration, the hallmark of orthodox public administration. Part of this philosophy is open government laws, a method to safeguard the merit principles by insulating civil servants from manipulation and protecting the public from corruption.
The politico strategy, based on business practices, emphasizes managerial discretion and flexibility on one hand and employee performance and responsiveness on the other. Arguing that there is no merit in the merit system (Condrey & Maranto, 2001; Ingraham, 2006), the New Public Management and governmental reform movements have introduced commercial values into public service, increased the number of political appointees, eroded civil service protections, and hollowed out agencies by privatizing their management functions (Bowman & West, 2007). This philosophy, though not publicly rejecting transparency, regards open government laws as constraints on organizational efficiency and management control that tend to thwart effective decision making.
To summarize, the compensation function can be viewed along a pay disclosure–secrecy continuum. With Florida leading the way, all states have open government laws and some level of pay disclosure to foster an accountable government. In contrast, secrecy is common in business where it is regarded as generally desirable and often supported by employers as well as employees (Bohlander & Snell, 2010, p. 417). Contemporary civil service reform debates over the guardian and politico administrative doctrines inform these two approaches to transparency legislation. As indicated at the outset, such legislation not only embodies abstract rights in conflict but also increasingly sparks debate in practice.
Method
Substantial impediments to analyzing open government laws in all 50 states exist—the obstacles are as “daunting as they are logistically complex, financially burdensome, and labor intensive” (McLendon & Hearn, 2006, p. 679). In the absence of a centralized data clearinghouse, a baseline analysis of these laws in the aggregate is provided here. Because ethics is often overlooked or submerged into other decision-making criteria, an exploration of the ethical ramifications of these statutes is useful. Employing the analytical technique discussed in the following paragraphs, the evaluation draws upon existing, widely scattered research (cited herein, and found in philosophy, law, education, economics, business, public administration, and ethics literatures) as well as government and nonprofit documents and reports.
This material, as well as the Florida experience, was discussed with five Florida subject-matter experts who were selected using the reputational method. The stakeholders represent the state executive branch, the legislature, employee unions, public interest groups, and the press in semistructured, 45- to 60-min interviews. 3
Although various frameworks may be adapted to clarify ethical issues, responsibilities, and policies (e.g., Cooper, 2006—five steps; Nash, 2010—12 steps; Kidder, 1995—nine “checkpoints”), one is particularly helpful because its concise, yet comprehensive, scope that reduces the chances of an incomplete assessment. This tool, the “ethics triangle” (Svara, 1997, 2007), recognizes the complementarity and interdependence of the imperatives in three schools of thought based on
expected results of an action (consequentialism or teleology),
application of pertinent rules (duty ethics or deontology), and
integrity or character (virtue ethics).
Accordingly, the triangle (Figure 1) can be used by decision makers to develop a balanced, defensible evaluation courses of action derived from consideration of results, rules, and virtues. Variations and further claims of the three approaches are knowingly subordinated, as noted in the following, in the interests of parsimony and clarity.
Ethics triangle.
Each point of the triangle provides a lens to clarify and reframe different aspects of a conundrum. Employing “Ockham’s Razor” 4 to cut to the essence of an argument, three queries can be posed. Considering the results part of the triangle, the question is, “Which policy produces the greatest good for the greatest number?” Contemplating the rules angle, the issue is, “Would I want everyone else to make the same policy decision that I did?” Pondering the virtue ethics vantage point, one might ask, “What would be expected from a virtuous polity?”
An overemphasis on one point of the triangle, at the expense of the other approaches, holds considerable dangers: expediency (results-based ethics), rigid rule application (rule-based ethics), and self-justification (virtue-based ethics). In light of the shortcomings of the individual angles of the triangle, it is evident that this eclectic technique can be worthwhile.
Although triangulation analysis may not provide definitive solutions, it offers guidance by teasing out the underlying logic by which decisions are justified (for further discussion, see Bowman, West, & Beck, 2010). Individual ethical theories may lead to different evaluations of pay disclosure legislation, but these differences must be assessed, not passed over. Neither pay openness nor secrecy is obviously good or bad, as both strategies can be, and are, problematic. The three perspectives represented in the ethics triangle are used in the following as an organizing device to analyze disclosure of employee salaries.
Findings
Results-Based Analysis
In consequentialism, the best policy results in “the greatest good for the greatest number.” What is right is that which creates the largest amount of human happiness with the least harm. 5 This approach is helpful for public administrators seeking the common good for the majority of citizens; government by, for, and of the people is used against this benchmark. Accordingly, consideration of salary disclosure examines affirmative and negative arguments on the grounds of (a) efficiency, (b) responsibility, (c) merit, and (d) public trust.
In support of disclosure
Advocates believe that these statutes increase efficiency by promoting civil service professionalism as well as by reducing employee manipulation, employer favoritism, and organizational corruption. They also believe that transparency laws support pay equity, motivation, and productivity (e.g., Futrell & Jenkins, 1978; Longnecker & Krueger, 2007). Consistent with equity theory and performance pay (Bohlander & Snell, 2010), when pay is seen as a proxy for ability, then productive individuals will earn superior compensation and thereby encourage others to strive for reward.
Openness reminds officials that they work for the people and effectiveness of government is therefore improved by increasing responsibility and accountability to the citizenry (Johnson & Libecap, 1995). Former long-term Florida legislative staffer, Ray Wilson emphasized that the public sector transactions are involuntary (whereas in business, they are usually voluntary) and, it follows, “are the people’s business” (personal communication, November 17, 2010). Modern merit principles shield employees from abuse, and transparency laws serve a vital public interest by enhancing trust in government. For all these reasons disclosure laws help maintain citizen faith in democracy.
In the absence of these statutes, secrecy provides a basis for suspicion that the organization has something to conceal. As Florida Department of Children and Families Secretary, Bob Butterworth, stated, “We have nothing to hide, but more importantly we should have nothing to hide” (Gleason, 2007, p. 46). Openness can create confidence in and acceptance of the governing process. Without it, citizen participation in governance would be compromised and self-government jeopardized.
A significant public need, then, is seen for a transparent civil service as a key element of popular government. The lesson is clear: “When a person agrees to be a public servant . . . the public gains access to information related to that person’s salary” (Swanson, 2006, p. 1595). As Pat Gleason, special counsel to the Governor of Florida put it, “the people hire you to work for the public; if you think the money belongs to you, then work in business” (personal communication, November 23, 2010). The general counsel for the First Amendment Foundation, echoed this view saying, “If you work for government, you may have a state constitutional right to privacy, but not for information in public records” (James Parker Rhea, personal communication, November 23, 2010).
In opposition to disclosure
The assumption that open systems foster good government is that there are few, if any, benefits to confidentiality. A different approach is to weigh open systems against the advantages of closed systems using the efficiency, responsibility, merit, and trust criteria.
First, closed systems facilitate control requirements for orderly personnel management. Although there currently may be little or no legal or policy debate about salary disclosure, Pat Gleason believes that it is a difficult management challenge (personal communication, November 23, 2010). Disclosure leads to morale problems, job dissatisfaction, and staff turnover thereby affecting efficiency (Colella et al., 2007). Stressing access to information at the expense of other important values can erode the purpose of sunshine laws: good government and good decision making. Second, for leaders to be responsible, they need the freedom to act, unfettered by the negative results of disclosure. Arguments over salary generate conflict, making it difficult to reward performance in the public interest. As Case observes, “The problem isn’t that the (salary) disparities aren’t justified; it’s is the ones that are” (2001, p. 43; original emphasis).
There are ample merit system protections and legal requirements in place (e.g., financial disclosure statutes, “just cause” dismissal procedures, grievance arbitration, union protection, and federal legislation) to avoid abuses that might come from closed pay systems. It is unnecessary and arguably unfair to infringe on privacy rights of civil servants, making them second-class citizens. Not only does government lose people who wish not to have their rights negated but also society is denied the contributions that they could make. Indeed, in their pursuit of good government, sunshine advocates play to hostile public stereotypes of bureaucrats and politicians.
The public’s attitude toward information disclosure may be explained by the belief that government is their agent and they have a right to know. Yet in a democratic republic, if legislators can act as trustees, then the need for unconstrained access to information may be limited. Likewise, government auditors, charged with safeguarding the common interest, diminish the need for access to all information. Thus, public trust is increased when corporate-style, bottom-line standards are met.
Conversely, trust may well be diminished when citizens have access to the sometimes execrable nature of policy making. Cynicism can easily be the result. Accomplishing policy goals is also problematic if leaders are hampered by laws that limit leverage over subordinates. Absent such leverage, it is more difficult to serve the citizenry and earn their confidence. If abuse is the danger, then appropriate penalties should be established rather than depriving citizen-employees their rights. In brief, secrecy norms “make both practical and economic sense” (Bierman & Gely, 2004, p. 191) in serving the greatest good.
Yet an overemphasis on any single point on the ethics triangle may put a policy at risk. Open government advocates may assume that they have found the common good for the majority of citizens—at the expense of a minority. And closed government supporters may think that the greatest good is found in secrecy, but perhaps because it is merely expedient. Accordingly, attention now shifts to another school of thought represented in Figure 1.
Rule-Based Analysis
Rule-based decision making provides a different lens for evaluating public employee salary disclosure. Certain actions are inherently right (e.g., promise keeping) or wrong (e.g., inflicting harm), irrespective of predicted consequences; the end does not justify the means. This approach is useful for administrators who are obligated to follow the principles found in the Constitution, court cases, and laws and regulations (Rohr, 1988). 6
What is right is what conforms to moral rules; one must see one’s duty to truth and country and do it. In deciding what rule to apply, the person asks, “Would I want everyone else to do what I did?” (stated differently, “what is good for one is good for all.”). Here the emphasis is on principles such as (a) fairness, and (b) the commonweal in examining competing policy positions on pay systems.
In support of disclosure
Advocates hope to foster fair treatment of personnel and avoid capricious actions that further special interests at the expense of the public. Disclosure results in greater fairness for both employees and citizens by establishing safeguards to avoid untoward practices that harm civil servants and undermine citizen confidence. It provides a check on administrative prerogatives, while enabling the equitable allocation of resources and delivery of services. Indeed American Federal of State, County, and Municipal Employees representative, Douglas Martin, pointed out that “disclosure of employee salaries helps us make our case that state employees are underpaid” (personal communication, November 19, 2010).
Salary plan secrecy, in contrast, is a form of managerial control, hampering the ability of personnel from being informed and empowered. For example, “Secrecy norms,” as Edwards (2005, p. 591) found, “lead workers to believe that they have fewer legal rights than the law actually affords.” Not enforcing sunshine legislation, and permitting employers to evade it, is an affront to the rule of law. Confidentiality feeds dissatisfaction, low motivation, and distrust (Colella et al., 2007) because it treats employees like children—they do not know what determines their salaries: chance, mistakes, and/or bias. Secrecy also limits employee mobility, as Danziger and Katz note (1997), because it reduces the ability to identify better-paying employers. This paternalistic approach denies adults accurate information about an important dimension of their worklife.
Instead, people should be shown respect; what should be good for one should be good for all. If individuals are treated as ends in themselves, and never as means, then they should know what policies are implemented in their name. Secrecy as a universal principle has no place in democracy; as such it represents a violation of the commonweal. Pay confidentiality policies, in fact, may play a part in sex discrimination, which is one impetus for the oft-proposed (and House of Representatives passed) Paycheck Fairness Act aimed at strengthening the federal 1963 Equal Pay Act.
In opposition to disclosure
Disclosure of salaries often overreaches and is neither fair nor necessary in the name of the commonweal. Confidentiality may be preferred not only by employers (who understand clearly the discretion it provides) but also by employees (who wish to avoid embarrassment and invidious comparisons). Both find that job satisfaction may decrease and conflict increase with disclosure (Colella et al., 2007), as jealousy, resentment, humiliation, opportunism, and discontent can accompany the release of detailed pay information. The fairness issue is shown as follows by discussing concerns between (a) peers, (b) position levels, and (c) public-private sectors.
Regarding peer relationships, one state employee (anonymous, personal communication, July 7, 2010) experienced unwelcome conflict when traveling with coworkers to a departmental function. A colleague joked that she should “spring” for lunch since she “made more than everyone else in the car.” She was quite uncomfortable because jokes can attempt to conceal genuine concerns and have real consequences. Another worker had strong feelings of resentment toward peers upon learning that his salary was less than theirs (anonymous, personal communication, July 8, 2010). Such frustrations exacerbate severe limitations on ability of managers to provide pay increases or promotions in today’s fiscal climate.
Disclosure of salaries may also affect employees differently depending on the level of their position. For those in low pay grades, disclosure can negatively affect job satisfaction due to humiliation or embarrassment. Indeed, most discontent due to pay disclosure come from rank-in-file positions, as management-level personnel feel less threatened and better understand inherent variability in salaries (Trina Vielhauer, state manager, personal communication, July 8, 2010).
A final issue when questioning the fairness and commonweal considerations of transparent salaries is that private sector workers—many doing work similar to that of public employees—are allowed the full range of privacy rights, yet their governmental counterparts are not. For instance, while Article I, Section 23, of Florida’s constitution reads, “Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.” And the next sentence states, “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Thus, although the privacy provision exists to protect individual rights, the constitution also includes a broad clause to limit that right to only those citizens who do not work for a public entity. This inconsistency and double standard suggests the commonweal is best served by treating all employees, public and private, in a like manner.
In short, real or perceived pay inequities between peers, position level, and economic sectors are a source of friction. People generally are made to feel worse off by disclosure because it points to their relative standing in the organization and society. Job satisfaction depends not only on one’s absolute earnings but also how that pay compares to others (Moretti, Card, Mas, & Saez, 2010). “Inequality, rather than want, is the cause of trouble,” according to an ancient Chinese saying.
To summarize briefly, disclosure advocates see an ethical duty to treat people as ends, not means to some supposed good; applied to salary transparency, the duty is not to hide facts. Critics see broad and deep disclosure policies as creating unnecessary harm. Relying exclusively on rule-based analysis, however, may provide inadequate guidance and induce rigidity. Attention now focuses on the final approach shown in Figure 1, virtue theory.
Virtue-Based Analysis
In virtue ethics, answers to the question of “What to do?” have little to do with results or rules and everything to do with the kind of person one is and the type of polity in which he or she lives. Personal and collective character offers a third perspective when assessing the ethical advisability of open pay laws. It asks, “Does a proposed decision improve individual and community character?” 7
This philosophy is compelling for public administrators because it is a personal, subjective approach to ethics; that is, decisions are informed not only by consequences and duties but also by the quality of individual and community character. A decision maker may not be able to control circumstances but can control his or her character. What is right is that which nurtures individual excellence and contributes to communal well-being. Indeed, a person cannot be understood apart from the larger community in which she or he participates.
Although a definitive list of virtues does not exist (virtue theory avoids formulaic thinking and emphasizes one’s moral identity instead), a virtue is an excellence or trait. Virtue is found between the extremes of excess and deficiency, Aristotle’s “golden mean.” Courage, for instance, is the mean between foolhardiness and cowardice. In every situation, the person will determine the mean—neither excessive nor deficient—based on reason and experience appropriate to the circumstance. Preeminent virtues—integrity (a product or synthesis of virtues such as honesty, moderation, justice) and prudence (the capacity to recognize moral challenges and respond)—are integral to moral nobility. Such individuals and policies are guided by principles, not popularity or expedience.
In support of disclosure
The career civil service is clearly subject to manipulation. As noted earlier, scandals including coercion of personnel and misuse of authority were often the catalyst for sunshine legislation with pay disclosure as byproduct. These laws are designed to show respect for employees (and citizens) by signaling that the first loyalty of public servants is to the constitution and its purposes; their integrity should not be put at risk by making them susceptible to political and administrative pressures. This helps ensure that personnel exercise prudent judgment when advising officials and implementing public programs.
Open pay systems also evince concern for the welfare of civil servants, and the populace, by discouraging managerial manipulation. For advocates, these laws, at least indirectly, encourage equitable allocation of resources and can foster integrity in public service and thereby promote accountability to the citizenry. This can spur devotion to public purposes rather than special interests. The government perceptions are crucial, and the “appearance of impropriety” standard is quite real. “Everything is presumptively open,” said James Parker Rhea, general counsel for the First Amendment Foundation (personal communication, November 23, 2010). Thus, although sunshine statutes tend to focus on one aspect of public interest—the citizen’s right to know—it is “in the areas identified as exempt from openness requirements that the other two elements of public interest (privacy and institutional mandates to serve the public interest) are acknowledged” (Cleveland, 1985).
In opposition to disclosure
The separation between politics and administration is deeply ingrained in the civil service. Merit principles are widely recognized as cardinal imperatives, ethics codes reinforce these principles, and organizational structures are developed to implement them. Statutory law and common law protections exist, often buttressed by union contracts. These various elements create overlapping requirements that satisfactorily protect civil servants, negating the need for disclosure. Nurturing of integrity among employees through training and development may be more fruitful than pay disclosure initiatives.
Open government policies that have outlived their usefulness are no longer necessary or prudent without compelling evidence of abuse or wrongdoing. Indeed, many citizens have negative views of government workers as unresponsive, unproductive, and unaccountable. Nondisclosure helps to ensure that government personnel are responsive to the will of the people as determined by electoral results. To have political accountability, elected leaders need to be able to expect that public servants are loyal to the current administration’s values and objectives. Pay is one management tool that can help in that endeavor. Furthermore, because pay disclosure does not indicate whether an employee is performing well, it does little that is constructive and panders to voyeurism, hardly virtuous behavior (Gomez & Wald, 2010, p. 118).
From a virtue ethics perspective, in short, open-pay systems nourish integrity and professionalism of employees by focusing attention on the general public interest. Alternatively, it can be argued that adequate protections already exist to avoid or correct abusive practices. Cultivating personal integrity through training and organization development is preferable to heavy-handed regulation and reliance on past policies that are no longer needed. Yet virtue theory’s strength—subjective judgments inferred from character—is also its shortcoming: If supporters and opponents of pay disclosure perceive they are good, then it is likely for them to think that what they do is good.
Discussion
Responsible policy makers, by definition, are obligated to develop virtues, respect rules, and consider results. The ethics triangle, nevertheless, cannot produce a final, perfect decision for all seasons. Instead, a conscious attempt to reconcile conflicting values highlights a key function of decision making: generating alternative viewpoints, systemically evaluating them, and crafting sound policy.
The triangle enables the management of ethical ambiguity and provides help in making the inevitable compromises. When choices are guided by benevolence, creativity, and an ethic of compromise and social integration—a moral tenet of democracy—there is at least the satisfaction that the problem has been fully examined and that the decision can be rationally defended. An integrated approach that takes into account results, rules, and virtues can facilitate achievement of that goal.
Each of the angles of the ethics triangle contains contending arguments for and against disclosure of employee salaries. Taken separately, a single position may appear ethical at some points and unethical at others. The triangle, it follows, offers choices, not formula; it informs, but does not eliminate, the need for judgment; it does not weigh the relative weight of each argument. As Aristotle admonished, one should not expect more precision from the subject matter than it can allow; morality is not mathematics.
States have had decades of experience with open government laws; while there is controversy, these laws are broadly accepted. Still, the popularity of salary disclosure legislation does not invariably imply that it is desirable or effective; neither openness nor secrecy are problem free. Indeed, recent shifts in administrative doctrine from the guardian model to the politico model call into question the fundamental underpinning of the public service and provide impetus for corporate-style management practices.
Looking at each point of the triangle in sequence, what then is the greatest good for the greatest number? As indicated, salary disclosure laws contribute to serving the greatest good by emphasizing efficiency, holding personnel responsible for meeting citizen needs, securing merit-based decision making, and fostering employee and citizen trust. A significant public need is seen for an open civil service as a key element of a majoritarian form of government. However, the analysis above also showed that secrecy norms can be quite sensible in seeking the greatest good. The claims of open government supporters, furthermore, are not sufficient to limit constitutional freedoms of one sixth of the nation’s workforce. Finally, the drawbacks of disclosure laws are borne by employees, while purported and speculative benefits accrue to the diffuse, often indifferent, public.
The largest stakeholder, though, is the citizenry. Closed government supporters suggest that productivity will soar when government is run like a business. Yet there is little documentation to substantiate this view, perhaps because productivity, morale, and loyalty may be placed in jeopardy if secrecy is the norm. In addition, government can adopt proven business tools (e.g., competitive pay, teamwork) and still operate in the sunshine. A policy maker using result-based ethics may find attractive confidentiality arguments, but the greatest good is served by open government legislation.
The second aspect of the triangle, rule-based ethics, focuses on what is good for one is good for all. Although some transparency laws may overreach, they provide a check on administrative prerogatives while enabling the equitable utilization of financial resources and delivery of services. Secrecy is contrary to the principles of a democratic republic; it fails to uphold the public trust by denying information to employees and the public who need it to make informed decisions. Salary plan secrecy is contrary to the rule of law and feeds dissatisfaction, low motivation, and distrust.
Finally, virtue ethics seeks individual excellence and collective well-being. There may be no easy answers based on results or rules, so a person must act in a manner to enhance integrity and prudence in policy determination. Open-pay systems show concern for public servants by protecting them from abuse. In doing so, such laws can help ensure integrity among those in public service and thereby promoting accountability to voters and taxpayers. This can encourage dedication to public purposes rather than special interests. Alternatively, cultivating personal integrity is preferable to heavy-handed regulation and reliance on outmoded policies that are no longer needed. Nondisclosure ensures that public workers are sensitive to the will of the people as shown by election results. To have accountability, in fact, elected officials must be able to ensure that civil servants are responsive to the administration’s goals.
Conclusion
Overall, and despite certain advantages, pay confidentiality can be ethically problematic from result-, rule-, and virtue-based perspectives. To have public authority is to be responsible for one’s actions. Salary disclosure provides a check on the moral responsibility of those in power to the benefit of both the employees and citizens. Open compensation systems encourage justifiable salary decisions and help personnel to better understand the agency missions, why they earn what they do, and what they should do to earn more. In comparison, a closed pay system can compromise the greatest good, duty, and personal integrity. In so doing, it needlessly puts a hallmark of modern democratic government—a professional civil service—at risk.
Implementing Balance in Transparency Policy
Yet disclosure requirements applied across the board to all employees, with no distinction regarding the nature of the work or position involved, disregard important factors that deserve consideration. Whereas the ethics triangle analysis suggests an open policy, alternative ways to disclose salary data without revealing individual identities might be explored.
Releasing this information by position, not personal names, at least partially protects privacy and may also reduce conflict, especially for lower-level staff (the same can be said for salary ranges or “pay bands”); indeed, 13 states provide salary data without identifying individual employees. Another alternative to full disclosure is to institute a threshold of CAD$100,000 such as Ontario’s Public Sector Salary Disclosure Act (Gomez & Wald, 2010). Publishing salaries above a certain amount would address concerns held by lower-level staff, while still providing the citizen access to earnings of the high officials. It would, however, keep the public from knowing the wages of most civil servants, thereby inviting opportunities for nepotism and cronyism that might otherwise not be as blatant.
This strategy also requires constant updating to adjust for inflation, unless (as Gomez and Wald suggest) the threshold is based on a ratio of salaries from the top of the pay distribution, not on a static salary amount. These solutions may be difficult to implement because adding exemptions requires rule-making changes which can sometimes be contentious and arduous and assumes political support.
A third approach, perhaps used in combination with the above strategies, removes the exclusive focus on salary. McGregor states, “Although money has only limited value in satisfying many higher-level needs, it can become the focus of interest if it is the only means available” (1957, p. 160, emphasis in original). He identifies the various needs people seek to be met, including physiological, safety, social, ego, and self-fulfillment needs.
Possible avenues to motivate employees beyond pay, accordingly, include giving meaningful rewards and recognition, providing opportunities for challenge and training, creating a cooperative and friendly workplace environment, giving interesting assignments, and offering feedback focused on development. Focusing on motivation could not only potentially reduce discontent but could also mitigate issues of retention and productivity for all employees. If an agency is an exciting, engaging place to work, then pay concerns, though certainly not unimportant, become secondary to getting the job done.
Due to the inevitable tensions in attempting to serve the public interest, Cleveland (1985) posits signal principles to guide policy making: (a) community interests should supersede those of any one of its parts, (b) there should be a presumption of openness, and (c) although openness is key, it is just one element, in addition to privacy and institutional mandates to achieve their mission, that must be taken into account.
It is evident that public interest and openness currently supersede other important values such as personal privacy and workplace harmony. Stated differently, what may be desirable in principle can be problematic in practice. What may work in practice, however, may be suggested by three conditions. Open salary policies could work best when (a) individual and group performance can be measured objectively, (b) performance measures can be developed for all job duties, and (c) effort and performance are related closely over short time periods (Cascio, 2006, p. 431). Yet the fact that often performance cannot be measured for all job duties, and that formal evaluations are frequently done annually, suggests that open government policies are likely to remain controversial in the years ahead.
Future Directions
Further research in at least five areas is needed. First, a variety of workplace issues such as conflict of interest for both the employee and the employer, divided loyalties for personnel seeking office, or the potential creation of a hostile work environment because of transparency laws will assist in understanding and addressing the pay–policy tensions. Second, available attitudinal survey data are decades old (e.g., Lawler, 1965; Thompson & Pronsky, 1975; see, however, Moretti et al., 2010); updated perceptual information would be especially useful for substantiating claims, particularly those made in support of results-oriented ethics.
Third, case studies would also be illuminating to understand how selected countries, jurisdictions, or departments handle open government and salary disclosure issues. Next, building upon utilitarian theory, a cost-benefit study might be useful: What benefit is provided by allowing access to pay data and at what cost does this come?
Finally, the emergent field of behavioral ethics suggests that efforts to promote exemplary behavior can act to increase unethical actions. Personal moral activities, stated differently, exist in a dynamic equilibrium where good behavior may provide a rationale for bad behavior and vice versa. With respect to disclosure requirements (a topic Bazerman and Tenbrensel discuss briefly), not only could they “fail to achieve their presumed objectives, they can actually have perverse effects on ethical behavior” (Bazerman & Tenbrensel, 2011, p. 115). In such an environment—where good people can do bad things and bad people can do good things—the need for authentic, transformational leadership is evident (Bass & Steidlmeier, 1999). Research—qualitative and quantitative, foreign and domestic—in these five areas could reveal how, or whether, Cleveland’s guidelines and Cascio’s implementation principles are balanced and why.
Footnotes
Authors’ Note
The authors’ names are listed alphabetically; each contributed equally to the article.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.