by Eve Moran and Gregory Ogden
Public trust in government is earned when its institutions apply the power and resources entrusted to them in a manner consistent with strong ethical values (i.e., honesty, fairness, and integrity). For this reason, states have adopted statutes, rules, and policies to guide the ethical conduct of utility regulators (and other agency employees) in both their personal and professional lives.1
In large part, these ethics laws are modeled on judicial ethics codes. Accordingly, they caution against appearances of impropriety, conflicts of interest, and ex parte communications, recognizing that these circumstances cast doubt on the impartiality and integrity of the regulator’s decision. Typically, the laws also forbid the acceptance of gifts, using the prestige of office for personal gain, and conveying the impression or permitting others to convey the impression that they are in a “special position” to influence the regulator.
Most ethics laws and regulations were adopted at times when people communicated non-electronically, with the focus being on a single recipient. Today, however, computers, tablets, and smart phones are ubiquitous. A growing number of Internet platforms (e.g., Facebook, Twitter, and blogs) are reshaping the ways we initiate, maintain, and grow a variety of relationships. This change in medium does absolutely nothing to alter the long-established ethical obligations of regulators. But there is evidence to suggest that a regulator’s social media use must be accompanied by a heightened awareness of the risks for ethical misconduct that attach in the digital universe. This evidence arises from the attention given to social media use by the judiciary.
As social networking sites gained popularity among members of the judiciary, a number of state judicial ethics committees began to consider whether and to what extent a judge’s use of a social media platform, such as Facebook, implicates the judicial code of conduct.2 Adding its voice, the American Bar Association (ABA issued Formal Opinion 4623 on February 21, 2013, wherein it was prominently announced that “a judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with the relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”
The ABA Opinion is based on the Model Code of Judicial Conduct.4 It uses the term “electronic social media” exclusively in reference to Internet-based electronic social networking sites that require an individual to affirmatively join and accept or reject connection with particular persons. Recognizing that there are benefits to a judge’s social media use, the Opinion emphasizes the high importance of meeting ethical standards, draws attention to specific rules that may be put at issue in social media interactions, and discusses a number of unseen risks that might ethically complicate a judge’s participation in social media.
Without doubt, the ABA’s Opinion has value for the regulatory community. Regulators, like judges, are called upon to render decisions in contested matters. Regulators, like judges, are subject to rules of evidence and codes of ethical conduct. Both must be dignified in all their social interactions, and they tend to include people in their social circles who have a relationship to their world. Regulators, like judges, are bound to comply with their respective state-established ethical obligations in both their personal and professional lives. And, to meet with their ethical duties, regulators, like judges, must have empathy for the public perceptions that might reasonably be formed on the basis of their social media connections and communications.
The ABA’s Opinion is sprinkled throughout with words of meaningful caution. Judges, it says, “must be very thoughtful” in their social media interactions with others. Judges must exercise “proper care” and “be mindful” of their ethical obligations. The “judicious use” of social media is required. In the end, and assuming “proper care,” a judge’s use of social media will not compromise the ethical obligations any more than other more traditional, and less public, modes of social interaction.
These admonitions to the judiciary apply with equal force to a regulator’s use of social media. By its very nature, the medium of social media is fast. Indeed, informality, ease, silence, and speed dominate in the social media world. Connections are near instantaneous and communications are broadly exchanged in minutes, if not seconds. Given the ability to instantly communicate 24 hours a day, 7 days a week on all manner of mobile devices, messages are unthinkingly sent when emotions run high. All these factors make it easy to blunder and, owing to the medium, are nearly impossible to correct. In short, a regulator’s ethical obligations are put at risk when communicating in such an impulsive arena and at times when only one’s own self-interest comes into view. To counteract these forces, a deliberate effort and conscious thought is the requisite engagement.5 As Warren Buffet said, “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.”
It is critical for regulators, as for judges, to slow down, reflect upon the implications and consequences of both their communications and connections, and carefully monitor the appropriateness of their social networking behavior. Ethical thinking requires such vigilance, and it is no different than the deep and complex reasoning that regulators apply to all of their official decision-making processes. Thinking in the course of social media interactions will allow the regulator to consider the spirit as well as the letter of the ethical laws, to have empathy for societal concerns and perceptions, and to ultimately exercise informed, cool, and rational judgment consistent with ethical obligations.
While the public at large need not engage in such deep analysis when using social media (sometimes to its own detriment), a regulator’s requisite keeping to high ethical standards demands the effort.
Eve Moran is Of Counsel at EimerStahl, LLP and a former administrative law judge at the Illinois Commerce Commission.
Gregory Ogden is Professor of Law at Pepperdine University School of Law.
- 1 A Code of Ethics for Members of the National Association of Regulatory Utility Commissioners was adopted on November 17, 1977.
- 2 Although all states considering the question agreed that judges may join social networks, there was a split among the jurisdictions as to the propriety of judges “friending” lawyers who appear before them in court.
- 3 ABA Opinion 462, Judge’s Use of Electronic Social Networking Media, is available at www.americanbar.org.
- 4 Opinion 462 notes that laws, rules, and opinions promulgated in individual jurisdictions are controlling.
- 5 A fascinating book, Thinking, Fast and Slow by Nobel Prize economist Daniel Kahneman, discusses how the brain uses two systems to process information and make decisions. System One is fast, intuitive, self-centered, and emotional; System Two is slower, more deliberative, effortful, and more logical. Meeting ethical obligations requires engagement of the latter.
Posted on: November 4th, 2013