Moderation. Avoid extremes; forbear resenting injuries so much as you think they deserve.-- Benjamin Franklin, The Autobiography of Benjamin Franklin (1791), p. 82
A moderately honest man, with a moderately faithful wife, moderate drinkers both, in a moderately healthy house: that is the true middle-class unit.-- George Bernard Shaw, Maxims for Revolutionists (1903)
Background. An Iowa City attorney, upon discovering that he had overlooked the need to request documents from opposing counsel in a timely fashion, made a series of mistakes. He predated a letter of request, sent it to opposing counsel, and when called on it lied to the judge. In our recently digitized world, the letter contained code that recorded and revealed the actual date of the letter's creation.
The legal profession holds its members to detailed and high ethical standards embodied in formal rules and normally enforced by a state's supreme court. See Iowa Rules of Professional Conduct. This lawyer's behavior was brought before the Iowa Supreme Court Grievance Commission, which has recommended his license be suspended for six months. The Iowa Supreme Court can modify that, but it is clear he has been severely punished -- with the suspension of his license, the need to resign from his law firm, and the emotional and professional damage as a result of the widespread publicity surrounding the case.
Although there is no doubting, or excusing, the seriousness of the charged offenses, especially when done by someone within the legal profession, it is also notable for what it did not involve. He did not enrich himself at another's expense. He caused no firearm or other violence. He did not disparage anyone's reputation but his own. He didn't engage in sexual misconduct. His actions could not have benefited him in any way -- aside from covering up his forgetfulness. Indeed, his primary motive may have been to better serve his client. Obviously, his actions failed on both counts, as should have been obvious to him ahead of time.
Normally, there the matter would have rested. A local lawyer, caught in an ethical violation, has his license suspended. In a town the size of Iowa City, that is front page news: Adam B. Sullivan,"McGinness could face license suspension; Commission finds School Board member falsified documents, recommends 6-month suspension," Iowa City Press-Citizen, September 5, 2013, p. A1. But that probably would have been the end of it. Actually, for two weeks it was the end of it. No more big stories; no editorials.
"Ethics violations raise questions about McGinness," Iowa City Press-Citizen, September 18, 2013, p. A13. And the next day there was a follow-up story on the responses from the school board members and others ("Iowa City Community School Board members aren’t saying much about a fellow board member’s legal woes that first were reported two weeks ago.") Adam B. Sullivan, "Legal woes bring mostly silence; School Board member: McGinness' troubles not connected to district," Iowa City Press-Citizen, September 19, 2013, p. A1. [Photo credit: Nicholas Johnson; not the current board members.]
And that is what prompted this op ed column in the Press-Citizen. It was stimulated by the facts and issues in this case: "Should the fact of a individual's falsifying documents and lying about it, in his private capacity as a lawyer and wholly unrelated to his school board duties, be grounds for his removal from a local school board?" But that is not it's focus, which is directed rather more generally at an exploration of the factors that one might appropriately take into account when evaluating the consequences of behavior that violates community (or professional) norms. If, as George Bernard Shaw is quoted above as suggesting, the advice that we should "be moderate in all things" means that most of us are satisfied to be "moderately honest," how much higher a standard is it reasonable for us to set for our elected officials -- especially with regard to matters unrelated to their official responsibilities?
Iowa City Press-Citizen
September 20, 2013, p. A7
A Frenchman, asked why he kissed women on the hand, replied, “Because you have to start somewhere.”
But where should one start with the porcupine of prickly issues emerging from the kerfluffle surrounding Jeff McGinness’ difficulties? There’s little about it you’d ever want to kiss anywhere.
In law professor fashion, I’m not offering answers – just questions. McGinness, school board members, citizens, the Press-Citizen -- all of us need to think this through for ourselves.
But I do see some issues.
How should we go about judging what is, and is not, forgivable in others? Are there any normative principles? Or is every case a one-off?
We can start with Iago’s observation, “he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.” Othello, Act 3, Scene 3.
Reputation is a valuable possession. Corporations put a dollar value on goodwill. Spreading falsehoods is defamation. The unnecessary spread of truth can also be harmful. At a minimum, we should think twice before speaking ill of others.
Deserved or not, the publicizing of one’s faults is itself a serious punishment.
The forms of expressing disapproval extend over quite a range. It can take the form of a private thought, a whispered comment, public speech, or newspaper editorial. It can include a demand for resignation, or other punishment.
Suppose the irrefutable facts were that Governor Branstad regularly instructed his drivers to speed. (His Lt. Governor said they have a tight schedule – reminiscent of President Nixon’s explanation to David Frost that, “When the President does it, that means it is not illegal.")
Would it be reasonable, or fair, to try to bring about his removal from office for this behavior? If he also served on a church’s board of trustees, should he be asked to resign?
Does disapproved behavior at work warrant harsher penalties than if done in a bar, or at home?
Is it less bad if no one has suffered any physical, financial or reputational harm – aside from the perpetrator?
Should we distinguish between a weekend problem drinker who’s a top employee, and one who shows up drunk, or drinks at work?
How serious would you consider a coach who covers up a valued player’s crimes? A businessperson who lies about their “need” for a TIF? A professor who raises the failing grade of an athlete to keep him eligible? The university’s administrator who requested she do so? Someone who files taxes late, and predates the check? A church official who moves a pedophile minister to another church? A negligent doctor, threatened with a malpractice suit, who forces his nurse to lie? An administrator who is known to be condescending and mean to store clerks, waiters, and trades persons working on his property?
Should these facts, if sufficiently proven, disqualify those persons from serving on the board of a local, non-profit, volunteer organization?
Does it make a difference whether a financial vice president embezzles funds from her company, or as treasurer of her church? What if she had an off-duty ethical lapse wholly unrelated to the kind of work she does? In short, does it make a difference that the wrongdoing involves a personal quality required by her job? That it was done elsewhere?
How far can one indiscretion fairly be stretched to general conclusions about character? During a trial, unless a party or witness raises character issues, there are limits on the introduction of past derelictions. Of course, in our day-to-day lives we have neither the resources nor the restraints of trial lawyers. One lie may not legitimately make one “a liar.” But we recall “fool me once, shame on you; fool me twice, shame on me.”
Finally, we’re voters. We can vote for or against elected officials for whatever fool reasons we want. But we’ll feel better about ourselves if we’ve been thoughtful and fair in our judgments.
Nicholas Johnson, a former member of the Iowa City Community School Board, teaches at the University of Iowa College of Law and maintains www.nicholasjohnson.org and FromDC2Iowa.blogspot.com.