Q. When leading public servants such as regulators leave their jobs, they often go to work for the same companies they used to supervise. Is this ethical?
A. There’s no question that there is a severe problem when public servants face a conflict of interest. Yet before we analyze this problem, we should acknowledge that there are also many advantages to this “revolving door” between the public and private sectors:
1. COMMUNICATION: When there is turnover between these sectors, then the communication and understanding among them is increased. It’s hard to regulate an industry effectively if you don’t have inside knowledge of how it really works. Conversely, when some business people have a deeper understanding of the regulatory process then they can conform to requirements more effectively. Excessive parochialism in each sector leads to suspicion and competition between them.
2. EDUCATION: Each sector absorbs some of the organizational culture of the other. Business organizations focused on the bottom line tend to have more accountability and discipline than agencies; agencies are more affected by the political process and learn to be attuned to the public interest.
3. INCENTIVE: It’s not always easy to attract talented people to public service. It’s easier to do this when workers feel that this sector is not a dead end but on the contrary can actually open doors for them in other fields.
Indeed, the lack of a distinctive governing class is one of the important characteristics of a functioning democracy. It seems that this advantage was also known in antiquity; the Mishna speaks of one family member being taken to the king’s service for a period of time, and Rashi explains that it was customary to take civil servants in rotation from the various families of the kingdom.(1)
However, we must acknowledge the problem of conflict of interest. It’s certainly hard to police people effectively if at the same time you are trying to find favor in their eyes as a potential employee! A regulator exercises judgment on behalf of the public; in some ways his responsibility is similar to that of a judge. He certainly must avoid the appearance of being beholden to those he regulates.
The Torah states, “Don’t take bribes, for bribery blinds the sighted and distorts the words of the righteous” (Exodus 23:8). Even a righteous person who intends to judge with integrity will find his judgment distorted by a bribe. Rabbi Yechiel Michal Epstein writes, “It’s impossible to say that the prohibition is to take bribes to distort judgment, for this is already explicitly forbidden in several places… Rather, this certainly means that taking bribes is forbidden even to vindicate the party in the right and to condemn the offender… And not only a judge is forbidden to take bribes, but also anyone appointed or occupied with a communal responsibility.” (2)
Just as bribes can distort judgment, so can the expectation of future benefits. For this reason our Sages warned that judges need to be particularly careful to avoid being obsequious to powerful individuals. (3)
How can we enjoy the benefits of cooperation and openness without having our regulators beholden to powerful interests? One way is education — cultivating a public sector with a culture of independence.
Another way is to avoid concentration of power and knowledge. When a single individual exercises too much individual judgment and controls access to too much information, the temptation and ability to depart from norms is great. The answer is to adopt norms of teamwork and transparency in regulation. The Jewish tradition is to have a panel of judges, rather than a single judge, in order to balance out any excesses or distortions of judgment; the Mishna warns, “Only One [i.e. God] can judge alone.” (4)
Conflicts of interest can never be avoided entirely, and efforts to completely prevent such conflicts create a problem of excessive polarization in public life. But these conflicts are an ethical problem, and need to be kept in control through appropriate ethical values and norms of conduct that include teamwork and transparency.
(1) Babylonian Talmud Bava Batra 144b (2) Arukh HaShulchan Choshen Mishpat 9:1. (3) Babylonian Talmud Sotah 41b and Rashi’s commentary. (4) Mishna Avot 4:8.