Enforcing Ethics

In the last few months there has been a discussion, primarily on the Archives and Archivists Listserv, about enforcing SAA’s Code of Ethics in light of a researcher’s allegations about the National Archives and Records Administration. Commentators have criticized the Society for not investigating the alleged ethical shortcomings of some of our colleagues in Washington.

The Society’s decision not to formally investigate the situation is based on a number of policy decisions that rest upon several assumptions. To clarify the situation, I will review the current SAA policy regarding enforcing the Code of Ethics, turn to the assumptions that underlie that policy, and offer a suggestion of how the Code can be used to good purpose.

First, the current policy. Although both Immediate Past President Mark Greene and I have attempted informally to assist in resolving the dispute and have reported to the SAA Council on our efforts, the reason that SAA has not initiated a formal investigation is based on previous Council actions. In 2003 the SAA Council chose to remove the enforcement clause from SAA’s Code of Ethics. The Council reiterated that decision in 2005 when, after broad discussion by the SAA membership, the Council adopted a revised and “aspirational” Code. Most recently, SAA’s Committee on Ethics and Professional Conduct has discussed revisiting the Code of Ethics. In a February 2009 report to the Council, CEPC Chair Rand Jimerson reported that:

At the August 2008 CEPC annual meeting in San Francisco, committee members in attendance unanimously expressed dissatisfaction with the Code of Ethics, and voted to examine options for revising the Code to address some of its perceived weaknesses. Although some SAA members would prefer a Code of Ethics with some “bite”— something that could be used in resolving ethical disputes — CEPC does not recommend such changes, …. CEPC members support an aspirational Code of Ethics, but one that more clearly reflects recent scholarship and professional discourse regarding archival ethics and the profession’s goals and identity.

The SAA Council looks forward to receiving the Committee’s recommendations.

Although this review of policy is useful, I understand why individuals who have called upon SAA to investigate the allegations about NARA may not consider it particularly important. Indeed, some are frustrated – and sometimes angry – when I share with them that past Council decisions restrain the Society from taking the type of action they advocate. It is always troubling when allegations are made that an institution or an individual has acted unethically. The demand to “do something” seems obvious, and the individual or group saying “no” rarely is cast in a favorable light. Despite the emotional appeal of the call to act, I believe the wisest action is for SAA to continue its current policy.

There are four observations and assumptions that underlie SAA’s current policy not to adjudicate allegations of ethical misconduct:

• Comparisons with our peer organizations,
• The mechanics of enforcement,
• The success of enforcement efforts in other organizations, and
• Legal issues.

If one were to engage in the exercise of enforcing ethics, the most obvious way to begin would be to determine how other organizations do this. The startling observation is: They don’t. The two groups to which archivists most often look as benchmarks – the library and history communities – have aspirational, non-enforceable codes of ethics. Both the American Library Association (ALA) and the American Historical Association (AHA) have codes of ethics, but neither organization has an enforcement mechanism. This fact should cause us to pause a moment and ask, "Why is this so?"

The answer begins with my second observation, regarding the mechanics of enforcement. Although it is easy to "demand an investigation," it is much harder to outline how an investigation would be conducted fairly. One begins to ask increasingly difficult questions: How is a "fair" panel of judges to be selected? How is evidence to be gathered? What are the rules for evidence? What is the standard for assessing guilt? Must the accusations be proved beyond a reasonable doubt, or will a preponderance of evidence do, or is there some third standard? When it is time to decide, must the decision of the judges be unanimous or is a majority sufficient? If a majority will do, what do we make of the likely "minority opinion"? Much like in any court of law, an investigation of archival ethics would require rules that are fair and well understood.

Some might say that although rules and procedures can be daunting, surely in the end the results would make the effort worthwhile. Calling out miscreants would improve the conduct of the entire profession. Those who believe this should consider the example of the American Historical Association. In 2003 AHA abandoned a 15-year experiment in enforcing the organization’s ethical code. What was written then makes for sobering reading: "The AHA has ended fifteen years of adjudication because it has proven to be ineffective for responding to misconduct in the historical profession." The organization added, "With this action, the AHA Council formally terminates a process of inviting and adjudicating formal complaints that began in the late 1980s. The Council does not believe that the modest benefits to the profession justify the time, energy, and effort that have gone into the process." Put quite simply, it didn’t work. This example clearly calls into question the likelihood that SAA could successfully enforce a code of ethics.

A fourth concern is legal: The penalties under civil law that can be suffered should a court of law find procedural or substantive error in an organization’s decisions. Should a federal court find that an individual was wrongfully harmed, financial penalties can be levied against both the professional organization collectively and the judges individually. This fact would surely give an SAA member pause when considering whether to sign up to render judgment about a peer! It certainly gives me pause when considering whether I would recommend that SAA expose itself to such a potential legal quagmire.

If the Society cannot practically enforce a code of ethics, then how can statements of ethics have real impact? The example of the American Library Association is instructive. Although ALA’s code is not enforced by the Association, it encourages its members to adopt the code as part of each member’s workplace policies. In this way, library ethics voluntarily become a part of well-grounded institutional policy – and become the responsibility of each institution to enforce among its employees.

A professional code of ethics is an invaluable instrument through which to sharpen our perceptions of how we relate to the world. It is an important tool in acculturating new members of the community to our ways and beliefs. It is a representation of our collective aspirations. It is a document of persuasion that is to be studied, discussed, and improved.

I welcome those who wish to contribute to that discussion to contact SAA’s Committee on Ethics and Professional Conduct as its members review the code. But in the end, the Code of Ethics is for our members to use – and perhaps place in their own work environments – rather than for the Society to enforce.

Frank Boles
SAA President, 2008-2009
March 20, 2009