The Ethical Barometer

Now there’s a headline that is a tad disconcerting. New York Times, February 15, 2018, p. A21.

Raphael A. Sanchez, the top lawyer for immigration in the Immigration and Customs Enforcement field office in Seattle was charged with wire fraud and aggravated identity theft (one wonders the proof requirements for “aggravated identify theft” vs. “run-of-the-mill identify theft). He is charged with stealing the identities of seven people who were in immigration proceedings that he was handling. Between October 2013 and October 2017, Mr. Sanchez is alleged to have used the identities to open credit accounts at American Express, JPMOrgan Chase, Bank of America, Capital One, Citibank, and Discover.

Here’s the best part — Mr. Sanchez used his government e-mail to send information for his aggravated activity to his Yahoo mail account. One e-mail had the following documents attached: a utility bill, a biographical page, and a Chinese passport from a Chinese immigrant who was seeking permanent residence in the United States.

The Barometer is without words.

from the late Melvyn Weiss, a plaintiff’s lawyer whose firm (Milberg Weiss) recovered an estimated $20 billion in damages for corporate fraud for shareholders. Ironically, Mr. Weiss ended up in federal prison for 30 months for funneling money to investors for serving as the lead plaintiffs in his cases. The cases Weiss brought on corporate financial fraud were solid, and his cases resulted in accounting and financial reporting reforms. But his recruiting methods were as his sentencing judge noted, “breaking the rules.” In the ultimate irony, Mr. Weiss ended up being a Bernie Madoff victim. RIP

A middle-school young ‘un wrote into The New York Times“The Ethicist” column (Sunday, February 11, 2018), which appears courtesy of Kwame Anthony Appaiah. This poor little soul had witnessed friends cheating on a test when the teacher left the room.

Barometer note: What teacher in his/her right mind leaves a room during an exam? The urchins have absolutely no compunction about cheating. Opportunity and need — the motivations for both fraud and cheating. Their need is academic success. The teacher afforded the opportunity. Never leave the little cherubs unattended during exams, quizzes, PE class, and anything else in middle school.

The young student asked her friends to stop cheating, and they told her to “lay off.”

Barometer note: One suspects that “lay off” was soft language for another phrase.

The friends did not stop cheating, and this young student wanted to know whether to report the cheaters to the teacher.

The advice from the Ethicist: No, because it might cost them their admission into prestigious high schools. And, “losing a place at a prestigious high school can be a big deal in our society, where educational opportunity is unfairly distributed.”

Barometer note: Oh, let me get this straight. Admitting those who cheat the best is a way of fixing said injustices?

The advice from the Ethicist: No, because whistleblowers often suffer. And because the school had no honor code, there was no requirement to blow the whistle. Besides, considering the impact of reporting the students on young your life is as important as considering the impact of reporting the cheaters.

Barometer note: The sooner cheaters are found, given due process, and forced to face consequences, the less likely they are to end up with the types of sanctions that will come as their chutzpah (born of getting away with it) increases. Why must we assume that reporting them is a bad thing with only negative consequences? Save a life; report a cheater.

The advice from the Ethicist: Write a letter to alert the school to cheating generally. Suggest that teachers stay in the room.

Barometer note: Report fellow students who cheat and we might reach a point where the presence or absence of the teacher will be irrelevant in levels of academic integrity. Nothing that is meaningful or important ever comes easy.

Last Barometer note: It never occurred to the Ethicist to think of alternatives. Tell the students that either they can self-report or be reported. Sometimes backing cheaters into a corner is the only way.

Tom Price was replaced as Health and Human Services(HHS)secretary after news reports of his ownership of health-care related stocks surfaced. Conflicts, conflicts. Mr. Price was replaced by now secretary Alex Azar. Poor Mr. Azar had to show Brenda Fitzgerald, the head of the Centers for Disease Control and Prevention (CDC) the door, after a report that during her tenure as Georgia’s health secretary she had owned shares in five tobacco companies (Reynolds American, British American, Imperial Brands, Phillip Morris, and Altria). Further, Ms. Fitzgerald had begun her tenure at CDC with initiatives to convince Americans to stop smoking. Her divestiture of the tobacco stocks was glacially slow and becoming an irritant to congress as she recused herself from all matters tobacco.

The spokesman for the CDC indicated that the stock ownership “complicated” her work at CDC. Conflicts of interests do tend to bring those complications to the fore. However, beyond the slow divestiture, was her purchase of shares in a Japanese tobacco company one month after taking over the CDC. Once that purchase hit the airways, Ms. Fitzgerald resigned.

Here’s the Barometer’s thought — if you are the boss of getting people to stop smoking, why would buying stocks in tobacco companies be a smokin’ deal? (as it were) The conflicts are embarrassingly large, but perhaps we should also question the now former secretary’s wisdom and judgment as well. Then again, the purchase was of shares in a tobacco company located in a country where they puff away without CDC efforts. Perhaps the move was a shrewd one, diabolical even. She was betting on smokers in Japan. You can’t make this stuff up.

Despite the fact that Wells had already shuffled its board once, the Federal Reserve is now requiring Wells Fargo to remove at least four of its current directors. The Feds’ concern? Eight of the current directors were on the board during the period when Wells managed to haul in 3.5 million fake accounts and engage in other consumer debt shenanigans. The Feds did not name names for ouster, but Wells will proceed with the changes.

We have seen board member held personally liable for damages. We have seen board members charged civilly in some fraud cases. But, actually getting down to “You’re outta here,” ’tis a rare thing. However, Wells has had a tin ear for some time now and sharpening up the hearing (as in putting ears to the ground) does require new minds, new views, and new blood.

There was a revealing, and, as yet, unnoticed moment in yesterday’s Super Bowl game, that was most revealing about the character of Tom Brady. The Barometer’s husband and son began hooting during the fourth quarter about the play that resulted in the ball going back to the Philadelphia Eagles.

Tom Brady dropped the ball and the Eagles’Derek Barnett picked it up with less then two minutes to play. The excitement over Barnett and the turn of the game has shifted focus away from Brady’s beneath-dignity move. Watch and re-watch the video. You can see Brady’s head turn after he dropped the ball. He is looking directly at the scrambling Eagles. It is then that Brady raises his hand in the air (with no football) and pretends to throw the air ball. Brady was using a fake throw to try and get an incomplete pass call. And no ball for the Eagles. No Super Bowl. No call to destiny. No Philadelphians. finally able to exercise their unalienable right to roll cars over and smash store windows in celebration.

In the NFL, if the quarterback drops or loses the football while he is bringing the ball forward in a passing motion, and the ball touches the ground, it is considered an incomplete pass. If the quarterback drops or loses the football at any other time, it is considered a fumble, as if any other player had dropped it, and becomes eligible for pick-up, as Barnett did, and a field goal, which the Eagles did, taking them to the final, victorious score of 41-33.

Brady has pulled this make-it-look-like-an-incomplete-pass-move before. Sam Jennings, Barometer offspring, shared that Brady pulled the stunt in 2002 when the Raiders’ (from whatever city they were in then) quarterback, Charles Woodson, sacked Brady, which, at least initially, appeared to result in a fumble. Taking full advantage of that fumble was Raiders’ linebacker, Greg Biekert, who picked up the ball. That pick-up from a fumble would have been game-over for the Patriots and a victory for the Raiders because only a minute was left in regulation play.

Officials reviewed the play, and eventually determined that even though Brady halted his passing motion and appeared to be in the process of “tucking” the ball back into his body, it was rather an incomplete pass and not a fumble under NFL rules at the time. The original call in the Raiders’ favor was reversed. The Patriots got the ball back and positioned themselves for a 45-yard field goal that tied the game. In overtime, the Patriots got yet another field goal, which made them the winners of Super Bowl 36 (enough with the Roman numerals). Some say that was the beginning of the Patriots/Brady/Belichick franchise that brought 5 Super Bowl championships. Yesterday the streak was broken as Brady was hoisted by his own petard. His fake post-fumble pass looked desperate and not worthy of a world-class athlete. Also, it did not work. The inexplicable and gray-area behaviors of Brady and the Patriots finally caught up with them.

Some would say, “Do you think he was really that stupid?” The Barometer is reminded of a Gunsmoke episode in which Marshal Dillon warns a rancher to be on the look-out for a bad guy who is a suspect and the rancher is a potential witness against said bad guy. The conversation that follows goes, “I really don’t think he is that stupid as to try to hurt me.” The wise reply is, “Sometimes desperation is the same thing as stupid.” Desperation begets desperate moves, which are generally some form of cheating and always stupid.

Putting political leanings aside — the State of the Union provided a tapestry of profiles in courage that brought tears, and, at once, feelings of awe and shame. Awe for the heroic acts and commitment to values, jobs, service, and others that we learned of through the guests present. Shame for complaining about losing your Hydroflask when three sets of parents lost a child. Shame for just sending a check to a charity when a police officer and his wife adopted the baby of an opioid addict struggling to find a way to save her life and her baby. Shame for complaining about long work days when a Coast Guard pilot kept flying through rain, electrical wires, and dark of night to save 41 lives and a forest ranger went into the flames to save young girls at camp from a fiery death. Shame for the comfort we feel as soldiers, police officers, and border agents risk everything for our safety. Shame for not recognizing the blessings of freedom and plenty as a young man held up his wooden crutches — a symbol of his escape from and continuing victories over hunger and tyranny. Shame for a pop culture that was abuzz, until last night, as it covered its profile in courage:the ultimate sacrifice of wearing a black $10,000 designer dress to an award show. We have now been appropriately and necessarily challenged to work on the best in ourselves, which can never reach the heights we witnessed last night, but will cause us to think, thank, care, help, and stand more often.

In order to establish that diesel emissions were not harmful, Volkswagen got a lab in Albuquerque, put 10 monkeys in airtight chambers (with cartoons playing to entertain them), and then pumped in emissions from a VW Beetle. The goal was to show that diesel emissions were not harmful to monkeys (ergo, they were not harmful to humans). Since VW had, at the time, put all its eggs into the fuel-efficient Diesel engine, it needed to get in on the public policy arguments about the effects of inhalation of diesel smoke. Mixed metaphors aside, you cannot put VW and emissions tests together in a room and assume accuracy. The VW used for the monkey tests had been set up to produce false data on the diesel emissions. Just like all the cars VW sold — actual emissions levels were altered by a software program installed in the vehicles.

The scientists conducting the academic tests were not aware of the emissions doctoring. The Beetle had controls on the emission of nitrogen dioxide — the pollutant linked to asthma, bronchitis, heart attacks, and possibly lung cancer. Ironically, even with the controls, the studies were a bust. The scientists could not produce a paper for publication, a requirement for receiving their final payment. There was no paper because the emissions falsifications in most VW vehicles (for which VW paid $26 billion in fines) came to light. The head of the Albuquerque testing concluded, “I feel like a chump.” Jack Ewing, “In Diesel Study, Real Monkeys, But Rigged VW,” New York Times, January 26, 2018, p. A9.

You know them — they board Southwest Airlines flights — the airline with no assigned seats. Then, they save seats for their friends who are coming on later because they have a lower number or a different boarding group. And, Southwest now has a $15 feature. You pay an extra $15 for early boarding so that you can get a good seat, but you don’t have many choices the seat-savers have scooped them up using coats, iPads, and other seat markers. Some families traveling together pay the $15 for one person. That person boards and then saves seats for spouse, children, grandparents, whomever.

Passengers call them seat cheats, seat hoarders, seat jerks, and cheapskates (because they do not pay the $15 extra). Southwest takes no official position on the seat-savers, but that Swiss neutrality in the battle for a little extra leg room may have to change because passengers are getting into tussles. Southwest is reluctant to create a policy on saving seats because flight attendants would then have to enforce the rule and they have other duties. Flight attendants long for a policy because they have to settle ugly disputes. For an airline that has no class of customers, the airline is creating several classes with early payment, seats-savers, and the regular customers who now are the steerage.

The venue is different, but the underlying issue is the same: Cuts in line. The seat-savers are engaging in the internationally irritating practice of giving those who come late to the party a primo position by letting them cut in line with them and ahead of others. The notion of fairness underlies our dismay over these practices. There are no laws or regulations on cuts in line (except perhaps in Seattle where there is a penalty for cutting in line when driving your car onto the ferry), but it remains one of the last bastions of self-control when it comes to cheating. Shame, arguments, staring — these are the tools we use to enforce the ethical norm of not cutting in line.

An online survey found that 56% of the respondents called seat-savers “the worst.” However, 9% of the respondents said that they do it themselves, and another 9% said that it does not bother them. And 26% said they want assigned seats on all flights. The 26% have given up on enforceable norms.

Professor Peter Henning, Wayne State University and former federal prosecutor. The Barometer realizes that prosecutors develop a certain cynicism over the years. However, the good professor is just wrong. Even if we accept his premise that you cannot train people to be ethical, we can deny the second part — the access to money.

Unions have had a run of money from its tills — in the millions. Yes, it is access to money that allows embezzlers to do their thing. We in the field of ethics and compliance get the internal controls going so that those so inclined cannot find a way to do their stealing.

As one peruses the list of union embezzlements, there is a common thread. Local union officials teamed up, as it were, with outsiders to get their scam going. That area of third-party contracting is where most internal and external auditors are at their best. They know how to get at their access, their documentation, and the missing funds. In short, the union schemes are not creative nor difficult to detect. If you can’t train ’em, you can prevent their activity. Weak internal controls is more likely the cause of the union blues. And that, dear Professor Henning, is the access, and that we can control.

Now that we have settled the second part, back to the first part. The unethical will always be among us. However, there are degrees of unethical propensity. The born-thieves probably cannot be helped by training, but the fence-sitters can be persuaded (sometimes with fear) and the ethical can be inspired to report and/or prevent theft, and to remain dedicated to integrity. WE can’t save them all, but we can persuade a sufficient army to deter those who steal because the money is there and available.

Dr. Christian Miller, a professor of philosophy at Wake Forest University has a new book, “The Character Gap: How Good Are We?” The book tackles the testy issue of getting ourselves to behave better in many situations, including those in which someone is being harmed. We know from the long list of Hollywood folks, political figures, sports figures, figures in academia, figures in auto plants, and, well, you name it, in sexual harassment that a standard litany has emerged, “We all knew about it,” or “We joked about it.” There are expressed regrets, “I knew enough to do more than I did.”

Professor Miller offers some insights on the bystander effect of doing nothing. He notes that our tendency to do nothing goes back to grade-school days when we feared being embarrassed for getting involved when others were not doing the same. But, Professor Miller brings in research that concludes if just one person steps up and expresses concern about someone being harmed, others are more likely to join. The one brave soul can make a difference.

He also notes that those who have just listened to a discussion of the ethics and importance of helping others who need it are also more likely to get involved and get the necessary help.

It’s the reminders that trigger better behavior. If we are reminded to help those in need, we do it. Students cheat less if they sign honor codes before taking tests. The training, the codes, the little discussions of ethics, the courage and example of one person, are all forms of nudges that help us be better.

In his book “The Ethics of the Dust,” John Ruskin has a series of essays that consist of a teacher’s discussions with school girls about ethics. In the essay entitled, “Crystal Virtues,” one of the young women asks, “Well, but if people do as well as they can see how, surely that is right for them, isn’t it?”

The reply:

“…right is right and wrong is wrong. It is only the fool who does wrong, and says he, ‘I did it for the best.'”

The student:

“But surely nobody can always know what is right?”

The reply:

“Yes, you always can, for to-day [sic]; and if you do what you see of it to-day [sic], you will see more of it, and more clearly to-morrow [sic].”

We get better at ethics with each choice of right over wrong.

Jeffrey Thomas, in his first year as a special ed teacher in Indianapolis, was taken aback when he saw some of his students wearing only a sweatshirt in freezing Indianapolis weather. Some men see things and ask why. Other men, like Jeffrey Thomas, find a solution. Using his own money, coupons, and Black Friday sales, teacher Thomas purchased fleece fabric and made 650 scarves for the students at Lew Wallace School 107.

His project went through 100 yards of fabric in order to make the 8-inch wide scarves. He had 50 patterns for the students to choose from because he wanted them to feel special.He lined them up on a tale in each class and allowed the students to “shop.”

Mr. Thomas wore out two cutting boards and more scissors than he recalls. He did all the work over a period of several months.

Mr. Thomas is a shining example of a life being lived well in the dedication to others. The Barometer suspects that he has no idea the number of lives beyond the 650 that will be impacted by his selflessness. We are in awe.

For the full story see Arika Herron, “Teacher Makes Scarves For Almost 650 Students,” USA Today, December 22, 2017, p. 5A.

Front page — Wall Street Journal (December 23 2017) — Michael Milken, he of the 1980’s junk bond wave fame and resulting reduced federal prison time for becoming a cooperating witness against his fellow junkers — has proved to have an uncanny ability to make stock donations to charities just prior to steep declines in the value of that stock. For example, in 2003, he donated LeapFrog Enterprises stock to a charity, and its value fell 25% in just one day. Mr. Milken was a company he funded from the beginning. Serendipity? Perhaps, but in September 2013 he donated $27 million in K12 Inc. stock to a charity. Just 26 trading days after this beneficence, K12 stock dropped 38% in one day.

The Wall Street Journal reviewed the Milken donations and concludes that Mr. Milken’s timing was better than 99% of all insiders and shareholders who reported charitable donations of stock for the past 14 years. Mr. Milken’s brother and some associates from the 1980s also made their donations at about the same time as Mr. Milken.

Mr. Milken’s lawyer said that his client and his associates were not officers or directors of the companies whose stock they donated. Just your average investors who “meticulously avoided ever being in a position where they can learn nonpublic information.”

One professor called the donations events of “uncanny timing ability.” No comment.