Not Enforcing Ethics

On March 20, 2009, SAA President Frank Boles issued a statement, “Enforcing Ethics,” and in straightforward language he closed the case about how we, members of this association, are to view and use the ethics code. Without any additional inquiry, Boles also indicated how SAA views the NARA situation regarding Anthony Clark, referring, only at the beginning of his statement, about the “alleged ethical shortcomings of some of our colleagues in Washington” and, quite candidly remarking, that it would not “formally investigate the situation” because of a variety of “policy decisions” emanating from “several assumptions.” I congratulate Frank Boles, and the SAA leadership, for clarifying the matter for all of us about both the ethics code and its relationship to the National Archives. He also kindly offers a suggestion about “how the Code can be used to good purpose.”

There is no reason to reiterate in much detail this statement, since anyone can read it for itself and decide what it all means; indeed, that is the point after all, that the code is aspirational and to be used how any archivist or archival institution sees fit to do with it. Boles’ reporting on the CEPC’s support of only an aspirational ethics code “but one that more clearly reflects recent scholarship and professional discourse regarding archival ethics and the profession’s goals and identity,” confirms that there is little to be gained for pushing SAA on its perspective about ethics. However, it is worth commenting on the assumptions, stated and unstated, behind the statement. Indeed, I am left wondering about the connection between the issue of the ethics code with that of just how a professional archival association ought to respond to the kind of complaints publicly made about the nation’s premier archival institution. Do the procedural and legal concerns about the ethics code really relate to the specifics of this case? Or, as I have mused about in a couple of past comments, did I make an error even invoking the ethics code? Are there approaches SAA could have used to address concerns about NARA or, for that matter, charges made by a researcher about NARA?

My intention is not to provide a detailed response to or critique of the four assumptions raised by Boles, but they are worth some reflection. Actually, as will be obvious by my comments below, I don’t understand how the ethics code bars SAA from examining or questioning the conduct of any federal agency vis-à-vis the administration of its records, especially when the agency happens to be the National Archives. In fact, the commentary about the present Council being restricted in how it uses the ethics code by the actions of previous Councils seems somewhat strained since Council has the ability to change any of its decisions (except perhaps those needing to be brought for membership actions, such as changes in bylaws). Moreover, any Council could certainly decide that the allegations and evidence made about the fundamental mission and activities of the National Archives are serious enough to warrant a public statement about them, whether or not these have anything to do with ethical issues. In other words, is every matter Council might have set before going to be derailed by the fact that nearly everything it does – approving professional standards or guidelines, for example – is aspirational (since anybody can be a member, SAA is not a certification or accreditation body, and so forth)? Does this mean that about all SAA leadership really can do is set out housekeeping rules for its activities such as publishing, running conferences, and offering workshops?

Boles cites the American Library Association and the American Historical Association as other associations that lack “an enforcement mechanism.” However, there are omissions in this assessment. The historical associations changed their mechanism because they were over-burdened with complaints, something SAA has never faced or probably would face. Even as these associations abandoned this process, some who were involved protested the decision and believe that this has been a mistake for the profession’s credibility; see Peter Charles Hoffer (a former member of the AHA professional division), Past Imperfect (New York: Public Affairs, 2004) as one example. Boles quotes from an AHA statement that what it did was not workable, but one might still wonder whether AHA’s decision is good for the profession or not. We also need to recognize that AHA made its decision after an effort to hear complaints of fifteen years duration, whereas SAA has not made any such effort. SAA has never pushed the use of its ethics code, except if you count efforts a few decades ago to market an earlier version of the code suitable for framing and display in one’s office.

I have not done an analysis of AHA’s past experiences with its professional conduct committee other than to read commentaries about it. Of course, the historical profession has been quite facile in how it convenes scholarly conferences and sessions to feature debate about what are seen to be breaches in professional and scholarly inquiry and discourse (such as the January 2002 issue of the William and Mary Quarterly reporting the results of a conference on charges of sloppy and deliberately inaccurate work by Michael Bellesiles regarding his book, Arming America: The Origins of a National Gun Culture). However when we consider what AHA has been up to, we ought to realize that we could be comparing apples and oranges when we put its activities alongside that of SAA. How can we compare the complaints of a researcher about his treatment by NARA with that of complaints of plagiarism and other issues of scholarly research that will be given their day in the normal process of reviews and conferences? Certainly, as has been suggested to me, we can prepare essays for publication or papers for conference presentation about Anthony Clark’s case, but these won’t be very timely in assisting this researcher or even in providing a fair hearing if NARA chooses not to participate (which NARA is prone not to do). Why SAA cannot function as a broker to bring these two parties together, privately or publicly, really is a mystery to me. However, a reading of the evidence being presented by Clark himself on his blog suggests that, instead, some of the SAA leadership seems to have been inclined to help NARA handle the Clark complaints, suggesting that maybe there are other reasons for SAA not wanting to be involved in this case that extend beyond the utility of an aspirational code of ethics (my interpretation not Clark's). As I have commented on in earlier posts, there is a culture of a partnership between SAA and NARA that works against SAA being able to speak up when NARA stumbles (and this is at least a twenty year old problem). So, we need to look for other watchdogs to scrutinize this federal agency.

As for the ALA, it may have an aspirational code, but no one would ever suggest that this organization is bashful about speaking up about issues of misconduct. Frank Boles is correct that the ALA is not in the enforcement business, when ALA states this on its web site: “The ALA does not at this time provide mediation, financial aid, or legal aid in response to workplace disputes. Your employer has an array of sanctions that may or may not be imposed on you, including but not limited to: reassignment, passing you up for promotion, passing you up for raises, denying you tenure, passing you up for the best assignments, and ultimately dismissal. If you decide to speak out on a matter involving professional policy, it will be a matter between you and your employer.” Yet, ALA is working to develop its ethics code, stating, “The Council Committee on Professional Ethics shall augment the Code of Ethics by explanatory interpretations and additional statements, prepared by this committee or elicited from other units of ALA.” This seems in stark contrast to SAA’s recent activities in both the area of professional ethics or advocacy. Maybe I will be proved wrong by future activities undertaken by the SAA; I hope so. However, at the moment, before this statement by SAA’s president, the association offered no guidance whatsoever about the ethics code. Moreover, it has been moving in the opposite direction, tearing away at explanations and interpretations, gutting the code from what it once had been in 1992 (then one of the best professional codes in terms of details, although it was true even then that the Society was wary of supporting its use).

When it comes to the mechanics of enforcement, Frank Boles seems to employ commonsense, describing how difficult it would be to develop “rules that are fair and well understood.” Actually, I agree. What I don’t understand, however, is why SAA cannot examine evidence offered up about professional misconduct or publicly speak up when there seems to be misconduct on the part of archival programs or their leaders or staff (when this misconduct has to do with fundamental archival practice and principles). Why is this different than speaking up when government agencies restrict access to records, illegally destroy records, or seem to violate laws and public policies? SAA does not need to launch an investigation when it does this. Given the amount of evidence being presented by a private citizen and researcher, citing and reproducing records of NARA itself, it seems strange that SAA cannot call into question NARA’s conduct or, at the least, suggest that NARA correct its handling of these requests for access to it records. (It does not have to mention individuals or SAA members working at NARA, although given the small number of the latter that seems both unlikely and certainly unnecessary).

SAA does not have to convene a court of inquiry itself. However, there is absolutely nothing to prevent it from calling on Congress or the President to investigate such serious charges, and I believe the amount of evidence presented certainly merits such action. As I have written elsewhere, there is something amiss with the culture of the relationship between SAA and NARA that prevents SAA from being critical of NARA when there seems to be a need to do so. And this is a problem, given NARA’s prominent role in government information policy. When I was on SAA Council in the late 1980s I proposed that Council pass a motion that no NARA staff member could hold an elected position within SAA, indicating that there were problems of conflict of interest even then (mirroring the kind of problem Anthony Clark sees in NARA staff answering FOIA requests even when they concern records they created or that concern them). By the way, the motion was never taken seriously. We have had a legacy of conflicts of interests and lack of accountability between SAA and NARA that go back to the origins of both in the mid-1930s. And, if you don’t think there is any responsibility of SAA for NARA because one is a professional association and the other a federal agency, then we need to give up on any kind of advocacy about government activities in archives and records management and recommend that all citizen interest groups be shut down as well.

When Frank Boles turns his attention to the legal issues, he connects to the primary reason we have been hearing about the Society’s concern with the ethics code, stating “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.” I am not a lawyer, and I have never played one on television, but I shake my head at this kind of concern. In America, litigation is as much recreation as anything. Everyone sues each other and organizations for almost anything. It is clear that SAA’s concern is legitimate, but how can you function or do anything if the fear of litigation is a determining factor? What is to prevent a group of SAA members from suing the Society because it has not developed a code that could be enforced or used (and I am not suggesting this at all)? Couldn’t the Society be sued for comments made by a workshop instructor, a conference speaker, or because of an author’s statements in an American Archivist article? A half-dozen years ago some archivists expressed the opinion that SAA could be liable for its use of a political poster on the AA cover, an illustration discussed in an essay about the management of political poster collections. So, it seems to me that SAA is always facing the possibility of litigation because of the society we live in, apart from whatever it does or does not do.

President Boles does suggest commend what ALA has done, encouraging 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.” To do this, of course, you need a code with some greater specificity than what we have now. And, if this is the case, why does SAA not inquire about whether NARA has done this itself? There is an ethics resources site on the NARA website, but it addresses general federal issues and guidelines and has no reference to general professional ethics codes such as promulgated by SAA. Perhaps, there is simply no critical mass of SAA members within NARA leadership who have advocated anything like this, and this suggests another reason, perhaps, why SAA should be a little bolder in asserting itself when it comes to NARA activities (even if it does it in a way that does not cite individuals or invoke the ethics code). What are the bounds for when SAA will question NARA activity?

If the above commentary seems muddled, it is because I am struggling, as well, about just what the ethics code means and how it should be used. One conclusion I have reached is that the Society of American Archivists value is in its role as a membership organization providing a range of services that probably cannot include more serious issues of professional standards and guidelines. What it offers, and these are useful, are conferences, workshops, and publications. Just as in my memberships in AAA or AARP, as long as I am getting good value for my membership dues with discounts in all these offered with my membership then there is no reason not to be a member. When Frank Boles refers to the ethics code as a “document of persuasion that is to be studied, discussed, and improved,” it maybe that this study and discussion has to occur just as much outside SAA as within it. It is just as much the case that this persuasion can be more effective unhooked from the drag of SAA policies, politics, and processes. I know I can get help from AAA when the wheels on my car fall off, but I am not sure I can get help from SAA when the wheels of archival principles and practices blow out in obvious ways.

Where does any of this leave us in terms of Anthony Clark and NARA? If not SAA, who will seek to hold NARA accountable? It may be that we are caught in another conundrum when we seek accountability by SAA because of other disconnects between the Society and NARA. Frank Boles, at the end of his statement, muses, “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.” And, maybe, there’s the rub. If there are virtually no SAA members in NARA, then the ethics code really isn’t applicable in that institution. On the other hand, it seems that you could argue that SAA ought to at least work on that level and suggest to NARA that it ought to encourage its professional staff to be SAA members and endorse the SAA ethics code as an additional resource in guiding ethical conduct. I am sure, however, that there may be a dozen technical and other reasons why this is unlikely to occur.

But when I come to the end in my own statement, I worry about the one researcher, Anthony Clark, who has chosen to speak out and has ample documentation about problems with NARA providing access to government records that any citizen ought to expect to be able to examine. I still struggle with what to say to my students about what the implications of the Clark case are for their future careers. I am comfortable with saying to these students that they adopt a consumer mentality and stick with SAA as long as they get services of use to them for the amount they pay in dues. I am comfortable in referring them to other investigations and discussions about archival ethics that will be going on outside of SAA. I am comfortable in raising these difficult and contentious archival ethics concerns in my course on this topic. It is more difficult to know what to say to Anthony Clark, other than I offer apologies on behalf of my profession in our inability to provide much in the way of assistance to him about what are clearly serious problems in archival practice and general interpretations about access to government records (and to conclude that while the first may be the problematic ethical issue, the latter is more about archival policy and procedure, something that SAA ought to be able to deal with). Unfortunately, Mr. Clark, as an ordinary citizen, will need to seek an airing of his concerns and some form of justice elsewhere; other than as individuals, we are unable to assist him. Something seems wrong here.