In the Interest of Conflicts
By Dr. Hal M. Lewis
It is hard to recall a time when the interest in “conflicts of interest” has so dominated the American political landscape. During the campaign season we were inundated with allegations of improprieties from both the Clinton and Trump Foundations. And now on the eve of the inauguration, news feeds brim with talk of divestitures, dissolutions, blind trusts, and LLCs. In the weeks since the election, many learned for the first time about US Code Section 202, which exempts the President and Vice President (along with members of Congress and Federal judges) from Title 18, Section 208 of that same Code, prohibiting executive branch employees from participating in government matters in which they or their immediate family have a financial interest.
For those who love all machinations political, the theater is unprecedented and promises to provide endless hours of entertainment in the months ahead. But for those seeking to be the best leaders we can be – in our businesses, communal organizations, and religious institutions – partisan bloviation and legalistic technicalities obfuscate the larger point. For leaders, conflicts of interest matter.
In Jewish sources[1], the relation between leaders and followers is not one-way or top-down. On the contrary, leadership is an exchange, premised on a reciprocal relationship. Leaders both give to and get from their followers. They are much more than holders of office; they are servants of the community (whether that community is a corporation, a government, or a philanthropic organization). Reciprocity between leaders and followers is precisely what the great philosopher and legalist, Moses Maimonides, had in mind when he taught that a community honors itself when it honors its leaders. It follows, therefore, that any leader who dishonors herself (say by involvement in a conflict of interest) dishonors her constituents as well.
Underscoring this point, the nineteenth and twentieth-century rabbinic authority known as the Hazon Ish, wrote that when a community feels that its sages have a conflict of interest, “the whole generation is orphaned … For even if one were to recognize the greatness of … that sage no one would commit himself to abide by the sage’s decision because he appears to be in conflict of interest…”
Woven into the biblical worldview is an understanding that leaders are not above the law. There are no “authority carveouts” for those who hold high office. All leaders, even the CEO, indeed even the highest-ranking official of the land, are duty-bound to follow the law, without exemption or immunity. Strikingly, according to the Palestinian Talmud, even God is required to follow His own law.
While Jewish legal writings suggest that all individuals should avoid conflicts of interest, a special standard is articulated for those who lead. Leaders are dugmaot – role models – whose moral rectitude must exceed that of the general public. Ironically, this is true, according to the sages, because those in the public eye are more likely to be viewed with suspicion and skepticism, owing to their increased access to power, and the greater likelihood that that power will be abused. In this context, therefore, it is essential that leaders avoid such suspicion, by not only removing themselves from any conflicts of interest, but by going even further, and avoiding the very appearance of such conflicts.
This is one of the most important lessons new(ly elected) leaders must learn. Simply stated, failure to grasp the challenges of living in a fishbowl can destroy an otherwise promising leadership career. Even if the weight of public attention was never a factor in prior positions, when one becomes a leader with a public persona, the stakes change. Maimonides spoke directly to this issue in explaining the harsh punishment meted out to Moses at the waters of Meribah, resulting in the denial of his entrance to the Promised Land. “God was strict with him (Moses),” wrote the Rambam, “because the people all modeled their actions upon his and studied his every word … Everything Moses said and did was scrutinized and emulated by them.” When leaders understand that their actions are always examined and frequently mirrored, the urgent need to extricate oneself from conflicts of interest becomes a preeminent priority.
Invoking an ancient lexicon that can easily be rendered into a contemporary patois, rabbinic writings are filled with powerful examples of leaders who take concrete steps to remove themselves from situations of conflict. Kings and priests cannot occupy a seat on the High Court because of the potential, however remote, that their rulings will unfairly advantage their positions. Charity collectors and other officials must commit themselves to stricter standards of personal behavior than the general populace in order to avoid even the suggestion of conflict. (Of particular interest for those concerned about the corrosive impact of nepotism is the fact that supervisors of the charity collective could not be related to one another.) In addition, the High Priest could not wear garments with hems or pockets, lest anyone think he was secreting valuables in the course of doing his work. And even Moses found it necessary to render an expense accounting of the Tabernacle’s construction costs, so no one would be inclined to think he was engaged in untoward behavior of any sort.
Several overarching principles inform the behavior that should guide a leader’s actions when it comes to these matters. To begin with, the Talmud refers frequently to one who is nogea b’davar, someone with a vested interest in a particular issue who, by definition, can no longer be objective. While nuanced in its applications, the concept itself is intuitive. Simply stated, if an individual of any station, and certainly a public leader, is encumbered by past dealings, however legitimate, that are likely to color his judgment going forward, he must exempt and absent himself from any related entanglements. This must be done precisely because of an overarching assumption that one who has a conflict may seek to advance his own self-interest at the expense of the truth. This is not a matter of unfairly indicting anyone without sufficient evidence. It is a preventative measure designed to protect both the leader and those she serves.
A related concept is extrapolated from the Torah’s teaching in Numbers that, “You shall be guiltless (v’hiyitem n’keyim) before God and Israel.” Biblical leaders derive their authorization from a combination of divine and popular imprimatur. One without the other is insufficient. It is critical, therefore, that a leader maintains the approbation of both God and the people, by doing, in the words of Deuteronomy, that which is “right and proper” (hayashar vehatov). Jeopardizing either divine or human sanction by withholding information about potential conflicts of interest, endangers a leader’s efficacy. It is for this reason, for example, that the High Priest, as trusted an individual as ever there was, was, nevertheless, searched upon entering and leaving the Temple treasury to assure the people that their leader was beyond reproach.
In addition, later Jewish sources, inspired by the book of Leviticus, insisted that those who withhold, mislead or misrepresent their personal interests or motives are engaging in the functional equivalent of placing a stumbling block in front of the blind. This idea, known as lifnei iver, requires a leader to come clean about the possibility of ulterior motives, financial entanglements, sources of undue influence and related matters. A leader who fails to release information – tax returns, donor lists, or the names of influence-wielding hotel guests – is susceptible to second-guessing, innuendo or insinuation. When that happens, she is wounded and blemished from the get-go. Said leader’s ability to serve his people is unnecessarily and indelibly impeded.
Based on a word play that appears in the Talmud, post-biblical authorities went one step further, and analogized conflicts of interest to the taking of bribes. The Hebrew word for bribe – shochad – is explained as she-hu-chad – “that he is one.” In other words, the one who gives a bribe and the one who accepts it are indistinguishable; they become one and the same. Thus, a business leader or his family who profits from payoffs, kickbacks or other financial inducements cannot be trusted. Her judgment is permanently scarred; his ability to be impartial, forever compromised. So too, a political leader mired in conflicts of interest will never escape the perennial cloud of suspicion hanging over votes and vetoes, initiatives and political maneuverings.
To underscore the import of community leaders maintaining impeccable ethical standards, medieval Jewish legalists took the dramatic step of equating them to judges, who are commanded to maintain the most unblemished standards of all. The sixteenth-century Polish rabbi, Moses Isserles, instructed that, “the good men of the community who are appointed to deal with public and private matters are like judges and it is forbidden to include among them a person who is disqualified to act as a judge because of the wrong he has done.” And since, according to the Code of Jewish Law, “a judge may not deal with any matter in which he has a beneficial interest,” business, political, and communal leaders are under a special obligation to avoid any such potentiality.
Despite a widespread tendency to focus on conflicts of interest involving corporate or political leaders, social sector leaders are equally obligated to hold themselves accountable to a superior ethical standard. The eleemosynary environment, in which leaders are expected to raise large sums of money from an often demanding and self-interested donor base, is fecund with possibilities for potential conflicts. Precisely for this reason, a nonprofit organizational leader, whether volunteer or professional, must embody a commitment to squeaky-clean transparency, avoiding even the most remote appearance of impropriety. This is as true for fundraisers as it is for clergy. So too, educators and programming professionals, who often receive subtle but unmistakable messages to compromise ethical standards for the sake of institutional advancement, are challenged to stand resolute in the face of potential conflicts of interest.
With all this talk of higher standards for leaders, one might be forgiven for believing that Jewish sources apotheosized public officials. But that is not the case. “A community leader (parnas) is not to be appointed,” according to the Talmud, “unless he carries on his back a basket of reptiles [something reprehensible in his background], so that if he becomes arrogant he can be told, ‘Turn around!’” In contrast to the popular tendency to demand perfection from our leaders, this view embraces the notion that leaders are inherently flawed and necessarily imperfect. It is essential, therefore, that they go to extra lengths to acknowledge their liabilities and to prevent those deficiencies from dooming their leadership. The French Talmudist, Menachem Meiri, offered his own insightful exegesis, explaining the relevance of this text to the appointment of communal leaders.
It is proper to appoint as a parnas over the community only a person who is … humble, modest and tolerant… Care should, however, be taken not to appoint a generally over-aggressive person who might think that … he is more worthy than others … Instead, a person should be chosen who is aware that there are other more worthy candidates… That is to say, although a fit person in himself, he may become haughty and full of pride in his dealing with the community … and in that event he can be told: “Turn and judge yourself, look behind you.”
It is important that boards, electorates, and the polity-at-large not construct unrealistic expectations for our leaders. All successful individuals are likely to be encumbered by their own “basket of reptiles.” But we must never lose sight of the fact that character matters in leadership; it is the cornerstone of trustworthiness. Given the fishbowl phenomenon and the natural tendency to scrutinize those in positions of authority, leaders must hold themselves to the highest moral standard. Acknowledging our current conflicts and working assiduously to distance ourselves from them, extricating ourselves from potentially compromising situations as they emerge, and going above and beyond what the letter of the law requires in order to mitigate even the appearance of untoward behavior, lie at the core of what it means to be an effective leader.
[1] The author is pleased to provide interested readers with a detailed list of sources for every citation referenced in this article.
Dr. Hal M. Lewis is the President and Chief Executive Officer of Spertus Institute for Jewish Learning and Leadership. A recognized expert on Jewish leadership, he has published widely in the scholarly and popular press. His books include Models and Meanings in the History of Jewish Leadership and From Sanctuary to Boardroom: A Jewish Approach to Leadership.