Upgrading Your Code of Ethics and Disciplinary Procedures: Practical and Legal Considerations
Originally published in the 1st quarter issue of ICE Digest, the official quarterly e-newsletter of the Institute for Credentialing Excellence (ICE).
A key aspect of any professional certification program is a code of ethics and the code's accompanying procedures. A code of ethics, sometimes referred to as a code of professional conduct, is a critical feature of a certification program both for the promotion of the safety of the public and the integrity of the program's credential. For those programs seeking or maintaining the coveted National Commission for Certifying Agencies (NCCA) accreditation, a mark of quality for certification programs, disciplinary policies and procedures are required. (See the Responsibilities to Stakeholders section of the NCCA Standards, Standard 6.)
Organizational guiding documents, such as a code of ethics together with accompanying procedures, should be reviewed periodically and updated appropriately as a matter of best practice. If your certification body is about to embark on a periodic review of these important documents, what issues should you consider?
A constructive beginning to the process could include a review by those not intimately familiar with the documents or even familiar with the certification program itself. Several pairs of “fresh eyes” can be a great start, along with legal counsel. It's important to ask “Is the code understandable and accessible?” If the code is so complicated that only lawyers can follow the required steps, it has less value. It is critical that volunteers to the certification body, including those charged with enforcing the code, understand its key features.
Also, a code of ethics is meant not just for the certificant community, but for the public as well. If, throughout the years, an organization has simply tweaked its existing code, it may even be time for a complete revision. Over time, organizational policies, key terms or acronyms, or even the profession itself may have changed significantly. If so, a full rewrite may be in order.
If, after a careful review, a completely fresh start is not necessary, another important consideration is “Can the document(s) be streamlined?” As documents are revised, editing and periodic “fixes” can result in lengthy, unclear or even internally inconsistent codes or procedures. As you are evaluating these documents, continually ask the following questions:
- Is this necessary?
- Is this clear?
- How does this section relate to the whole?
Once your organization has crafted a new code -- or updated its existing one -- it is advisable to disseminate it to stakeholders for a period of public comment. Not only is this a best practice, but such widespread distribution will undoubtedly garner good will, increase organizational credibility and, as a result of constructive feedback, likely lead to a better final product.
Turning to the legal aspects of such updates, it is important that the focus of a code be on the conduct of the certificant. While codes of ethics are important from both the public and business perspectives, ethical discipline -- including public or private reprimand, suspension or revocation of the credential -- by a certification body could give rise to a variety of legal claims, including antitrust, defamation or tortious interference, so it is imperative that a code and the accompanying procedures be balanced, carefully crafted and legally defensible.
What elements are required for legal defensibility? First, confidentiality is key. Procedures should make clear that confidentiality is required as part of the process. Knowledge of a pending matter should be strictly on a need-to-know basis at both the volunteer and staff levels, and any discussion held should be limited strictly to the facts of the case and not extraneous or irrelevant matters.
Secondly, procedures should contemplate the possibility, and the appropriate management, of actual or potential conflicts of interest. By way of example, a member of the organization's ethics committee should not be involved in a disciplinary matter involving one of his or her colleagues or staff. It is important that procedures be in place for the disclosure of actual, or potential, conflicts of interest.
Procedural Due Process
Finally, due process is probably the key legal consideration for disciplinary procedures. Substantive due process (meaning fairness in the basic requirements for certification) is important, but the focus in disciplinary procedures is on procedural due process. Procedural due process is grounded in “common law fairness” and requires that those whose conduct is challenged in a disciplinary matter receive notice of actions or requirements and have the opportunity to be heard, and also that the decision-making process is fair and impartial. In this regard, an important feature of due process is avoiding duplication of roles that might lead to conflicts or bias in the determination. In other words, the investigatory and adjudicatory roles should be separate and distinct so that there is no overlap of “deciders,” and that the same people who make an initial determination also do not hear an appeal.
One common misconception related to the legal defensibility of ethical procedures is that due process requires a “live” or in-person hearing. This is not the case. Rather, the due process requirement of the right to be “heard” may usually be satisfied by a paper-based proceeding.
In a related vein, a legally defensible set of ethics procedures also requires consistency in implementation. It is critical to follow ethics procedures to the letter. This will ensure that all parties to ethical proceedings will be treated similarly and fairly.
To summarize, legally defensible ethics procedures require confidentiality, appropriate management of actual or potential conflicts of interest, procedural due process and consistency in implementation. Observing these practical and legal considerations while upgrading and implementing your organization's code of ethics code and associated procedures will go a long way toward ensuring your ethics program is fair, balanced and legally defensible.
Co-Author: Sara Blair Lake, JD, CAE