EXOD865 It is a negative commandment for a judge to accept no bribe as Scripture says, And you shall take no bribe [this verse] – – even to render a true judgment. He is duty-bound to return it. And even a bribe of words [flattery] is forbidden. Whoever gives it violates the prohibition, nor shall you put a stumbling-block before the blind (Ya-Yikra 19:14). As for payment for being idled, since it is evident that he is interrupted from his work while he is occupied with a judgment, it is permissible for him to take [a fee] from both litigants equally.

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EXOD861 "You must not take a bribe" [this verse] -- even to entitle the innocent party and to obligate the guilty party. [This injunction applies] even if the two litigants together agree to pay him [for judging]. This is what our Sages, z"l, said (Kesubos 105a): "The legal decisions of one who takes a fee for adjudicating are void." However, it is permissible to compensate him the losses caused as a result of the disruption of his work, provided that the loss is clear, a fixed amount, and known to the public, and that one of the contestants does not reimburse his loss more than the other.

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EXOD862 Can I Accept Gifts from Indigent Clients? Two of the most fundamental principles of ethics are equity and consent: people should be treated equally and fairly, and they should not be coerced. These principles can be violated in flagrant ways, as when a bribe is given to attain special treatment or when deception or pressure are used to evade true consent. But Jewish tradition sensitizes us to more subtle ways in which these principles can be compromised. These are exemplified by the problem that arises when a grateful but impoverished client gives a gift to a helpful public servant. Q: Clients at our social services agency often show their gratitude by giving presents to the social workers. Is it proper to accept? A: The fact that clients are eager to show their gratitude is a wonderful statement about the agency. It shows that people are doing their jobs with ability and dedication, and after all, the work ethic is the starting place for workplace ethics. However these gifts entail two ethical issues that require discussion: equity and expense. THE IMPORTANCE OF EQUITY A very serious problem is that gifts can create favoritism. Our tradition tells us that it is almost impossible to maintain objectivity after one accepts a gift. When the Torah prohibits judges from accepting bribes, it does not say that it is wrong to deliberately pervert justice. That is self-evident. Instead the Torah tells us, "For bribery blinds the sighted, and distorts the words of the righteous" [this verse]. Even a wise and righteous person, who fully intends to remain objective despite the gift, will find that his judgment is distorted. The Talmud educates us to be very sensitive to this consideration. It tells us of important judges who disqualified themselves from judging cases in response to even tiny favors received from one side in the case--favors we might consider routine courtesies. In one case a litigant extended a steadying hand to the judge on a wobbly bridge; in another the petitioner drove a bird away from the judge's head [Ketubbot 105b]. A social worker has to create a working relationship with a client, and exercise a degree of advocacy. He or she can't maintain the same level of detachment that is expected of a judge. But the fundamental psychological insight behind the prohibition of bribes applies in every field. Therefore any gift policy must ensure that all clients are treated equally. Even if we could prevent gifts from creating inequity, we still need to cope with the appearance of favoritism. Some clients will see others giving gifts and will think that they won't get adequate attention unless they do the same. This is a very unfair burden on the agency's impoverished clients. The need for the appearance of equity is graphically illustrated by a story from the Talmud: One of the greatest sages, known by his title Rav, was approached by litigant who was sure that Rav would remember and favor him. In fact, Rav barely recognized the man; yet he disqualified himself as a judge in the case because the litigant's behavior conveyed the impression that the two of them were on friendly terms. And even the replacement judge, Rav Kahana, warned the litigant to stop cultivating the impression of being favored by Rav [Sanhedrin 7b-8a]. DURESS The second possible problem is that accepting gifts make people feel pressured to give them. The problem can be present even the case of an ordinary, friendly gift where the question of equity does not arise. For example, in a social situation, we do not mind that a gift may create a feeling of gratitude and commitment; on the contrary, this feeling is one of the lovely things about gifts. But even in this case there was a problem in accepting a present that is beyond the giver's means. Maimonides writes, "Accepting hospitality from someone who does not have enough for himself verges on stealing. Yet the recipient thinks that he is done nothing wrong, saying, 'did not take only what he offered me?'" [Maimonides, Teshuvah 4:4]. Maimonides awakens us to an important insight: seeming consent can be affected by different kinds of hidden duress. Although the urge to be hospitable is laudable, we should not take excessive advantage of it. We find the same insight regarding charity. Jewish law tells us that charity collectors need to be careful not to put pressure on people to give beyond on their means [Shulhan Arukh, Yoreh Deah 248:7]. WHEN GIVING IS GETTING The considerations we have just discussed dictate any gift policy should ensure that gifts do not affect the judgment of the social workers and do not put a financial burden on clients. Does this mean that gifts should be forbidden altogether? Not necessarily. There is an additional ethical consideration we should keep in mind: the value of expressing gratitude. Sometimes accepting is the greatest form of giving. A blanket prohibition on gifts could prevent the clients from expressing their feelings. This definitely presents a problem. Jewish tradition teaches us that giving is a basic human need. This is most clearly demonstrated by the stipulation in Jewish law that charity recipients, who are entitled to support for their needs, should be given enough so that they are themselves able to give charity from the donations they receive [Shulhan Arukh, Yoreh Deah 248:1]. One good solution is to adopt a strict policy of not accepting any gifts worth more than some nominal value. Two or three dollars is enough to buy an attractive greeting card or an inexpensive novelty trophy, allowing the clients the satisfaction of expressing their gratitude. But this amount is not so large that it would create an impression of inequity or constitute a real hardship even for a poor person.

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EXOD863 Can I Pay a Functionary to "Grease the Wheels" a Bit? Bribery, even the petty kind, terribly undermines sound public administration and public trust. It imposes unfair costs on citizens, degrades the level of service by enabling people to get around a law, and leads to a general atmosphere of cynicism and exploitation. At the same time, a blanket prohibition on giving bribes would make life unlivable in places where this corrupt habit is a way of public life. Let's examine the guidelines Jewish law provides for coping with this descriptive phenomenon. Q: "Business as usual" for our construction firm is like this: We have to pay off City Hall to get a building permit, compensate the police to let us unload building materials, acknowledge the union official in order to get construction workers, and reward the city engineer to certify the building. Finally, we have to pay the tax examiners to let us declare all these payments as a business expense! Is it ethical for me to continue in this business? A: Judaism's view of bribery is clear: "Do not accept bribes, for bribery blinds [even] the wise and distorts [even] the words of the righteous." [this verse] Although the verse refers to a judge, the rationale applies to anyone in a position of public trust. A person may rationalize accepting a bribe and convince himself that his judgment will be unaffected, but the Torah tells us that even a wise and righteous person cannot avoid having his point of view influenced by a bribe. The example of the Jewish sages is to go to the utmost extreme to avoid even the appearance of favoritism. The sage Samuel disqualified himself from judging a litigant who as a simple courtesy gave him a hand as he alighted from the boat; the sage Ameimar disqualified himself from someone who drove away a stray bird who landed on him [Ketubot 105b]. The sage Rav disqualified himself from judging someone who had once hosted him in his home; the replacement judge, Rav Kahana, saw that this litigant continued to make an ostentatious show of his "friendship" with Rav, and threatened to ban the litigant for creating even an impression of favoritism [Sanhedrin 7b]. So accepting a bride can never be tolerated. But what about giving a bribe? Here, the key ethical question is: Does my bribe contribute to wrongdoing? If a public official is fulfilling his public trust and someone offers some money to betray it, this is clearly leading him astray, placing a spiritual "stumbling block before the blind." [Leviticus 19:14] Furthermore, if an official deviates sufficiently from his mandate, the service he performs is effectively unauthorized. This may amount to stealing from the public, which Jewish tradition tells us is the severest kind of theft [Tosefta, Bava Kamma 10:14]. The more complex ethical question arises when an official demands payment to carry out what he is supposed to be doing anyway. This is a perplexing gray area. There is no betrayal of public trust, because instead of inducing him to stumble, we are urging him to do the right thing. Insofar as the demand comes from the official himself, and he has a responsibility to carry out his duty, this situation is closer to extortion than to bribery. Yet even this kind of payment has dangers. First of all, if everybody becomes reconciled to bribes, it will be impossible to rectify the situation. Open bribery undermines society's moral fiber; condoning it shows a lack of moral leadership. Second, it is easy to cross the line into criminal activity. The building inspector who charges a $1,000 to approve a sound building would probably accept $10,000 to approve an unsound one. In turn, the builder may find that it is an attractive bargain to cut corners and just pay off the inspector. The same distinction between paying someone to do something he should not and paying him to do something he should is entrenched in American law. The Foreign Corrupt Practices Act prohibits payments "influencing any action or decision of [a] foreign official in his official capacity." But there is an exception to the prohibition for payments to "expedite or to secure the performance of a routine governmental action," such as obtaining permits. These are sometimes known as "grease payments." Let us apply these insights to your case. Extorted payments for routine things like building permits, getting workers, and obtaining approval are not necessarily unethical if you are fulfilling the legal requirements and not transgressing any laws. City officials are already required to provide these services; any demand for payment clearly constitutes extortion. According to the legal definition we would view these as "greased payments." Even so, you should do your utmost to avoid giving in to this extortion. Experience shows that businesses can successfully resist extortion through the following steps: 1. An inflexible policy not to pay any bribes, which clearly broadcasts the message, "Don't even ask" and tends to forestall demands for graft; 2. Meticulous fulfillment of appropriate by-laws, thus making it difficult for an inspector to find a legal excuse to penalize the firm; 3. A non-judgmental attitude towards corrupt officials. While threatening exposure or legal action may sometimes be necessary, often a non-threatening attitude is more effective in promoting a livable relationship with officials. Functionaries themselves may find the habit of graft demoralizing, and may be positively relieved to encounter a workplace where more enlightened practices prevail. But they will not find it relieving to sense that they are being judged or condemned. Paying off the police is very demoralizing for society and is unquestionably much worse. Police are not mere supervisors of specific regulations; they are guardians of the law. Technically speaking, you face extortion, and these payments can be ethically justified if you scrupulously remove construction materials and waste in strictest accordance with accepted practice. But this should absolutely be a last resort. What about payments to the tax officials? These clearly cross the red line. Your firm is paying them to betray their public trust to supervise your accounts; furthermore, you take advantage of this betrayal to gain an illegal tax break. An additional consideration is that one of the reasons bribes are disallowed as deductions is precisely to make it unprofitable to operate in a corrupt manner. This is meant to introduce some accountability into the other public institutions, such as city government. So the bribes to tax official undermine the law's last bulwark against the cancer of public corruption. The ethical ideal is to stand up to moral challenges, not to evade them. As the popular saying goes, it's easy to be an angel if nobody ruffles your feathers. It is praiseworthy to strive to continue your current line of work, while adopting policies which contribute at least incrementally to upright conduct in your industry. But it is true nonetheless that some kinds of businesses have to be left to scoundrels, and if corruption is deeply entrenched it may be that construction in your city is one of them.

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EXOD864 How Can Public Servants Police Industries and Then Join Them? When public servants such as regulators leave their jobs, they often go to work for the same companies they used to supervise. This "revolving door" can create severe conflicts of interest as the public servant has an interest in impressing and accommodating his future potential employer. Q: Should public employees go to work for the very same businesses they policed while in government service? A: Before we analyze this problem, we should acknowledge that there are many advantages to this "revolving door" between the public and private sectors. COMMUNICATION When there is turnover between the public and private sectors, the communication and understanding among them is increased. It is hard to regulate industry effectively if you do not have inside knowledge of how it really works. Conversely, when business people have a deeper understanding of the regulatory process, they can conform to requirements more effectively. Excessive parochialism in each sector leads to suspicion and competition between them. EDUCATION Each sector absorbs some of the organizational culture of the other. Business organizations focused on the boughttom line tended to have more accountability and discipline within public agencies. Public agencies are more affected by political considerations and attuned to the public interest. INCENTIVE It's not always easy to attract talented people to public service. Recruiting is easier when workers feel that the public sector is not a dead end but, on the contrary, can open doors for them in other fields. A measure of turnover in the governing class is an important characteristic of a functioning democracy. This advantage was known in antiquity. The Mishnah speaks of one member of each family being taken into the king's service for a period of time, and Rashi explains that it was customary to take civil servants in rotation from the various families in the kingdom [Bava Batra 144b]. However, we must acknowledge the problem of conflict of interest. It is difficult to police people effectively if at the same time you are trying to find favor in their eyes as a potential employee. A regulator exercises judgment on behalf of the public. In some ways his responsibilities are similar to that the judge. He certainly must avoid the appearance of being beholden to those he regulates. The Torah states, "Do not take bribes, for bribery blinds the sighted and distorts the words of the righteous" [this verse]. Even a righteous person who intends to judge with integrity will find his judgment distorted by a bribe. Rabbi Yechiel Michal Esptein writes in his Arukh ha-Shulhan [Shulhan Arukh, Hoshen Mishpat 9:1] "One cannot say that the prohibition is directed against taking bribes to distort judgment, for this is already explicitly forbidden in several places.… Rather, it certainly means that taking bribes is forbidden even to vindicate the party in the right and to condemn the offender.… And it is not only a judge who is forgetting to take bribes, but anyone appointed to or occupied with a communal responsibility." Just as brides can distort judgment, so can the expectation of future benefits, and judges and public officials are equally forbidden to take gifts from litigants after a case has already been judged [Glosses of Rosh on Sanhedrin 27b; Pilpula Charitfta commentary]. For this reason our sages warned that judges need to take special care to avoid being obsequious to the powerful [Sotah 41b and Rashi's commentary]. How can we enjoy the benefits of cooperation and openness without having our regulators beholden to powerful interests? One way is education-cultivating a public sector with a culture of independence. Another way is to prevent concentrations of power and knowledge. When a single individual exercises too much judgment and controls access to too much information, the temptation and ability to depart from norms is great. Rather, we should adopt the norms of teamwork and transparency in regulation. The Jewish tradition is to have a panel of judges, rather than a single judge, in order to balance out any excesses or distortions of judgment; as the Mishnah warns, "Only One can judge alone" [Avot 4:8]. One common solution is to have a "cooling-off" period between roles as regulator and regulated. A reasonable period greatly reduces the appearance and reality of a "quid pro quo." This norm is found in Jewish law regarding the laws of usury. While it is forbidden to pay usury even after the loan is repaid, a gift which is given sometime after the loan repayment and doesn't appear connected it is permissible. By the same token, a firm can hire a former regulator after a reasonable interval, on the condition that no mention is made of any benefits rendered the employer while the new hire was in the public service [See Shulhan Arukh Torah Deah 160:6 and Shach commentary. The Pilpula Charifta commentary just cited (on the Rosh Sanhedrin 27b) draws a general parallel between delayed interest and delayed bribes.]. Conflicts of interest can never be avoided entirely, and efforts to completely prevent such conflicts create a problem of excess polarization in public life. But these conflicts are ethical problem, and need to be kept under control through appropriate ethical values and norms of conduct that include patience, teamwork, and transparency.

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EXOD866 The Rabbis taught: "And a bribe you shall not take" -- Not only a monetary bribe, but even a verbal one is forbidden, it not being written: "And profit you shall not take" (Kethuvoth 105a)

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EXOD867 What is "shochad"? "shehu chad" [i.e., "He (the bribed) is one" (with the briber)]. Once he accepts a bribe from him, he becomes predisposed towards him, and he is, virtually, the other himself -- and one is not inclined to fine himself liable (Kethuvoth 105a).

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EXOD868 What is the intent of this? If to teach that a judge should not [take a bribe to] acquit the guilty or convict the innocent, it is already written (Deuteronomy 16:19): "You shall not pervert judgment." It must be, then, that he should not take a bribe even to acquit the innocent and convict the guilty." (Kethuvoth 105a).

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EXOD869 Do not accept bribery. A court judge is forbidden to accept bribery from either litigant, even when he plans to judge the matter only according to the facts, with complete impartiality. The mitzvah distances us from the evil desire to accept bribery, even when we feel that the bribe will not affect us and we intend to remain impartial. The mitzvah guards us from accepting a bribe with the evil intent to favor the one who gave it.

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EXOD870 See [[DEUT848]] Deuteronomy 16:20 justice DORFFDRAG 114-5

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