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NEGOTIATING WITH EXTORTIONIST GOVERNMENT FUNCTIONARIES PART 2: LEGAL, LOGICAL MORAL AND EMOTIONAL BARRIERS

Bruce Horowitz

Last month, in the Introduction to this series of articles, I proposed that negotiation theory and techniques provide a worthwhile alternative to (1) walking away from, (2) paying a bribe to, or (3) getting someone else to pay the bribe to an extortionist government functionary. This second installment in the series will deal with certain real or apparent legal, logical, emotional and moral barriers that have stopped people from entering into negotiations with someone who has just demanded a bribe.

Do you have a legal or moral duty to denounce a bribe demand? Law enforcement officers and other government workers may have such a duty. Lawyers in the USA have such an obligation with regard to illegal acts committed by other lawyers. However, in most countries, a private citizen has no legal obligation to immediately stop a negotiating session and denounce a bribe demand to the criminal or administrative authorities.

They are all around us Even if you have no legal obligation to denounce a bribe demand, the next question is whether you have a moral duty, or ethical obligation to denounce it. This is a personal question for each of us. My own response is that, as long as you do not submit to the bribe demand, then one has such a moral duty if the denunciation would do some immediate good, and as long as it would not threaten the life or physical integrity of oneself, or of one’s family, friends, employees or associates. In my workshops, I sometimes throw on the screen an image from the 1950's movie, Invasion of the Body Snatchers, where the entire "snatched" population of a small town is chasing after the remaining two "unsnatched" human beings. Sometimes, it can actually feel that useless and that threatening to make a formal denunciation in public extortion situations. It is better if a negotiated agreement can be worked out that does not result in any corrupt act being committed by either party.

While we might imagine that extortion by government functionaries occurs only in second and third world countries, in reality it occurs in all countries in situations where the extortionist government functionary (EGF for short) feels sufficiently protected from prosecution and punishment. An EGF's sense of "sufficient protection" may be totally mistaken. On the other hand, it may be due to (1) laws, regulations and government practices that intentionally complicate the enforcement of laws against extortionate acts or, (2) as is normally the case, when power elites and hierarchies that transcend government bureaucracies have sufficient control of law enforcement and the judiciary to successfully hinder capture and/or punishment of EGF's.1

The Old "Walk-Away" Technique In 2006, during lunch at the end of a training course in which I was one of the trainees, I asked my co-students what they do when an EGF demands a bribe. The first person to react was a lawyer, who responded to my question with dignified anger, saying that whenever a government official asks her for a bribe, she will immediately get up, berate the corrupt official, and walk out. Others at the lunch table nodded and murmured in agreement with her response.2 This type of "walk away" response is generally considered to be an appropriate ethical response to a bribery demand. Interestingly enough, this particular luncheon conversation took place at the end of an excellent refresher course on How to Use Principled Negotiation Without Giving In.

It is probably a good thing that we have this visceral reaction to any invitation to participate in acts of corruption. However, this initial "walk away" reaction can stop us from getting what is rightfully our or our client's and from deterring a corrupt act in each individual confrontation/negotiating with EGF’s or other people who are attempting to engage us in acts of corruption.3

How can I even remain in the presence of a corrupt government functionary? The point here, however, is that what we consider to be corrupt, we also normally consider to be filthy, diabolical, unhealthy and contagious on contact. As in: "a rotten apple spoils the barrel;" or "when you lie down with dogs you wake up with fleas." And so on. When you think about it, most references to "public corruption" use medical, religious, military, sanitary, and even scatological images. And almost all of the proposed responses to public corruption refer to "crusades against", "battles with", "campaigns against", "resistance to", "cleaning out of", "inoculation against", "eradication of", "sweeping away", "the fight against" and the extermination, and destruction of corruption. Given those images, it is not likely that you would want to hang out with, or come close enough to negotiate with a corrupt government functionary; unless, of course you have crossed over to the dark side, yourself.

Although we will discuss the statistics in a later article, suffice it to say that there are now trustworthy statistics that show a small but significant percent of private citizens, in supposedly corrupt cultures, are able to resist EGF demands, and still gain the public good or service to which they are entitled.

These images of corruption ignore that high-spirited rubric found throughout Negotiation literature that you can negotiate with anybody.

1A very recent example of this kind of power-elite protection may be the BAE case. See, BBC News. Tuesday, 26 June 2007, 08:44 GMT 09:44 UK http://news.bbc.co.uk/1/hi/business/6182137.stm. "The furore over the SFO's decision to drop a corruption probe into a £6bn arms deal with Saudi Arabia is the latest twist in a 20-year saga."

2Given that our conversation occurred in a place where most people consider corruption to be hierarchical and law enforcement to be lax or counter-productive in extortion/bribery situations, no one at the Negotiation lunch table raised the possibility of complaining to an XGF's supervisor or to the police.

3For those who study public sector corruption, the legal term "corruption", itself, becomes difficult to pin down, and it may includes some activities (like bank fraud, and providing opinions on the outcome of an administrative case, before the case is decided), which many of us would consider to be bad, but do not consider to be "public corruption". On the other hand, the legal definition of "corruption" may exclude such crimes of moral turpitude, such as the slave trade and the use minor children in pornography.

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October 2007