Chris Christie's choice: duty or politics

Ethan J. Leib in The Los Angeles Times, June 05, 2013

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In the case of filling the Senate seat of the late Frank Lautenberg, the focus should be on doing the right thing morally.

By Ethan J. Leib and Michael Serota

In contemplating the correct response to filling the Senate seat left open by the death of New Jersey Democrat Frank Lautenberg this week, Republican Gov. Chris Christie has to make a moral choice, not just a political one.

Like a CEO of a corporation, a governor is chief executive who must put the interests of his shareholders (the people of New Jersey) and his organization (the state) above his self-interest. In the corporate world, this is known as the fiduciary duty of loyalty — "fiduciary" comes from a Latin word meaning "to trust"; the word "faith" derives from it. Public representatives such as Christie have much the same duty.

Which is why the discussion about Christie's forthcoming decision has been so disheartening. Most, if not all, of the news has focused on the costs and benefits that the governor's decisions about a special election — which Christie opted for Tuesday — and the selection of a Democratic or Republican replacement in the interim would have for Christie and his national political career. This highly politicized analysis overlooks, sadly, the ethical dimension that ought to attach to serving as a political representative.

Just as we all expect our doctors to prescribe medical tests or procedures based on our health rather than on their monetary interests, and hope that our financial advisors will invest our money to maximize our retirement savings rather than theirs, Christie ought similarly to be guided by the best interests of his constituents rather than his own political ambitions.

Wishful thinking in an age of blood-sport politics? Maybe. But it was Christie, after all, who taught us something about working in the interests of his state during Superstorm Sandy. And it was no less than the framers of our Constitution, revered by Democrats and Republicans alike, who drafted our founding document with the understanding that public office would be treated by our representatives as a public trust.

Inheriting the idea of a "public fiduciary" from Cicero and John Locke, America's framers understood the essential ethical dimension to political office in the same terms that we understand other fiduciary relationships — those trusting relationships in which one person exercises discretion and control over the legal and practical interests of another, making decisions for them and standing in their place. The founders believed that political representatives would owe to their constituents special duties not to self-deal or use power for private or personal gain.

The beneficiaries of a fiduciary relationship in the private context can bring a lawsuit for a fiduciary's self-interested behavior. Such a legal remedy does not exist in the public political sphere. Even so, the moral force of the doctrine remains. Christie is like any CEO with fiduciary obligations to the "corporation" — in this case, the body politic.

So what does this lens add? Having announced a special election in October for Lautenberg's Senate seat — an expensive decision we hope was made in pursuit of strengthening New Jersey's democracy and not out of political convenience — Christie must still announce an interim appointment. In making this weighty selection, Christie, as a public fiduciary, must avoid considering his future political ambitions — or even the ambitions of the national Republican Party.

Instead, he should remember the oath he took to be faithful to the people of New Jersey and to the constitutions of the state and the nation. That duty requires that his deliberation about Lautenberg's replacement take place in public, with Republicans and Democrats alike, and that he needs to remain open to persuasion about what really promotes the public interest, not his private interests.

Christie has exhibited a capacity to act above the fray of partisan politics and outside the strictures of naked self-interest. The governor can again hold himself to the public ethics of loyalty, demanded by the office and public trust that he holds.

Ethan J. Leib is a professor of law at Fordham Law School; Michael Serota is a criminal law attorney. David L. Ponet, a parliamentary specialist for UNICEF, contributed to this Op-Ed.