The Bad Character of “Good Character”
The Bad Character of “Good Character”
Published in the Maryland Daily Record June 9, 2014
To engage in many occupations, you will need a government-issued license. To win or renew your license, some statute will almost certainly require you to show “good character,” “good moral character,” “good character and reputation,” or something similar. And if you have run into trouble in making that showing, there’s a decent chance your path has crossed with mine. My legal practice has often required me to engage with licensing authorities over an applicant’s “character.”
I put “character” in quotes because these engagements have convinced me it is an ineffable abstraction. Science has uncovered no good character gene, no good character organ of the body. You cannot measure it. And no two people are likely to agree about another person’s “character.” As people use the phrase in conversation, they seem to be talking about some kind of essence of a person’s psyche, which they assess in the most subjective fashion imaginable. Regulators, being neither priests nor psychologists nor philosophers, don’t usually try. Instead, they focus on what the applicant has done in the past. They try to extrapolate future behavior from past behavior. The “character” label becomes just that: a label. The focus is behavior.
But any honest and insightful regulator would have to acknowledge never having known a person who has behaved consistently well his or her whole life. As St. Paul trenchantly put it, “What I would, that do I not; but what I hate, that do I.” And this was a saint talking, and he was using present tense. A saint whose deeds were imperfect even as he spoke, he typified us all.
We are all mixed bags.
The regulator, however, cannot make a mixed choice. The regulator must assign the label of good or bad character to each applicant’s behavior. In practice, this means ferreting out the names of the applicants who’ve been caught. Has the applicant been apprehended in the act of losing his or her temper, succumbing to a temptation to be less than honest, hitting the bottle, being convicted of a crime? In other words, has the applicant been sanctioned for human imperfection? If the answer is yes, the applicant is assigned the “bad character” label. The survivors of this round of elimination are said to exhibit “good character.”
The Appearance of Public Safety
Does this really protect the public from misbehaving licensees? Yes, to those who believe that only the worst are caught. (And yes, it was really the Tooth Fairy who left those quarters under their pillow.)
Say this for a focus on who’s been caught: it works as a way of narrowing the field. It screens out some applicants, but not too many. It creates the impression that regulators have protected the public, but leaves enough licensees to fill our professions and occupations.
The Rehabilitation Runaround
For those who are screened out, however, the unfairness is just beginning. The next question comes straight out of Alice’s Restaurant: “Kid, have you rehabilitated yourself?” But rehabilitation, it turns out, is almost impossible to show. Applicants seldom achieve much by simply claiming rehabilitation, despite their being the people best acquainted with their own mental state.
Typically, regulators don’t credit a claim like that unless it is coupled with taking ownership of past misdeeds and expressing remorse over having committed them. However, in my experience all humans with blots on their records, including license applicants, are possessed of an unfortunate reluctance to admit fault, even to themselves. We all tend to believe, along with the married murderesses in the musical Chicago, that “If you’d have been there, if you’d have seen it, I betcha you would have done the same.” Applicants who strike me as committed to playing by their prospective profession’s rulebook in future may still be unable to muster much contrition or insight when confronting things they were found to have done wrong in the past. Why an absence of insight is thought a predictor of future bad behavior is a mystery, especially when one considers that psychopaths, the kind of people one might expect to become the most transgressive professionals, have plenty of insight – at least into the regulators’ thought processes. They naturally tend to excel at saying what regulators want to hear. So the contrition test just lets the psychopaths back in and does little else.
There’s another reason, even less fair, why the applicant may not come up with the insightful contrition the regulators are listening for. The applicant may be correctly claiming innocence of whatever misbehavior he or she was sanctioned for. That does happen; talk to the Innocence Project people if you don’t believe me. The applicant who maintains innocence of some alleged past misdeed faces a Hobson’s choice: falsely admit guilt or be deemed unrehabilitated. A collateral attack on some previous conviction or administrative finding of misbehavior is never permitted, even when such an attack would be the only path to the truth. God forbid, after all, that we should sacrifice collateral estoppel just to get to the truth!
In any case, it is always the applicant’s burden to prove “good character,” which amounts to proving a negative, i.e. that he or she will never do anything bad again. Negatives are hard to prove. And negatives about the future are 100% unprovable. So strictly speaking, there is no way to carry this burden successfully. And yet applicants are required to carry it every day.
Assume, then, that the burden isn’t carried, and the applicant is rejected and of course stigmatized with the “bad character” label. Things will tend to snowball after that. The rule is: get yourself turned down for a license in one state because of your character, prepare not even to be considered in any other state, and to lose your license wherever you already have one. Lose or be turned down for a license on character grounds, prepare for possible debarment and being unable to work for any employer that receives federal funds. And forget those security clearances while you’re at it. Oh, and forget about changing careers either; that “good character” requirement, and your history with it, will follow you if you seek a license in any other field.
Culling the Herd
Tragically, “good character” is often used as a way of eliminating licensees who haven’t actually broken any rules related to their profession but just make regulators uneasy. In practice, it’s a handy way of culling injured and hurting professionals from the herd. The protestations of people with mental illness, substance abuse problems and the like that they could still function professionally are ignored. Rather than figure out how these unfortunates could be reasonably accommodated without making them show that they have miraculously shed their problems – and to my observation most of them could practice “as is” without unduly endangering the public – licensing authorities would rather just impose the professional death sentence and have done with it. Sometimes the regulators are covering their tails (they don’t want to be the one who licensed a bad apple) and sometimes they are just being sanctimonious and short-sighted.
Either way, the regulators’ associating themselves with such a process shows – um, bad character. But don’t look for any of them to revoke their own licenses for that.
. In Maryland, where I practice, you need “good character” to practice law (Md. Code Ann., Bus. Occ. & Prof. § 10-207), work as a security guard (Md. Code Ann., Bus. Occ. & Prof. § 19-302), or as a private detective (Md. Code Ann., Bus. Occ. & Prof. § 13-302), private home detention monitor (Md. Code Ann., Bus. Occ. & Prof. § 20-302), tax preparer (Md. Code Ann., Bus. Occ. & Prof. § 21-302), or security systems installer (Md. Code Ann., Bus. Occ. & Prof. § 18-3A-02), to own a real estate appraisal management company (Md. Code Ann., Bus. Occ. & Prof. § 16-5B-05), to serve as a real estate broker (Md. Code Ann., Bus. Occ. & Prof. § 17-305) or an architect (Md. Code Ann., Bus. Occ. & Prof. § 3-303). And those are just 9 of the 40 or so professions listed in one article of the Code. There are such requirements in other articles.
. Romans 7:15.
. And yes, as every true fan knows, the question should by rights be “in parentheses, capital letters, quotated.” But I took some liberties.
. See some interesting statistics here.
. I recognize the intellectual distinction between “You haven’t carried your burden of proving good character” and “You have bad character.” But in the real world, the consequences of the first statement seldom differ from the consequences of the second.
. The relationship between administrative bad character findings and debarment is not automatic, but it is pervasive. Typically, character is a factor to be considered rather than an automatic qualifier or disqualifier. See, e.g., In the Matter of Proposed Debarment for Labor Standards Violations by Facchino Construction Co., 1990 WL 506487 (DOL O.A.L.J.), 9; In the Matter of Robert Gordon Darby, HUDALJ 89-1373-DB (LDP). There are times when the connection to loss of government business or business assistance may be more direct. See, e.g. 13 C.F.R. § 115.13, a Small Business Administration regulation that may disqualify from eligibility for an SBA bond those businesses whose principals have been denied professional licenses for bad character.
Copyright (c) Jack L. B. Gohn