Joe Murphy’s post on the FCPA Blog — Why outlawing grease payments may mean very little — reminded me of an incident involving the toll collectors on the Golden Gate Bridge.
Many years ago, as a young attorney in San Francisco, I recall that the Board responsible for collecting cash tolls on the bridge — which I had to cross each morning and evening on my way to and from my office — decided in an experiment for some months to announce that they would not prosecute toll collectors who would pilfer less than a certain (deemed not-unreasonable) amount each month.
Previously on the bridge, there had been an absolute prohibition (understandably) on any such pilfering (stealing) of collected tolls. The pilfering was accomplished not by simply putting the cash into the toll-taker’s pocket, but through more complex schemes of charging the correct fare to the motorist, but noting in the system a smaller sized vehicle, which meant some of the amount collected did not need to end up in the till.
What the Board discovered by its “experiment” was that the total amount of theft went down dramatically, as the toll-takers could take advantage of the given “amnesty” amount each month without fear of being “caught” (even though the Board knew who did what in the end by other controls), but they would not cheat big-time.
There was a lot of discussion of whether this idea was acceptable for a governmental agency, the “purists” saying clearly “no,” i.e., no amount of stealing could be considered as acceptable.
But it could not be disputed that the overall level of theft was dramatically limited during the experiment period, and no more “big cases” of theft of toll money were found.
It seems to me that facilitation payments, if “controlled” in some sort of a similar manner, could address the same psychological need in international business transactions which the Golden Gate toll-takers had demonstrated.
The problem is always the same, i.e., to define what is an acceptable amount of wrongdoing? It is still wrong to steal the tolls, and to bribe one’s way into a business.
Dr. David A. Lawson, FCIArb, is a partner in the Bonnard Lawson International Law Firm. He’s based in Geneva, Switzerland. He acts as an arbitrator or mediator in international commercial and financial disputes, and he advises both corporate and personal clients in all types of international transactions and cross-border disputes. He is also interested and has written on legal ethics and the rules of deontology as applied across jurisdictional borders. Dr Lawson obtained a Doctor in Philosophy in Law (D.Phil) from Oxford University, specializing in choice of law theories and practice, as well as the Hague Academy Certificate in Private International Law. He’s a member of the California State Bar.