Chicago Task Force Second Report IV — Confidentiality and False Information

Although the Chicago Ethics Reform Task Force, in its first report, came out strongly in favor of more transparency in government, in its second report it came out strongly in favor of what it calls "confidentiality" in the ethics program. I call it what the public calls it: "secrecy."

When an Ethics Proceeding Should Go Public
It is common for ethics proceedings to become public when probable cause is found (that is, that there is reason to believe an ethics violation has occurred and should, therefore, be dealt with). Hearings after probable cause has been found are usually conducted in public. However, the task force believes that, "under no circumstances should the subject’s name be disclosed until after the Board makes a final determination regarding the charge at issue."

In most cases, the subject's name has been disclosed outside of the ethics process. To the public, it looks like the ethics process is protecting the public official, and this means that the process is about protecting the official. This secretive approach to ethics enforcement is what makes people attack the ethics board for never having enforced the ethics code against a member of the council. Whatever the truth is, the appearance is not good.

The task force accepts the argument that confidentiality is required "to prevent employees and officials from being tainted by unjustified complaints." It is true that a complaint should be kept confidential until a preliminary investigation is done and a probable cause determination made. But the "tainting" of officials is only one consideration. The task force and the Chicago ethics code appear to consider it the principal consideration. According to the ethics code, an ethics board member’s disclosure of information, even if it benefits no one but the public, is the most serious problem in all of Chicago’s government (removal from office is the sole penalty). The task force does not want to change this.

The Real World
Everyone who designs an ethics program needs to accept the fact that, especially in this Internet era, frivolous, tactical, malicious, and anonymous ethics attacks will occur, no matter what the ethics code says. Leaks will occur, and no one will know who made them, because they will take the form of anonymous posts and protected statements to journalists. And sometimes leaks will be justified, because there is so much false information out there that will hurt an official more seriously than the truth.

An example of this occurred in Philadelphia, in 2009. The executive director was fined $500 (in Chicago he would have been removed from office) for telling a reporter that the board was in the midst of settlement negotiations with a particular official. He had been asked about a fine against this official (yes, there had been a leak), and he said this was not true. Silence would have led the paper to state that there was a proceeding against an official and rumors of a fine (that is, a finding of a violation) against him, which was, as everything is when confidentiality is paramount, denied by the ethics board. So, off the record, the executive director told the reporter that the board was in the midst of settlement negotiations, in order that the reporter would not print the false story that would have wrongfully "tainted" the official.

This was the right thing to do, but it was against the law. And yet the executive director was fined, because the law did not recognize any consideration but confidentiality, and failed to recognize that, in the real world, false, harmful information is a common reality, and needs to be dealt with responsibly by an ethics program. Denial after denial is not necessarily the best way to protect a respondent, and it is certainly not the best thing for an ethics program.

The Arguments Against Ethics Proceeding Confidentiality
I discuss this issue at length in my book Local Government Ethics Programs. Let me just list the arguments against ethics proceeding confidentiality:

Transparency is a central part of government ethics.

Government officials have a fiduciary duty to the public being prevented from knowing about an ethics proceeding.

First Amendment free speech rulings limit confidentiality rules.

The guidance provided by public ethics proceedings is a very important consideration.

Confidentiality ignores the fact that an ethics proceeding is a formal, responsible alternative to dealing with ethics issues in a partisan, malicious, ignorant manner in articles, letters to the editor, and blog posts.

Confidentiality supports the poor argument that government ethics is about character and reputation rather than the responsible handling of conflicts.

Confidentiality encourages delay by officials.

Confidentiality makes an ethics proceeding seem like a criminal proceeding, and dealing irresponsibly with a conflict seem like a criminal offense.

Confidentiality in one area of government ethics can be stretched into others, such as disclosure.

It is important to recognize that an independent government ethics program is an alternative to dealing with conflicts of interest in an irresponsible manner. The best way to end this irresponsible way of dealing with conflicts is ensure that conflicts are dealt with responsibly, through reasonable rules, through formal processes, and transparently.

Penalties for False Information
The task force does not believe that confidentiality rules alone will sufficiently protect officials from a world in which the irresponsible handling of conflicts of interest is often irresponsibly handled. It also believes it is necessary to have strong penalties for providing false information in a complaint or to an ethics investigator.  In fact, it wants to make it easier to penalize someone who gives false information, by changing the standard from the current "intent to mislead" to "knowingly false." It refers to the proposed standard as a "a zero-tolerance standard."

The problem is that a zero-tolerance standard scares away complainants and chills the testimony of witnesses. Most people don't really understand government ethics, and they lack complete information or understanding of the facts they do know (or think they know). It takes a great deal of courage to file a complaint or provide damning testimony, especially against a superior or a colleague. It could serious limit or even destroy your career. It seems like ratting on your colleagues, and will likely ruin your reputation in the workplace. And the facts usually aren't certain, not to mention the law. If you have any uncertainty, a zero-tolerance standard regarding the truth of your statement will certainly tip the scales and cause you to keep what you know to yourself.

As with confidentiality, the protection of an official's reputation must be balanced against other considerations. And one must consider the fact that, no matter what you do, you cannot protect an official's reputation. The goal is to find the best way to minimize damage, and that is an independent government ethics program that trains, encourages requests for advice, and fairly and transparently enforces the law when an official chooses not to seek or follow advice.

Any official who wants to honestly preserve his reputation will ask for advice whenever a possible conflict situation arises, and will want to know that there is an independent ethics process to deal with complaints against him. Why do I stress independence here? Because if a dependent ethics board dismisses a complaint against an official, the public will believe that it is because the board members have a relationship with the official or his colleagues. In other words, a dependent ethics board appears to the public to be a conflicted ethics board, and the decisions of an apparently conflicted ethics board, when they seem to favor an official, are not respected. An official cannot be vindicated by an apparently conflicted ethics board. He can only say that he has been vindicated.

Confidential Advice
The task force also wants to preserve the confidentiality of ethics advice. It writes, "it is worth limiting the dissemination
of some information in order to encourage its employees and officials to contact the Board for advice regarding ethics issues."

On the other hand, the task force feels that the dissemination of advisory opinions needs to be improved. They "should be
clearly written and readily available in an organized database that permits searching across the opinions." In other words, the task force recognizes the guidance that ethics advice provides, not just to the one who asks for it, but to many others.

Of course, business details given as part of a request for ethics advice should not ordinarily be made public. There is no reason why they should be, any more than someone's income should be requested on a financial disclosure form. The details don't matter. What matters are the relationships:  an official works for a company, or her brother runs a nonprofit, or she owns property near a proposed subway stop. It doesn't matter how much the company pays her, whether she gets along with her brother, or who she owns the property with (unless the others are officials or subway contractors, or have a special relationship with officials or subway contractors).

Since guidance is the most important part of a government ethics program, it should take precedence over other considerations. Advice should not be kept secret unless there is clear evidence that making advice available to all officials will cause individual officials not to seek advice.

Ironically, the more advice is made available to all officials, the less officials will have to ask for advice, because they can find situations similar to theirs on the ethics board website. In other words, transparency will itself lessen the problem of some officials deciding not to seek advice.

As it is, most non-lawyers do not think about confidentiality anywhere near as much as lawyers do. Non-lawyer officials don't expect the level of confidentiality most lawyers feel is necessary. In fact, if officials were regularly reminded how responsible it is to seek ethics advice, and how much their constituents and colleagues appreciate their interest in doing the right thing, most officials would gladly waive any confidentiality the law might allow them.

One should be proud of seeking advice about one's public duties. It's not something many people would want to hide. And yet most ethics programs do not regularly ask officials to waive their confidentiality. There is an assumption of confidentiality, except for formal opinions, which are usually few in number.

As the administrator of the New Haven Democracy Fund, a public campaign financing program, I gave ethics advice to board members (New Haven does not have an ethics officer). And not once did a board member ask for or even about confidentiality.

Confidentiality is an important part of the relationship between a private attorney and a private client. It is not an important part of the relationship between a public attorney and the individual currently filling a public position. People think it is, because most lawyers don't distinguish between these two situations (although they learn to do this the first year of law school), but it is not. In the ethics context, there is an ethics officer instead of an attorney, and she is not representing anyone. She is giving ethics advice, an administrative act in an administrative program. What does this have to do with lawyer-client confidentiality?

Instead of having a secretive ethics program, it would be better to educate government attorneys and officials alike about why confidentiality is inappropriate in a government ethics context and about why it is a good thing for each official, for the government organization, and for the public to seek professional ethics advice and have that advice be public.

Sharing of Information Within an Ethics Program
One area where the ethics task force wants more transparency is in the sharing of information among the IGs and the ethics board. Even here, the task force is overly concerned with the official's rights. It wants to require the IGs to get an official's permission before asking the ethics board for an advisory opinion. Considering that the IGs will be investigating matters for the ethics board, it would seem that they are allies in the same operation (there is a dispute regarding an IG subpoena of the ethics board, but in this matter they are not allies in the same operation).

And there is a serious question whether any official has a right to confidentiality from the government she works for regarding public responsibilities. If there is a questionable right to keep such information from the public, what right could there possibly be to keep such information from one's own government?

An official who has sought advice and followed it would be happy to let an investigator know this. This can only make the official look good and have the investigator look elsewhere. Letting an investigator know about ethics advice would be problematic only for an official who not only handled a conflict situation irresponsibly, but did it after being told by the ethics board how to handle it responsibly. This is important information for an investigation and should be part of any ethics proceeding record. The officials who would be less likely to seek an advisory opinion because it may be available later in an ethics investigation are those who intend to ignore advice they don't want to hear.

Robert Wechsler
Director of Research-Retired, City Ethics

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