A Remedy for Lack of Ethics Training and Advice?

How important is ethics training? According to Justice Ginsburg's dissent in Connick v. Thompson, a 5-4 decision by the U.S. Supreme Court on March 29, it is the difference between life and death.

In this case, ethics training involved training regarding the requirements of Brady v. Maryland, 373 U. S. 83 (1963). Brady places an affirmative constitutional duty on prosecutors and police officers to disclose exculpatory evidence to a defendant.

This is one of the most difficult ethics requirements there is. It goes against everything else lawyers learn in school and in their work. It means putting the public interest in giving a criminal defendant a fair chance against the public interest, and every prosecutor's primary goal, to convict a guilty defendant. It can mean losing a case that could otherwise be won. And, most problematic of all, it is very difficult to know when evidence has been withheld, since all the evidence is in the hands of the prosecutor or the police. In other words, it's hard to get caught violating the Brady duty.

In the case of Thompson, the defense discovered hidden evidence by chance only weeks before Thompson was to be executed.

Recognizing how hard it is to discover hidden evidence, Ginsburg writes, "The prosecutorial concealment Thompson encountered ... is bound to be repeated unless municipal agencies bear responsibility—made tangible by §1983 liability—for adequately conveying what Brady requires and for monitoring staff compliance. Failure to train, this Court has said, can give rise to municipal liability under §1983 'where the failure . . . amounts to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.' Canton v. Harris, 489 U. S. 378, 388 (1989)."

Thompson was tried again, and was found to be not guilty. He filed a §1983 civil action for violation of his constitutional rights by the withholding of evidence. Justice Ginsburg notes that, in the Canton case, "we observed that a municipality’s failure to provide training may be so egregious that, even without notice of prior constitutional violations, the failure 'could properly be characterized as "deliberate indifference" to constitutional rights.'"

Ethics does not involve constitutional violations, of course, but can municipalities that do not provide adequate ethics training be characterized as deliberately indifferent to officials putting their personal interests ahead of the public interest?

Think of it this way. Teaching prosecutors to give the defense evidence that could set a defendant free is the hardest ethics training there is. And yet the Supreme Court has determined that such training is required, implying that it is effective. If this most difficult kind of training can be required, and effective, why shouldn't ethics training be required, and effective? And not only training, but the availability of independent, professional ethics advice, which is itself a form of ongoing training (think of the ethics officer as an official's personal trainer in ethics).

Again and again, officials says they didn't know the rules, they didn't understand the requirements, etc. It's hard to say that when you've taken one or more courses in ethics and can ask an ethics officer for advice whenever you're not sure. I recognize that many people say you can't teach ethics, although I disagree with them, especially when it comes to conflicts of interest. But no one has ever argued that ethics advice has no value.

There will likely never be a Canton v. Harris involving local government ethics. But that doesn't mean that local governments have no obligation to provide ethics training and advice. Yes, it costs money. But so do other classes and other professional services. Why is it that no one argues against continuing education for local government officials, and yet when it comes to continuing ethics education for the same officials, money becomes a concern? Why is it that the advice of engineers, lawyers, and accountants is sought every day, but not the advice of government ethics professionals?

Is there a deliberate indifference to local government ethics? Probably not, most of the time. People truly believe being ethical is enough, and that any lawyer can provide advice. Both beliefs are false.

What there is is a deliberate ignorance about government ethics, an unwillingness to try to understand what it is and how best to deal with it.

Thank goodness no one is executed or left to rot in prison due to this deliberate ignorance. But public mistrust of government is not a pretty thing, and that is what results from this deliberate ignorance. One could say that citizens are imprisoned by their mistrust, and that this imprisonment requires a remedy.

Robert Wechsler
Director of Research-Retired, City Ethics

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