When a Respondent Seeks to Meet with a Complainant

An interesting question arose in an ethics proceeding in Kennesaw, GA, a city of 30,000 just outside of Atlanta. According to an article in the Atlanta Journal-Constitution and a Kennesaw Watch blog post, both dated July 17, soon after an ethics complaint was filed against the city's mayor, the mayor sent two text messages to the complainant, asking for a meeting “man to man face to face."

The Kennesaw Watch blog considered these messages intimidating. According to a Kennesaw Patch article this week, the attorney hired to advise the ethics board, which quickly met to discuss the complaint (and dismissed its allegations for primarily technical reasons), said "that part of dispute resolution includes a meeting between both sides. 'I’ve never gone into court without talking to the other side. I don’t see any hard and fast rule in the ethics code prohibiting this, and I’d venture to say it’s encouraged. We haven’t gone that far in this country to say you can’t talk about your differences.'"

It's odd that an attorney would compare two attorneys discussing a matter to two parties to a proceeding discussing a matter. Wouldn't this attorney, representing a plaintiff, discourage his client from meeting with the defendant, especially if he felt the defendant was going to try to get him to withdraw his suit? I think he would.

In an ethics proceeding, there are two additional issues. One, the complainant, by filing a complaint, has decided to leave the matter to the ethics board to settle. It is a best practice not to allow a complainant to withdraw a complaint, although he can request withdrawal. Dismissals and settlements should be up to the ethics board alone. But it's likely that a Kennesaw complainant is allowed to withdraw his complaint. This brings us to the second additional issue.

In the great majority of cases, an ethics complainant and respondent are not equal. In this case, the respondent was the city mayor, and the complainant a citizen (in fact, a citizen who worked for a company that had lost the city's ambulance service contract to the mayor's company, which was the basis for the complaint). Whenever there is such a difference in power (and this difference is even more serious when the complainant works in or for the local government), a request to meet by the more powerful party can feel intimidating. The less powerful individual has a reasonable expectation that the more powerful individual will somehow use his power and connections to try to either pressure a withdrawal of the complaint or make a deal for withdrawal.

Of course, the more powerful individual might want only to clarify what had happened and give the facts from his point of view, but the complainant won't know this until he accepts the invitation to meet.

High-level officials have to deal with unequal power issues every day. They should recognize the problems this inequality creates and be careful not to act in ways that citizens and subordinates may find intimidating. A government ethics proceeding provides for the formal handling of a matter. Instead of seeking an uncomfortable meeting in which to set the complainant straight, it is better for a respondent to do this in the form of a response to the complaint, which will set the respondent's view of the matter out before both the complainant and the ethics commission, without any question of intimidation. Similarly, settlement talks should be with the commission's director or counsel, not with the complainant.

Robert Wechsler
Director of Research-Retired, City Ethics

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