Attorneys on an EC, and Ethics Proceeding Confidentiality

Lawyers and confidentiality can both be serious obstacles to the effectiveness of a
government ethics program. An ethics case in Trumbull, CT provides a
good look at how this can happen.<br>
<br>
<b>Attorneys on an Ethics Commission</b><br>
According to <a href="http://www.trumbulltimes.com/11080/ethics-complaint-dismissed-herbst-ba…; target="”_blank”">an
article in the Trumbull <i>Times</i> last week</a> and <a href="http://www.ctpost.com/local/article/Trumbull-Ethics-Commission-rejects-…; target="”_blank”">an
article in the Connecticut <i>Post</i></a> a few days before it, four of
the six attorneys on the Trumbull ethics commission had to withdraw
from participation in the case due to conflicts of interest. In fact, six of the
seven members are attorneys (two of the seven members are alternate
members).<br>
<br>
Many high-level officials believe that attorneys make the best EC members, because they understand laws, and ethics codes are laws. However, other than government officials, attorneys are the individuals most
likely to have conflicts that prevent them from participating in ethics proceedings. An attorney selected by high-level officials is even more likely than the average attorney to be conflicted in an ethics
proceeding involving officials (especially the businesspeople and professionals who sit on town boards) or the businesspeople, and their attorneys, who are seeking special
benefits from the government.<br>
<br>

This case involved the school board chair, the school building
committee chair, and the head of the company that manages the town's
capital projects. The company is a major government contractor in
Trumbull and throughout the state, which means that he deals with
lots of lawyers. The conflicts regarding these respondents cut the EC down to three members, which in many jurisdictions would require a unanimous vote for a finding of probable cause, in order to make the proceeding public.<br>
<br>
<b>Ethics Proceeding Confidentiality</b><br>
In fact, the case <i>was</i> dismissed before a public hearing. Under state law, an
ethics proceeding is confidential until a finding of probable cause.
The result in this case was that everyone, from the town attorney to
reporters, was forced to speculate about what the case was about and why it was dismissed.<br>
<br>
But one
respondent came forward to complain about the filing of the complaint
against him and attack the first selectman (effectively the mayor)
for having put the town auditor up to filing the complaint.<br>
<br>
The result was an odd combination of the respondent going public
with some of the facts, while others, such as the subject of the
complaint and the reason for its dismissal, still the subject of
speculation.<br>
<br>
The town can do little about state law (although it could try to get
the municipal association to seek an amendment to it). But the town
could add an ethics code provision that would make any public
statement about an ethics proceeding by a respondent a waiver of
confidentiality, at least with respect to the respondent's case.<br>
<br>
It is important to recognize that confidentiality exists only to
protect the respondent. If the respondent goes public about an
ethics proceeding, in any way, he is saying that it is more
important for him to be able to talk about the proceeding than it is
for him to be protected from having details about the proceeding be
made public. He cannot have it both ways, picking and choosing which
facts to talk about, while all others are kept confidential. This is
unfair to the town's citizens and, in the Trumbull case, especially to the officials he is attacking, who cannot defend themselves without discussing the
case.<br>
<br>
If respondents want a case to remain confidential, they must accept
the fact that speculation will be rampant, and that it is solely
their fault. They cannot complain that fingers are unfairly being
pointed at them. This is what happens to people who insist on
secrecy:  people feel they have something to hide.<br>
<br>
When they talk about a case and still insist it be kept
confidential, then it is reasonable to believe they are hiding
something and using confidentiality both to protect themselves and
to attack others. This is very damaging to an ethics program, and far more damaging to the respondent's reputation than the fact that an ethics complaint against them has been dismissed.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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