Confidentiality After an Official's Resignation

Anonymous

Tue, 03/08/2011 - 04:55

City Related

It is generally agreed that it is best to preserve an ethics
commission's jurisdiction over officials and employees after they quit
or leave office. There are two reasons for this. One, to prevent them
from escaping enforcement by quitting or leaving office. This is
especially important because it can take a long time for information to
come out that an ethics violation might have occurred, and for an
ethics proceeding to be completed. The second reason is to allow for
post-employment restrictions. But many ethics codes ignore this best
practice, and end an ethics commission's jurisdiction the moment an
official leaves office. 
 
This becomes especially problematic when the jurisdiction has strict
confidentiality rules, as can be seen in the recent events in White
Plains, NY.

According to <a href="http://www.lohud.com/apps/pbcs.dll/article?AID=2011102250341" target="”_blank”">an
article on the lohud.com site</a>, Steven Leventhal, special counsel
brought in by the White Plains ethics board to investigate a complaint
against the now former mayor, Adam Bradley, said that the board is prohibited from
releasing any information about its investigation until formal charges
have been filed. Since they apparently were not filed before the mayor resigned (although no one will say one way or the other),
the case file is completely closed. 
 
The mayor resigned on February 18, the day after the ethics board held
a special meeting on his case. But this was not all that was on his
plate. In December he had been convicted on five charges involving
domestic abuse, a conviction he said he would appeal. 
 
Here is the language from <a href="http://www.carmelresident.org/ethics_board/white_plains_ethics_code.htm…; target="”_blank”">the
White Plains ethics code</a>:<ul>

the complaint, records and other proceedings related
thereto prior to the filing of charges or dismissal of the complaint
are deemed
confidential.</ul>

But when are charges filed?<ul>

Upon a full investigation, if the Board of Ethics
determines after a two third's vote of the total voting membership of
the Board that
a hearing is warranted, the officer or employee who is the subject of
the complaint shall
be served with formal charges. </ul>

According to the lohud.com article, the ethics board investigated the
matter and quickly found probable cause with respect to the charges in
the complaint. But then the investigation continued when special
counsel was hired. The investigation began in July and related to a
fairly narrow set of facts. We'll never know why the investigation took
so long. 
 
Reasons for Confidentiality 
Usually, confidentiality ends when probable cause is found. The reason
is that confidentiality is primarily intended to protect officials
against frivolous claims. It's hard to call claims frivolous after
probable cause has been found and the facts have been investigated for
at least seven months without dismissal. 
 
But Leventhal sets out other reasons for confidentiality at this point
in the proceedings. According to the lohud.com article, "Because [former mayor]
Bradley resigned during the board's preliminary investigation,
Leventhal said, it would be both 'terribly unfair' and illegal by
charter to release the findings or any formal charges, which at this
stage could include hearsay, unsworn testimony and supposition. The
probe at this point, he said, is tantamount to a grand-jury hearing,
which is also confidential. 
 
"On top of that, Bradley still deserves the
rights that could have been afforded him in a potential public hearing
— including the right to defend himself, cross-examine witnesses and
present evidence. Disclosing the findings after he resigned would
deprive him of those rights, he said." 
 
Ethics and Grand Jury Investigations 
Leventhal's position is that an ethics
investigation is no different than a grand jury investigation, which I
strongly disagree with. Grand juries deal primarily with criminal laws,
and criminal due process rights apply. Ethics proceedings are
administrative, with different evidentiary rules, lower due process
rights and, of course, far lower penalties. 
 
Extending Confidentiality Due to Official's Resignation 
I also disagree with Leventhal's position on the release of formal
charges after the mayor resigned. It would not be unfair to the former mayor, because
if formal charges had been made, then confidentiality would have ended
and he would have decided to remove himself from the ethics board's
jurisdiction knowing this. And if the mayor really wanted to, he could
have allowed the ethics board to continue its proceedings, despite the fact that the code allowed the case to be dismissed. And he could have chosen to defend himself, or
reached a settlement. It was his choice, and he chose to allow the
proceedings to be dismissed. 
 
Punishment, Education, and Cover-Up 
The ethics board chair is quoted in <a href="http://whiteplains.patch.com/articles/findings-of-former-white-plains-m…; target="”_blank”">a White Plains Patch article</a> as
saying that the mayor's resignation is "the ultimate punishment a public
official can experience." I agree with this, but with an important
caveat. The fact that punishment is not warranted does not mean it is
not important for the public to know what happened, especially if the
mayor resigned in order to keep it secret. More people than the mayor
were involved, and it is important that the public and other officials
know what was going on, so that the officials can learn from it and the
public can be satisfied that they know what happened. Punishment is not
only not everything, it is the least important part of government ethics.
Education is far more important. And leaving the sense that there was a
cover-up is the worst thing possible. 
 
Confidentiality is not an absolute and it is not fair to the public to
treat it as one. Lawyers are trained to treat confidentiality as nearly
sacred, but in government ethics it is not even desirable. Even
frivolous accusations are quickly shown to be frivolous, which blows up
in the face of the accusers. Government ethics is focused on the public
interest. Government ethics involves public servants, whose work is
public. Confidentiality is about keeping things private. It has a
secondary place in government ethics. 
 
What Is Public Should Be Public 
Last year, the ethics board did release a report on a former planning board member who stepped down in the middle of an investigation. Leventhal said that investigation was related to the board member's failure to file his ethics disclosure forms, a public document, a distinction he considered important. But what isn't public about the work a public official does? It's not as if the ethics proceeding involved the mayor's domestic abuse. It involved his actions as mayor. These are as public as public can be. 
 
Postscript: Abusing the Confidentiality Provision 
<a href="http://www.lohud.com/article/20110303/NEWS02/103030398/Bradley-s-asteri…; target="”_blank”">An article on the lohud.com site last week</a> shows a way other than resignation in which an official can use a confidentiality provision to protect himself in what I consider to be a completely unwarranted way. 
 
In his ethics proceeding, there was a question about the amount the mayor paid in rent to a developer he had tried to help with government permits. A below-market rent would constitute a gift. In his annual financial disclosure statement, the mayor said he had not received any gifts, but added an asterisk. At the bottom of the page, he wrote, "This answer cannot be fully answered at this time due to the confidentiality provisions of the city's Ethics Code." 
 
Does an ethics investigation mean that an official need not fill out a financial disclosure statement? I don't think so. It's public information, even if it is also evidence in an ethics proceeding. The public has a right to know if the mayor received a gift from the developer. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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