Divulging Confidential Information Is Not a Conflict If It Only Benefits Someone Politically
In a recent <a href="http://www.cityethics.org/content/new-michigan-model-local-government-e…; target="”_blank”">blog
post</a> on the new Michigan Model Local Government Ethics Ordinance, I
noted in passing that the model wrongfully made divulging confidential
information a violation even when it benefits no one, and that this is not a government ethics issue.<br>
<br>
This same issue arose this week in Bainbridge Island (WA), according to
<a href="http://www.pnwlocalnews.com/kitsap/bir/news/69622072.html" target="”_blank”">an
article in the Bainbridge Island <i>Review</i></a>. A complaint was filed
against a council member for leaking confidential information about
settlement talks between the city and the Bainbridge Ratepayers
Alliance. The complaint was filed by the Ratepayers Alliance.<br>
<br>
The relevant ethics code provision reads:<br>
<ul>Covered persons shall not disclose or
use confidential or proprietary
information obtained in executive session or otherwise in the course of
their duties as a result of their position. No covered person shall
disclose any such information except as required by law.<br>
</ul>
<br>
There is no problem with such a provision, as long as "confidential or proprietary information" is clearly defined. But this provision does not belong in an
ethics code and a violation of it should not be under the jurisdiction of an ethics
commission, because it is not a government ethics issue.<br>
<br>
The problem here is a confusion about what government ethics is, a confusion that manifests itself in the way a common government ethics provision is changed. Here is the City Model
Ethics Code version of the provision, which is close to the norm:<br>
<ul>An official or employee, a former
official or employee, a contractor or a consultant
may not disclose any confidential information obtained formally or
informally as part of his or her work for the city or due to his or her
position with the city, or use any such confidential information <b>to
further his or her own or any other person or entity's personal or
financial interests</b>.
[emphasis added]<br>
</ul>
<br>
Taking out the part about furthering personal or financial interests
removes the issue from government ethics, which involves conflicts of
interest. Divulging information for political purposes is, like other
things officials do for political purposes, outside the scope of an
ethics commission's jurisdiction.<br>
<br>
But what about campaign finance provisions? Don't they involve
political purposes? No, campaign finance provisions deal with the
appearance or fact of influencing elected officials by giving them
legal gifts. There is a conflict between the public interest in having
officials make impartial decisions rather than giving preference to those
who give them large gifts, and this interest conflicts with elected officials' interest in getting large, secret contributions. This is why campaign finance
provisions deal both with the size and the transparency of campaign
contributions, especially from those doing business with the local
government or having an interest in its decisions.<br>
<br>
The public's principal interest in confidential information, as seen in freedom of information and sunshine laws, is to have
as little government information as possible be secret. However, when
information needs to be keep secret – especially during deals,
negotiations, or litigation – the public interest is in preventing
officials with access to that information from using it to their
benefit or for the benefit of their families, friends, and business
associates.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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