The Many Problems with Ethics Proceeding Confidentiality Rules
In <a href="http://www.cityethics.org/node/756" target="”_blank”">a recent blog
post</a>, I wrote about the fining of the executive director of
Philadelphia's board of ethics for violating confidentiality rules.
That blog post focused on dealing responsibly with a possible violation of an ethics code provision (although not actually an ethics provision, but instead a disciplinary rule). Now I would like to focus on confidentiality rules and
penalties in the government ethics context, and the many constitutional, policy, and logical problems these rules and penalties run into.<br>
<br>
The purpose of confidentiality in the ethics process is to protect the
reputation of innocent government officials and employees. This is
certainly a valuable public policy goal, but there are lots of problems
with it.<br>
<br>
<b>Freedom of Speech Issues</b><br>
One is that making an ethics proceeding confidential does not in any
way prevent public accusations from being made against innocent government
officials and employees. Due to first amendment speech rights, laws can
only keep proceedings
themselves confidential, not the underlying facts or allegations. This
is the position of such courts as the Second Circuit (<a href="http://openjurist.org/44/f3d/106/kamasinski-v-judicial-review-council-d…; target="”_blank”"><i>Kamasinski</i> v.
<i>Judicial Review Council</i></a>, 44 F.3d 106, 110 (2d Cir. 1994), a judicial
ethics case).<br>
<br>
There is still some value in making ethics proceedings confidential, at
least
for some time, because the news media is much more likely to cover an
official filing of allegations than it is to cover allegations without
an official filing. But it should be made clear that confidentiality
rules provide only very limited protection of innocent government
officials
and employees.<br>
<br>
Other jurisdictions consider unconstitutional even laws making ethics
proceedings themselves confidential. Read the Kansas Attorney General's
May 2009 decision on the state ethics commission's fine for violation
of the ethics code's confidentiality provision (attached to this blog
post, see below). The decision includes important case citations and
arguments. (Thanks for posting the AG's decision go to the <a href="http://kansasmeadowlark.com/2009/05/13/ag-says-ks-ethics-confidentialit…; target="”_blank”">Kansas
Meadowlark blog</a>).<br>
<br>
Note especially that the U.S. Supreme Court in <i>Landmark Communications, Inc.</i> v.
<i>Virginia</i>, 435 U.S. 829, 841-842 (1978) wrote, "injury to official reputation is an insufficient reason for repressing speech that would otherwise
be free."<br>
<br>
In any event, government transparency is part of government ethics.
Ethics commissions should lead the way in making their work as
transparent as possible, to the extent they are acting fairly,
responsibly, and within the laws.<br>
<br>
<b>The Ethics Process Is Not a
Criminal Process</b><br>
The second problem with the goal of protecting innocent government
officials and employees is that ethics proceedings are not, generally,
criminal proceedings. Violating an ethics law does not make a
government official guilty of a crime. The typical ethics complaint
alleges that an official had a conflict, did not disclose it, and
improperly acted or voted on the matter.<br>
<br>
If a local government educates its officials, employees, news media,
and public effectively in advance, people will recognize that an ethics
complaint is not about officials being guilty or innocent, but about
officials dealing or not dealing responsibly with their conflicts. If
an official feels she doesn't have a conflict, she should openly
welcome a complaint that will clear the issue up and publicly say that,
if it turns out she was wrong about the conflict, it will be a learning
experience for her and for the other local government officials.<br>
<br>
The problem is that most officials faced with an ethics complaint say
they did nothing wrong, that they're good and ethical people. They make
it a question of guilt and innocence, and want the proceedings about it
hushed up as much as possible.<br>
<br>
<b>The Benefits of Independent
Ethics Enforcement</b><br>
Remember that one of the greatest benefits of independent ethics
enforcement is that the alternative is to have enforcement by rumor,
accusation, partisan squabbling, and media/blog coverage by people who
rarely understand the issue. Formal independent enforcement cannot put
an end to rumor, false accusation, and partisan squabbling, but it can
both provide a more respectable alternative and it can educate people
so that the coverage is more understanding and the squabbling and
accusations look more ridiculous.<br>
<br>
Confidentiality, at least after it has been determined that a complaint
is not frivolous, does not actually fulfill the public policy goal of
providing an effective alternative to personal and partisan attacks on
government officials and employees. In fact, what Philadelphia's
executive director did in breaking his city's confidentiality rule was
intended to, and did, benefit this goal. Working with the media is one
of the most important things an ethics program does, because it is the
news media that has the most important role in covering the government ethics process and in educating the public
about it.<br>
<br>
<b>Penalties</b><br>
I've seen local government ethics codes that provide no penalties for
any violations other than frivolous complaints and violations of
confidentiality rules. These are clearly ethics codes written with
government officials' personal interests in mind.<br>
<br>
In fact, the policies behind these penalties are contradictory. Most people agree that
frivolous complaints should not be disclosed, but to penalize those who
make frivolous complaints, the frivolous accusations have to be made
public. Yes, often the penalty is to allow the respondent to sue the
frivolous complainant, but if the frivolous complaint has been kept
confidential, what could be the harm to the respondent? In short, the
argument in favor of penalizing to protect against frivolous complaints
is a circular argument.<br>
<br>
Officials and their attorneys are too often obsessed with the image of
an ethics commission that's out to persecute them. They fight for every
protection against this that they can think of, including
confidentiality rules, ethics commissions that cannot penalize them,
impossible turnaround times and, of course, self-regulation. With
respect to confidentiality rules, officials need to realize that an
open process, at least after the determination that a complaint is not
frivolous, is not only in their best interests. It's also the law.<br>
<br>
By the way, I changed my point of view on this issue over the last year. See <a href="http://www.cityethics.org/node/430" target="”_blank”">my blog post</a> from April 2008, where the issue was the ethics of politicizing the ethics process.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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