The Many Problems with Ethics Proceeding Confidentiality Rules

In a  recent blog post, 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.

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.

Freedom of Speech Issues
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 (Kamasinski v. Judicial Review Council, 44 F.3d 106, 110 (2d Cir. 1994), a judicial ethics case).

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.

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 Kansas Meadowlark blog).

Note especially that the U.S. Supreme Court in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841-842 (1978) wrote, "injury to official reputation is an insufficient reason for repressing speech that would otherwise be free."

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.

The Ethics Process Is Not a Criminal Process
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.

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.

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.

The Benefits of Independent Ethics Enforcement
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.

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.

Penalties
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.

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.

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.

By the way, I changed my point of view on this issue over the last year. See my blog post from April 2008, where the issue was the ethics of politicizing the ethics process.

Robert Wechsler
Director of Research-Retired, City Ethics

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