Transparency and Confidential Information Issues in Clackamas County, OR
Transparency, although not generally part of a local ethics code, is
central to a local government's ethics environment. A lack of transparency is both a
tell-tale sign that things are wrong, and an impediment to discussing
ethics issues and enforcing ethics violations. Unfortunately, ethics codes do have confidential information provisions, making it appear to those who do not understand government ethics that it is more important to hide confidential information than to let the sunshine in.<br>
<br>
The transparency problem in <a href="http://en.wikipedia.org/wiki/Clackamas_County" target="”_blank”">Clackamas County,
Oregon</a>, the home of Mt. Hood and Oregon City, is taking the form of
actions against an official for allegedly sharing confidential
information, making public records requests, and making allegations of
questionable expenditures.<br>
<br>
According to <a href="http://www.oregonlive.com/clackamascounty/index.ssf/2011/02/clackamas_w…; target="”_blank”">an
article in the <i>Oregonian</i> on Wednesday</a>, the board of the Clackamas
River Water District has filed both an ethics complaint (with the
state, which has jurisdiction over local ethics) and a criminal
complaint against one of its members. This alone is unusual. Generally,
a board will turn over information to city or state authorities rather
than filing charges itself. This must be something really serious,
right?<br>
<br>
<b>Misuse of Confidential Information</b><br>
According to the article, the ethics complaint accused the board member
of "improperly disclosing confidential information, recording closed
meetings and obtaining confidential employee medical information on
water district employees." The criminal complaint accused her of
"making unauthorized recordings of executive sessions and sharing them
with others."<br>
<br>
What is <a href="http://landru.leg.state.or.us/ors/244.html" target="”_blank”">the
Oregon rule on confidential information</a>? "A
public official may not attempt to further the personal gain of
the public official through the use of confidential information ..."
(§244.040(4))<br>
<br>
This is common language, except that it is preferable to prohibit the
use of confidential information for anyone's financial gain. But no one
appears to be accusing the board member of any financial gain due to
her use of confidential information from the executive sessions.<br>
<br>
<b>Recording Executive Sessions</b><br>
I could not find any provision prohibiting the recording of
executive sessions. In fact, minutes must be taken at executive
sessions, and very often they are not. In the alternative, executive
sessions may be recorded; it doesn't say by whom.<br>
<br>
Sharing such recordings with others certainly seems wrong, but there
are situations where this would actually be a good thing. For example,
if the executive session is dealing with matters it is not by law
allowed to deal with, or if votes are taken at the executive session,
it would be useful to have evidence of this.<br>
<br>
In this era of transparency, executive sessions are one way to hide
discussions and decisions from the public. Whenever a board gets very
defensive about its executive sessions, and has them regularly, it is probably trying to hide something. Filing actions
based on executive session issues is a very bad sign.<br>
<br>
When in doubt, transparency is best. Problems with transparency can
mean incompetence or a desire not to have outsiders bother officials,
to get business done with the least amount of trouble. But when a board
is bringing actions against its own members, it's not about
incompetence and it's not about the public being a pain in the ass.<br>
<br>
<b>Intimidation</b><br>
According to the board member, the actions against her are "retaliation
for having exposed contracts run wild, thousands of dollars of
overspending, and missing checks." She has also made extensive requests
for public records. According to the water district's general manager,
the district has spent "$150,000 on attorneys, auditors and staff time
responding to [the board member's] allegations and public records
requests." That seems like an enormous amount of money.<br>
<br>
In a comment to the article, the board member's husband said that this
figure represents the estimated cost of an audit that was originally
intended to cost $30,000. It is supposedly based on far more than the
board member's allegations. The first auditor was allegedly fired, and
a new auditor brought on with a larger contract.<br>
<br>
The husband says that there has also been intimidation used against
employees. Actions against a board member are a good way to intimidate
everyone who works for the water district. It makes it clear that you
mean business. Such a thing should be done only if there has been
serious misconduct. If the confidential information was not used for
anyone's benefit, there is no serious misconduct. And certainly no
crime.<br>
<br>
The board should withdraw its complaints and deal with these matters in
open meetings and through the audit process. Personal attacks and
intimidation should come to an end. And substantive criticism should be
responded to professionally.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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