The Limits of Disclosure
Elisabeth Rosenthal wrote an excellent <a href="http://www.nytimes.com/2012/01/22/sunday-review/hard-truths-about-discl…; target="”_blank”">op-ed
piece for the New York <i>Times</i></a> last Sunday. It was about
disclosure, more specifically about the way disclosure sometimes
neither leads to more transparency, nor prevents what it is intended
to prevent. In the government ethics situation, that would mean
preventing misconduct.<br>
<br>
Technical compliance, especially with the limited disclosure rules
of local ethics codes, often provides little important information.
We might know that an official owns more than 5% of Hometown
Developers, but we don't know who owns the rest. Therefore, when one
of the other owners comes before the official's board, there is no
record of a special relationship between the owner and the official.<br>
<br>
Similarly, annual financial disclosure requirements rarely include
the offical's business associates or the employers or financial interests of close family members,
including children, siblings, and parents. Sometimes even information about one's spouse.<br>
<br>
Of course, no disclosure form says that you cannot make disclosures
that are not required by law. If you were to list, on separate
sheets, the interests of your immediate family members, at least the
ones that have to do with your city or county, no none would object.
In fact, you would likely be lauded for doing this. And yet how many
officials do it? Put another way, how many high-level officials take
a leadership role in going beyond the law to set out in their annual
filing all relationships and interests that might give rise to an appearance of impropriety in the
coming year?<br>
<br>
Rosenthal notes that "disclosure requirements merely get information
onto the table, but themselves demand no further action." She feels
that disclosure has often become "an end-point in the chain of
responsibility, an act of compliance with the letter of the law
rather than the spirit of transparency."<br>
<br>
This is true of the many local governments that require only disclosure
of conflicts or gifts, while allowing officials to accept gifts and
act with conflicts. Knowing they would have to let the public know they are acting in their
personal interest would, one would think, deter officials from
accepting gifts or acting with conflicts. But when the law says
disclosure is enough, the officials can defend their conduct by
saying that they complied with the law. This leaves the public grumbling that these guys write the laws to help themselves. In other words, officials act doubly in their personal interests.<br>
<br>
One problem with the disclosure-only approach is that government ethics is not a compliance
program. It is a program based on training and advice, so that
officials can act in such a way as to preserve the public's trust in
the government. And there is enforcement if officials fail to deal responsibly with their conflicts. This is very different from compliance.<br>
<br>
Disclosure followed by legal misconduct undermines the
public's trust. Therefore, it is not sufficient for a government
ethics program.<br>
<br>
Prof. Kevin Weinfurt of Duke University says that the goals of
disclosure are often unclear. That is too often true in government
ethics. Ethics training classes and online materials should go
beyond listing the disclosure requirements and make it clear what
disclosure is for, and that it is a minimum requirement that is only
one part of dealing responsibly with conflicts.<br>
<br>
One limitation of disclosure is that you can't tell from it what is
not being disclosed. As Prof. Clyde Wilcox of Georgetown University
is quoted as saying, "[Disclosure] allows people to wave a wand and
say, 'I am clean,'" when in fact they are not.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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