The Public Nature of Government Ethics Advice
There is <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Gov…; target="”_blank”">a section of my new book <i>Local Government Ethics Programs</i></a> (click and scroll down to subsection 9) on the need for more transparency in the provision of ethics
advice. What I just realized is that this is another
government ethics topic on which Stephen Colbert, who has <a href="http://www.cityethics.org/content/joke-heart-local-government-ethics-pr…; target="”_blank”">enlightened
the U.S. on the absurdity of the Super PAC</a>, has given us a lesson.<br>
<br>
In a conversation with Trevor Potter, who was John McCain's general
counsel and acted as Stephen Colbert's Super PAC counsel, and Bob
Bauer, the Obama campaign's general counsel, <a href="http://www.law.virginia.edu/html/alumni/uvalawyer/spr12/conversation.ht…; target="”_blank”">conducted
by <i>UVA Lawyer</i></a> (both attorneys graduated from University of
Virginia Law School), Potter said that he really has been Colbert's
lawyer. It's not staged: "[U]nless I’m supposed to have a
particular role, like with the Jon Stewart handoff, he doesn’t tip
his hat about the questions in advance. He wants his viewers to hear
what he can and can’t do with his Super PAC."<br>
<br>
What the audience has been watching is government ethics advice actually being
given, in public rather than in private. When the goal is to educate
the public, public ethics advice is not only acceptable, it is
appropriate and it is beneficial. It can even be entertaining.<br>
<br>
So what is the goal when public attorneys or ethics officers provide government ethics advice to public
officials? The goal usually isn't education. However, there are many
instances where it should be. For example, when a city attorney or
ethics officer tells an official to withdraw from a matter, it is
appropriate and beneficial, both to the public directly, and
indirectly through the message it sends to other officials, to
publicly state, on the record, that the official received advice to
withdraw from the matter, and the basis for this advice.<br>
<br>
More commonly, the goal of providing advice to public officials is
to have the officials act within the law and in such a way that there is not an appearance of impropriety.
If the advice was to be provided live on national television or,
let's say, the local community affairs station, no harm would be
done and the attorney would in no way be violating the legal
profession's ethics code. Those watching, if they were not bored to
death, would recognize that the advice they were paying for was
valuable and for the public's benefit. They would see that advice was being given (and taken) so
that their government would act as much as possible in the public
interest rather than in the personal interest of any of its
officials.<br>
<br>
I don't expect to see ethics advice to public
officials provided live on television, radio, or the internet. But
Stephen Colbert has shown that, when the client thinks this is
valuable, it is not only ethical (in legal terms), but highly
beneficial. If a Comedy Network host feels that advice to him should
be public, why shouldn't a government official?<br>
<br>
Looked at the other way, why does a public official feel that advice
on public matters should in any way be private? More specifically,
why does a public official feel that ethics advice should be
private, when it is the private aspect of the conflict situation
that would cause a public problem if the situation became known to the public? A public official's private matters
are private only to the extent they do not conflict with her public
obligations. As soon as a conflict situation arises, the private
matter is no longer simply private. It may seem private, it may feel
private, but it is important that the official recognize (1) that it
is not private, and (2) that she has an obligation to deal
responsibly with the conflict in a public manner.<br>
<br>
That doesn't mean that she should ask that her session with a
government attorney or ethics officer be televised. But it does mean
that it should not be confidential in the way, say, a session with
her doctor should be. The confidentiality of ethics advice should
not be taken for granted, as it usually is. It needs to be openly
debated in light of what is beneficial for the public, in light of
transparency laws, in light of the obligations of public officials,
and in light of Stephen Colbert showing us what publicly
given ethics advice might look like.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959