Confidential Information Provisions, Ethics, and Transparency
In Milwaukee County, according to <a href="http://www.jsonline.com/news/milwaukee/103255159.html" target="”_blank”">an
article in Sunday's <i>Journal-Sentinel</i></a>, a county supervisor is
seeking to add to <a href="http://www.milwaukeecounty.org/ETHICSBOARD8460.htm" target="”_blank”">the county
ethics code</a> a confidential information provision that would not
limit the prohibition to what is common in ethics codes: information divulged for someone's benefit.<br>
<br>
As I've written before (<a href="http://www.cityethics.org/content/divulging-confidential-information-no…; target="”_blank”">1</a>
<a href="http://www.cityethics.org/content/its-important-make-sure-confidential-…; target="”_blank”">2</a>),
this is not a government ethics issue, because there is no conflict
between the public interest and the official or employee's personal
interest. In fact, there are many situations where divulging
confidential information is in the public interest, for example, in the
course of blowing the whistle on improper conduct by other officials or
employees.<br>
<br>
The inappropriateness of the provision to the ethics code is clear from
the article's next two sentences:<ul>
Most of [the code] addresses conflicts of interest in which a public
official uses his or her office for personal gain. Empowering the
Ethics Board to probe improper disclosures of confidential matters is
important because those could "create a potential liability" for the
county, [the sponsoring county supervisor] said.</ul>
What does potential liability to the county have to do with government
ethics? Conflicts do not generally create potential liabilities, nor does, for example, the
acceptance of gifts or nepotism.<br>
<br>
It's understandable when politicians who do not understand government
ethics get confused over what belongs in an ethics code and what does
not. But this county supervisor "led an effort in 2008 to overhaul the
[county ethics] code." When someone with this experience and knowledge
attempts to add a provision that doesn't belong there, it
makes one wonder what is going on.<br>
<br>
This issue arose when another county supervisor disclosed the county
administrator for public health's comments about housing violent male
psychiatric patients with vulnerable female patients. The disclosure
came "in the context of a discussion about a federal inspection report
that had found multiple instances of patient sexual assaults at the
county Mental Health Complex." In other words, the disclosure was
appropriate to the occasion, and in no way benefited the supervisor, his family, etc.<br>
<br>
The disclosing supervisor said that a rule prohibiting the disclosure
of information from closed sessions "could lead to abuse of the
county's authority to make legitimate use of closed sessions. State law
limits such sessions to discussions of personnel matters, contract
negotiations and lawsuits or potential lawsuits. 'It's just one more
step to make sure everything's done behind closed doors,' she said.
[And she] criticized what she said was a recent trend of dealing with
issues in closed meetings that should be held in public. 'They are
actually clamping down on the public's right to know,' she said."<br>
<br>
According to the article, another county supervisor said that making
disclosure a punishable ethics offense "could stifle discussion of
important public issues. It may also lead to improperly labeling
documents confidential to avoid public scrutiny."<br>
<br>
In other words, especially in combination with abuse of the closed
meeting rule, which is rampant, strict confidential information rules
seriously undermine transparency. Could anyone doubt that, in a
discussion of violence in a county mental institution, the remarks of a
mental health official are both relevant and important? Just because
they were made in a closed session does not make them worthy of being
confidential, but this is usually how "confidential information" is
defined in ethics code, if the term is defined at all.<br>
<br>
The bottom line is that not only are confidential information
provisions, without the requirement of the information benefiting
someone, inappropriate for an ethics code and ethics commission
jurisdiction, but they conflict with the public interest in
transparency.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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