Chicago Task Force Second Report IV — Confidentiality and False Information

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Fri, 09/07/2012 - 03:43

City Related

Although the Chicago Ethics Reform Task Force, <a href="http://www.cityethics.org/content/chicago-ethics-task-force-files-first…; target="”_blank”">in
its first report</a>, came out strongly in favor of more
transparency in government, in <a href="http://chicagotonight.wttw.com/sites/default/files/Report%20of%20the%20…; target="”_blank”">its second report</a> it came out strongly in favor of what it calls
"confidentiality" in the ethics program. I call it what the public
calls it: "secrecy."

When an Ethics Proceeding Should Go Public 
It is common for ethics proceedings to become public when probable
cause is found (that is, that there is reason to believe an ethics violation has occurred and should, therefore, be dealt with). Hearings after probable cause has been found are
usually conducted in public. However, the task force believes that,
"under no circumstances should the subject’s name be disclosed until
after the Board makes a final determination regarding the charge at
issue." 
 
In most cases, the subject's name has been disclosed outside of the
ethics process. To the public, it looks like the ethics process is
protecting the public official, and this means that the process is
about protecting the official. This secretive approach to ethics
enforcement is what makes people attack the ethics board for never
having enforced the ethics code against a member of the council.
Whatever the truth is, the appearance is not good. 
 
The task force accepts the argument that confidentiality is required
"to prevent employees and officials from being tainted by
unjustified complaints." It is true that a complaint should be kept
confidential until a preliminary investigation is done and a
probable cause determination made. But the "tainting" of officials
is only one consideration. The task force and the Chicago ethics
code appear to consider it the principal consideration. According to
the ethics code, an ethics board member’s disclosure of information,
even if it benefits no one but the public, is the most serious
problem in all of Chicago’s government (removal from office is the
sole penalty). The task force does not want to change this. 
 
The Real World 
Everyone who designs an ethics program needs to accept the fact
that, especially in this Internet era, frivolous, tactical,
malicious, and anonymous ethics attacks will occur, no matter what
the ethics code says. Leaks will occur, and no one will know who
made them, because they will take the form of anonymous posts and
protected statements to journalists. And sometimes leaks will be
justified, because there is so much false information out there that
will hurt an official more seriously than the truth. 
 
An example of this occurred in Philadelphia, in 2009. The executive
director was fined $500 (in Chicago he would have been removed from
office) for telling a reporter that the board was in the midst of
settlement negotiations with a particular official. He had been
asked about a fine against this official (yes, there had been a
leak), and he said this was not true. Silence would have led the
paper to state that there was a proceeding against an official and
rumors of a fine (that is, a finding of a violation) against him,
which was, as everything is when confidentiality is paramount,
denied by the ethics board. So, off the record, the executive
director told the reporter that the board was in the midst of
settlement negotiations, in order that the reporter would not print
the false story that would have wrongfully "tainted" the official. 
 
This was the right thing to do, but it was against the law. And yet
the executive director was fined, because the law did not recognize
any consideration but confidentiality, and failed to recognize that,
in the real world, false, harmful information is a common reality,
and needs to be dealt with responsibly by an ethics program. Denial
after denial is not necessarily the best way to protect a
respondent, and it is certainly not the best thing for an ethics
program. 
 
The Arguments Against Ethics Proceeding Confidentiality 
I discuss <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Con…; target="”_blank”">this issue at length in my book Local Government Ethics Programs</a>.
Let me just list the arguments against ethics proceeding
confidentiality:<blockquote>

Transparency is a central part of government ethics.
Government officials have a fiduciary duty to the public being prevented from knowing about an ethics proceeding.
First Amendment free speech rulings limit confidentiality rules.
The guidance provided by public ethics proceedings is a very
important consideration.
Confidentiality ignores the fact that an ethics proceeding is a
formal, responsible alternative to dealing with ethics issues in a
partisan, malicious, ignorant manner in articles, letters to the
editor, and blog posts.
Confidentiality supports the poor argument that government ethics is
about character and reputation rather than the responsible handling
of conflicts.
Confidentiality encourages delay by officials.
Confidentiality makes an ethics proceeding seem like a criminal
proceeding, and dealing irresponsibly with a conflict seem like a
criminal offense.
Confidentiality in one area of government ethics can be stretched
into others, such as disclosure.</blockquote>

It is important to recognize that an independent government ethics
program is an alternative to dealing with conflicts of interest in
an irresponsible manner. The best way to end this irresponsible way
of dealing with conflicts is ensure that conflicts are dealt with
responsibly, through reasonable rules, through formal processes, and
transparently. 
 
Penalties for False Information 
The task force does not believe that confidentiality rules alone will
sufficiently protect officials from a world in which the
irresponsible handling of conflicts of interest is often
irresponsibly handled. It also believes it is necessary to have
strong penalties for providing false information in a complaint or
to an ethics investigator. In fact, it wants to make it easier
to penalize someone who gives false information, by changing the
standard from the current "intent to mislead" to "knowingly false."
It refers to the proposed standard as a "a zero-tolerance standard." 
 
The problem is that a zero-tolerance standard scares away
complainants and chills the testimony of witnesses. Most people
don't really understand government ethics, and they lack complete
information or understanding of the facts they do know (or think
they know). It takes a great deal of courage to file a complaint or
provide damning testimony, especially against a superior or a
colleague. It could serious limit or even destroy your career. It
seems like ratting on your colleagues, and will likely ruin your
reputation in the workplace. And the facts usually aren't certain,
not to mention the law. If you have any uncertainty, a
zero-tolerance standard regarding the truth of your statement will
certainly tip the scales and cause you to keep what you know to
yourself. 
 
As with confidentiality, the protection of an official's reputation
must be balanced against other considerations. And one must consider
the fact that, no matter what you do, you cannot protect an
official's reputation. The goal is to find the best way to minimize
damage, and that is an independent government ethics program that
trains, encourages requests for advice, and fairly and transparently
enforces the law when an official chooses not to seek or follow
advice. 
 
Any official who wants to honestly preserve his reputation will ask
for advice whenever a possible conflict situation arises, and will
want to know that there is an independent ethics process to deal
with complaints against him. Why do I stress independence here?
Because if a dependent ethics board dismisses a complaint against an
official, the public will believe that it is because the board
members have a relationship with the official or his colleagues. In
other words, a dependent ethics board appears to the public to be a conflicted ethics board,
and the decisions of an apparently conflicted ethics board, when they seem to
favor an official, are not respected. An official cannot be
vindicated by an apparently conflicted ethics board. He can only say that he has
been vindicated. 
 
Confidential Advice 
The task force also wants to preserve the confidentiality of ethics
advice. It writes, "it is worth limiting the dissemination 
of some information in order to encourage its employees and
officials to contact the Board for advice regarding ethics issues." 
 
On the other hand, the task force feels that the dissemination of
advisory opinions needs to be improved. They "should be 
clearly written and readily available in an organized database that
permits searching across the opinions." In other words, the task force recognizes the guidance that ethics advice provides, not just to the one who asks for it, but to many others. 
 
Of course, business details given as part of a request for ethics
advice should not ordinarily be made public. There is no reason why
they should be, any more than someone's income should be requested
on a financial disclosure form. The details don't matter. What
matters are the relationships: an official works for a
company, or her brother runs a nonprofit, or she owns property near
a proposed subway stop. It doesn't matter how much the company pays
her, whether she gets along with her brother, or who she owns the
property with (unless the others are officials or subway
contractors, or have a special relationship with officials or
subway contractors). 
 
Since guidance is the most important part of a government ethics
program, it should take precedence over other considerations. Advice
should not be kept secret unless there is clear evidence that making
advice available to all officials will cause individual officials
not to seek advice. 
 
Ironically, the more advice is made available to all officials, the
less officials will have to ask for advice, because they can find
situations similar to theirs on the ethics board website. In other
words, transparency will itself lessen the problem of some officials
deciding not to seek advice. 
 
As it is, most non-lawyers do not think about confidentiality
anywhere near as much as lawyers do. Non-lawyer officials don't
expect the level of confidentiality most lawyers feel is necessary.
In fact, if officials were regularly reminded how responsible it is
to seek ethics advice, and how much their constituents and
colleagues appreciate their interest in doing the right thing, most
officials would gladly waive any confidentiality the law might allow
them. 
 
One should be proud of seeking advice about one's public
duties. It's not something many people would want to hide. And yet
most ethics programs do not regularly ask officials to waive their
confidentiality. There is an assumption of confidentiality, except
for formal opinions, which are usually few in number. 
 
As the administrator of the New Haven Democracy Fund, a public
campaign financing program, I gave ethics advice to board members
(New Haven does not have an ethics officer). And not once did a
board member ask for or even about confidentiality. 
 
Confidentiality is an important part of the relationship between a
private attorney and a private client. It is not an important part
of the relationship between a public attorney and the individual
currently filling a public position. People think it is, because
most lawyers don't distinguish between these two situations
(although they learn to do this the first year of law school), but
it is not. In the ethics context, there is an ethics officer instead
of an attorney, and she is not representing anyone. She is giving
ethics advice, an administrative act in an administrative program.
What does this have to do with lawyer-client confidentiality? 
 
Instead of having a secretive ethics program, it would be better to
educate government attorneys and officials alike about why
confidentiality is inappropriate in a government ethics context and
about why it is a good thing for each official, for the government
organization, and for the public to seek professional ethics advice
and have that advice be public. 
 
Sharing of Information Within an Ethics Program 
One area where the ethics task force wants more transparency is in
the sharing of information among the IGs and the ethics board. Even
here, the task force is overly concerned with the official's rights.
It wants to require the IGs to get an official's permission before
asking the ethics board for an advisory opinion. Considering that
the IGs will be investigating matters for the ethics board,
it would seem that they are allies in the same operation (there is a dispute regarding an IG subpoena of the ethics board, but in this matter they are not allies in the same operation). 
 
And there is a serious question whether any official has a right to
confidentiality from the government she works for regarding public
responsibilities. If there is a questionable right to keep such
information from the public, what right could there possibly be to
keep such information from one's own government? 
 
An official who has sought advice and followed it would be happy to
let an investigator know this. This can only make the official look
good and have the investigator look elsewhere. Letting an investigator know about ethics advice would be
problematic only for an official who not only handled a conflict
situation irresponsibly, but did it after being told by the ethics
board how to handle it responsibly. This is important information
for an investigation and should be part of any ethics proceeding
record. The officials who would be less likely to seek an advisory
opinion because it may be available later in an ethics investigation
are those who intend to ignore advice they don't want to hear. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Chicago Task Force Second Report IV — Confidentiality and False Information

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