Attacking Those Who Make Ethics Allegations

Several of the women who accused Bill Cosby of sexual misconduct toward them have filed defamation suits, based on his conduct and, especially, on the conduct of his attorneys, who not only stated Cosby's denial of sexual misconduct, but also went on the attack against the accusing women.

This situation reminds me of what sometimes happens when government officials are accused of ethical misconduct. They and their attorneys do not stop at denials. They insist that they are the target of "witch hunts" or personal or partisan animosity. They try to turn the blame on those who filed the complaint and, sometimes, on the ethics commission staff and members (see a blog post on a situation where the latter occurred in Detroit).

There are two important differences between the government officials and Bill Cosby. One, Bill Cosby has no special fiduciary duty to the public. People may be crushed to think that he may not be the characters he played, but there is no question that he represents only himself and that his attorneys represent only him.

Government officials, on the other hand, do have a special fiduciary duty to their communities. They are not only individuals, but also representatives, or appointees of representatives, who make decisions for and spend the money of their community. If they engage in sexual misconduct outside of work, then it is clear that they are acting primarily as individuals. But when they engage in ethical misconduct, when they misuse their office or deal irresponsibly with their conflicts of interest, then they are acting not in their own right, but as government officials. And as government officials, they have an obligation not to attack those who make accusations against them. This is a misuse of office for one's own benefit that, in most cases, is worse than the ethical misconduct they have been accused of. Government officials can deny that they engaged in this misconduct (if indeed they didn't) and they have a right to defend themselves in an ethics proceeding, but that is all.

And their agents have no more right than this. Officials should make this clear to their attorney (government attorneys should already understand their own fiduciary obligations) and publicly counter any inappropriate statement, as well as apologizing to anyone an attorney has attacked on their behalf.

The second important difference is the nature of the accusations. Bill Cosby was faced with allegations of crimes. Attorneys are supposed to zealously defend their clients against criminal allegations. This is not true, in most cases, of ethics allegations (and, in my view, should never be true). Therefore, a government official's attorney should not be able to argue that she was zealously defending her client. And she should recognize that her client's fiduciary obligations control her conduct as well, since she is acting as an official's agent. This should limit her words and actions even further. An attorney for a government official should not take advantage of the fact that she can get away with conduct that it would be inappropriate for her client to engage in.

Defamation suits are not a good way to prevent this sort of misconduct on the part of government officials and their attorneys. In the U.S. it is fortunately very difficult to succeed in such suits, and it is even harder when attorneys are involved. Ethics commissions should intervene when officials or their attorneys go on the attack. They should publicly reprimand them, even if they have no express power to do it officially, and they should ask them not to do it again. They should also consider attacks as aggravating circumstances when they determine sanctions.

Robert Wechsler
Director of Research-Retired, City Ethics