Local Government EC Director Shows How It's Done
According to <a href="http://www.philly.com/philly/news/breaking/20090526_Ethics_board_fines_…; target="”_blank”">an
article on yesterday's Philly.com website</a>, the Philadelphia Board
of Ethics fined its executive director $500 for violating the
confidentiality rules of the city's ethics code. The story is
instructive in how to handle such difficult matters. (Disclosure: I
know and have a lot of respect for both of the individuals in this
matter.)<br>
<br>
The short form of the story is that the executive director gave
confidential information about settlement negotiations to a reporter
off the record. After doing this, he realized that he might have
breached confidentiality. That day, he called counsel for the
respondent in the settlement and told him about the conversation with
the reporter. He also called the board of ethics' chair and told him
the story.<br>
<br>
The board chair had an outside attorney investigate the matter for the
board (pro bono) and a settlement was reached. In addition, the board
is considering having another staff member, not involved in enforcement
(that is, more able to honestly say "I don't know"), handle press relations.<br>
<br>
In general, I don't think it's wise for an ethics commission to sit in
judgment over its members or its staff regarding ethics matters. But
confidentiality in this situation is a special kind of rule, one that
applies primarily to members and staff, so that it is more of an
internal discipline matter.<br>
<br>
I want to applaud the executive director's decision to tell both the
respondent's counsel and the board chair about his conversation with
the reporter. It is especially honorable and unusual because he appears
to have felt justified in saying what he said.<br>
<br>
Being asked a direct question about an investigation puts an
administrator in a tough position. He's not supposed to confirm or
deny, but since the executive director had already denied a particular
fine, a "no comment" alone to a question about an investigation might
be taken as a confirmation of the investigation. So he added to his on
the record "no comment" a confirmation off the record, and told the
reporter that they were in the midst of settlement negotiations. His
goal was to keep the investigation from being made public in the midst
of negotiations.<br>
<br>
In short, he made a snap judgment that was arguably correct, but then
felt that it might constitute a breach of confidentiality.<br>
<br>
It is important for an ethics commission to set high standards such as
this. For one thing, it shows government officials that ethics
enforcement isn't about us versus them. Rules are rules. No one is
above the law.<br>
<br>
It also presents an example of a government official coming forward
rather than being found out. Honest officials should not wait for a
complaint to be filed against them. If they're not sure whether conduct
is ethical, they should ask. If they make a decision on the spur of the
moment, and are concerned that they broke a rule, they should report it
and deal with the consequences.<br>
<br>
It's in their best interest in several ways. One, it displays
integrity. Two, it will likely lessen the penalty. Three, they and
other officials will learn from the case, so that it will be less
likely to happen again. And four, it lessens the cost of the process to
the city.<br>
<br>
The executive director's conversation with the reporter occurred on May
7. The case was investigated and settled in just over two weeks. This
is how it ought to be.<br>
<br>
See <a href="http://www.cityethics.org/content/many-problems-ethics-proceeding-confi…; target="”_blank”">Part 2 of my look at confidentiality rules</a> in local government ethics, which considers the many problems with such rules.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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