Professional Confidentiality and the Disclosure of Conflicts
<a href="http://csbj.com/hazlehurst/2009/08/11/mayor-officially-ethical/" target="”_blank”">John
Hazlehurst's observation</a> on the Colorado Springs ethics
commission's dismissal of a complaint against the mayor is valuable
enough to deserve a separate blog post, rather than a mere update to <a href="http://www.cityethics.org/node/747" target="”_blank”">my original post </a>on
this topic.<br>
<br>
An important issue involved the mayor's insistence that, as an
investment adviser, he could not disclose the names of his clients.
This means that, effectively, he could not fulfill his city's conflict
of interest requirements; his professional confidentiality obligation overrode the law.<br>
<br>
Hazlehurst takes a strong position on this: "The Mayor can
either serve his employer, or the people of this city. He can’t
just
walk a tightrope, and pretend to serve both. If his employment is
of
such a nature that he can’t reveal possibly conflictual actions, he
should resign either from UBS or from elected office."<br>
<br>
Lawyer, doctor, clergy, psychotherapist, they all have confidentiality
requirements as strict or, more likely, stricter than an investment
adviser. Would Hazlehurst's position apply to them?<br>
<br>
And since conflicts do not necessarily end the moment someone either
leaves a job or drops a client, would doing either of these solve the
problem? If a lawyer feels unable to disclose his or her recent
representation of someone appearing before his commission, can that
lawyer serve on that commission?<br>
<br>
One thing that officials often ignore when they say they cannot
disclose a relationship is that confidentiality requirements are one-way streets. That is, the client controls the confidentiality, not the
professional. If the official finds himself in a position where he is
supposed to disclose a conflict, he can ask the client if he may reveal
the relationship.<br>
<br>
And since the client is presumably seeking something from the local
government, the client has an obligation to reveal the relationship, as
well, although this obligation is rarely stated in ethics codes (see
the City Ethics Model Code's <a href="http://www.cityethics.org/mc/full#TOC56" target="”_blank”">applicant disclosure
provision</a>).<br>
<br>
If the applicant refuses to disclose the conflict or allow the official
to disclose it, what is the official to do? Quitting the non-government job or dropping the
client won't solve the problem.<br>
<br>
Recusal is the usual way of dealing with a conflict, but when an official recuses himself or herself, an explanation is often
required, or when it is not required, people often demand one. However,
the official could say that he or she is not permitted by professional
rules of ethics to disclose the relationship behind his or her recusal.
As long as the official fully withdraws, that might be considered sufficient under the circumstances.<br>
<br>
The inability to disclose a conflicting relationship, and the client's
refusal to disclose it, puts an even greater burden on an official.
That is, since the conflict cannot be disclosed and, therefore,
discussed publicly, the official should withdraw from matters where
there would be any appearance of impropriety if the relationship were
disclosed. And if the client chooses to seek contracts or zoning
changes or whatever without disclosure of a possible conflict, the
official should drop the client, or resign.<br>
<br>
Where someone has more than a couple of clients where the relationship
is likely to create a conflict, and those clients do not want the
relationship disclosed (such a request can be made in advance of a
conflict actually occurring), the official should, as Hazlehurst
suggests, resign from the local government, or not run for office or
take a government position in the first place.<br>
<br>
This is an important area of conflict of interest decision-making for which ethics codes do not generally provide guidance. It should
be included in ethics training, and emphasized where training is given
to candidates and new officials.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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