Attorneys on an EC, and Ethics Proceeding Confidentiality

Lawyers and confidentiality can both be serious obstacles to the effectiveness of a government ethics program. An ethics case in Trumbull, CT provides a good look at how this can happen.

Attorneys on an Ethics Commission
According to an article in the Trumbull Times last week and an article in the Connecticut Post a few days before it, four of the six attorneys on the Trumbull ethics commission had to withdraw from participation in the case due to conflicts of interest. In fact, six of the seven members are attorneys (two of the seven members are alternate members).

Many high-level officials believe that attorneys make the best EC members, because they understand laws, and ethics codes are laws. However, other than government officials, attorneys are the individuals most likely to have conflicts that prevent them from participating in ethics proceedings. An attorney selected by high-level officials is even more likely than the average attorney to be conflicted in an ethics proceeding involving officials (especially the businesspeople and professionals who sit on town boards) or the businesspeople, and their attorneys, who are seeking special benefits from the government.

This case involved the school board chair, the school building committee chair, and the head of the company that manages the town's capital projects. The company is a major government contractor in Trumbull and throughout the state, which means that he deals with lots of lawyers. The conflicts regarding these respondents cut the EC down to three members, which in many jurisdictions would require a unanimous vote for a finding of probable cause, in order to make the proceeding public.

Ethics Proceeding Confidentiality
In fact, the case was dismissed before a public hearing. Under state law, an ethics proceeding is confidential until a finding of probable cause. The result in this case was that everyone, from the town attorney to reporters, was forced to speculate about what the case was about and why it was dismissed.

But one respondent came forward to complain about the filing of the complaint against him and attack the first selectman (effectively the mayor) for having put the town auditor up to filing the complaint.

The result was an odd combination of the respondent going public with some of the facts, while others, such as the subject of the complaint and the reason for its dismissal, still the subject of speculation.

The town can do little about state law (although it could try to get the municipal association to seek an amendment to it). But the town could add an ethics code provision that would make any public statement about an ethics proceeding by a respondent a waiver of confidentiality, at least with respect to the respondent's case.

It is important to recognize that confidentiality exists only to protect the respondent. If the respondent goes public about an ethics proceeding, in any way, he is saying that it is more important for him to be able to talk about the proceeding than it is for him to be protected from having details about the proceeding be made public. He cannot have it both ways, picking and choosing which facts to talk about, while all others are kept confidential. This is unfair to the town's citizens and, in the Trumbull case, especially to the officials he is attacking, who cannot defend themselves without discussing the case.

If respondents want a case to remain confidential, they must accept the fact that speculation will be rampant, and that it is solely their fault. They cannot complain that fingers are unfairly being pointed at them. This is what happens to people who insist on secrecy:  people feel they have something to hide.

When they talk about a case and still insist it be kept confidential, then it is reasonable to believe they are hiding something and using confidentiality both to protect themselves and to attack others. This is very damaging to an ethics program, and far more damaging to the respondent's reputation than the fact that an ethics complaint against them has been dismissed.

Robert Wechsler
Director of Research-Retired, City Ethics

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