making local government more ethical

Divulging Confidential Information Is Not a Conflict If It Only Benefits Someone Politically

In a recent blog post on the new Michigan Model Local Government Ethics Ordinance, I noted in passing that the model wrongfully made divulging confidential information a violation even when it benefits no one, and that this is not a government ethics issue.

This same issue arose this week in Bainbridge Island (WA), according to an article in the Bainbridge Island Review. A complaint was filed against a council member for leaking confidential information about settlement talks between the city and the Bainbridge Ratepayers Alliance. The complaint was filed by the Ratepayers Alliance.

The relevant ethics code provision reads:
    Covered persons shall not disclose or use confidential or proprietary information obtained in executive session or otherwise in the course of their duties as a result of their position. No covered person shall disclose any such information except as required by law.

There is no problem with such a provision, as long as "confidential or proprietary information" is clearly defined. But this provision does not belong in an ethics code and a violation of it should not be under the jurisdiction of an ethics commission, because it is not a government ethics issue.

The problem here is a confusion about what government ethics is, a confusion that manifests itself in the way a common government ethics provision is changed. Here is the City Model Ethics Code version of the provision, which is close to the norm:
    An official or employee, a former official or employee, a contractor or a consultant may not disclose any confidential information obtained formally or informally as part of his or her work for the city or due to his or her position with the city, or use any such confidential information to further his or her own or any other person or entity's personal or financial interests. [emphasis added]

Taking out the part about furthering personal or financial interests removes the issue from government ethics, which involves conflicts of interest. Divulging information for political purposes is, like other things officials do for political purposes, outside the scope of an ethics commission's jurisdiction.

But what about campaign finance provisions? Don't they involve political purposes? No, campaign finance provisions deal with the appearance or fact of influencing elected officials by giving them legal gifts. There is a conflict between the public interest in having officials make impartial decisions rather than giving preference to those who give them large gifts, and this interest conflicts with elected officials' interest in getting large, secret contributions. This is why campaign finance provisions deal both with the size and the transparency of campaign contributions, especially from those doing business with the local government or having an interest in its decisions.

The public's principal interest in confidential information, as seen in freedom of information and sunshine laws, is to have as little government information as possible be secret. However, when information needs to be keep secret – especially during deals, negotiations, or litigation – the public interest is in preventing officials with access to that information from using it to their benefit or for the benefit of their families, friends, and business associates.

Robert Wechsler
Director of Research, City Ethics

Jack Marshall (not verified) says:

I love the blog, Robert, but boy, this comment leaves me cold. The duty of confidentiality is separate from the duty of loyalty, though they are related. Your distinction about divulging information for "political purposes" as opposed to "personal gain" is specious at best. Obviously the information is being leaked for a reason, and somebody benefits because their purposes are being served. I don't see your distinction between personal, political and financial here. If I divulge a confidence to undermine a bill I oppose, or an official I need discredited, or to help a project I support, that's still a "benefit" to me.

But worst of all, once I let a confidence out, I have lost control of it, to my government's peril. My duty isn't just to avoid conflicts; it is to protect the confidence. If I divulge it for ANY purpose, I have violated that duty. And it's still a government ethics violation.

Robert Wechsler says:

Our political system assumes that politicians will act not only in the public interest, but also in their personal and partisan political interests, as damaging as that often is. This leaves me cold, too, but this is the way it is.

Additionally, if in an ethics code, political benefits were to be added to personal and financial benefits, an ethics commission would be inundated with complaints from political opponents. I don't see this as workable. Political squabbles should be kept out of a government ethics program as much as possible.

Employees who disclose confidential information for political purposes should be disciplined by their superiors. But with elected officials, it's one of the things that should be considered in voting for the individual and the party, if the party accepts such behavior.

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