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Open vs. Confidential Ethics Commission Proceedings

The Model Code makes Ethics Commission investigations confidential. However, upon a finding of probable cause, Ethics Commission proceedings become public. In addition, disclosure statements, advisory opinions, waiver requests, and documents filed in Ethics Commission proceedings are public.

Please share your opinions on and experiences with the confidentiality vs public nature of Ethics Commission proceedings and documents. What problems are created by each, and why are each of them important? How does a community balance the two?

217. Public Inspection of Records; Public Access to Meetings.

1. Unless otherwise stated in this code, the records of the Ethics Commission will be available for public inspection. Records available for public inspection include all disclosure statements, advisory opinions (with names and other necessary details omitted to protect anonymity, unless the requesting party states otherwise in writing), all requests for waivers and related papers and decisions, and all papers filed and all decisions made in an Ethics Commission proceeding after a finding, formally or presumed, of probable cause.

2. After a finding, formally or presumed, of probable cause, all hearings before the Ethics Commission concerning alleged misconduct will be open to the public. All meetings, or parts of meetings, of the Ethics Commission that are not directly related to an investigation or other consideration of complaints prior to a finding of probable cause will be open to the public.

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Robert Wechsler says:

Transparency is central to ethical government. It serves not only to further citizen participation and other important democratic processes, but it also deals with one of the most basic conflicts of interest: the conflict between an official's desire to keep his or her words and actions secret vs. the public's need (and right) to know.

Although court proceedings (including criminal proceedings, although not investigations themselves, only the fact that an investigation is in progress) are public, ethics proceedings generally are not. The stated goal of keeping them secret is to protect the reputation of the accused. But someone who brings an ethics complaint is free to attack the accused publicly. In addition, keeping proceedings secret does not discriminate between hiding the complainant's accusations and the respondent's defenses.

There are other reasons to keep ethics proceedings secret. One is that, thereby, ethics commissions are not forced to take responsibility for dismissing complaints (at least if the parties preserve the secrecy), since people won't know, for example, that an EC dominated by a party regularly dismisses complaints against members of that party.

Why is it that people who pass ethics proceeding secrecy rules do not attempt to apply the same rules to court proceedings? This is a question I think such people should be asked.

In my model code, I have made the proceedings secret until probable cause is found, because this is the norm. But I think this provision should be debated at length, and I hope it will be here, so that local governments will have guidance on this difficult issue.

Robert Wechsler
Director of Research, City Ethics