According to an article on yesterday's Philly.com website [1], 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.)

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.

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.

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.

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.

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.

In short, he made a snap judgment that was arguably correct, but then felt that it might constitute a breach of confidentiality.

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.

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.

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.

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.

See Part 2 of my look at confidentiality rules [2] in local government ethics, which considers the many problems with such rules.

Robert Wechsler
Director of Research, City Ethics

203-230-2548