Confidential Information Provisions, Ethics, and Transparency

In Milwaukee County, according to an article in Sunday's Journal-Sentinel, a county supervisor is seeking to add to the county ethics code a confidential information provision that would not limit the prohibition to what is common in ethics codes: information divulged for someone's benefit.

As I've written before (1 2), this is not a government ethics issue, because there is no conflict between the public interest and the official or employee's personal interest. In fact, there are many situations where divulging confidential information is in the public interest, for example, in the course of blowing the whistle on improper conduct by other officials or employees.

The inappropriateness of the provision to the ethics code is clear from the article's next two sentences:

Most of [the code] addresses conflicts of interest in which a public official uses his or her office for personal gain. Empowering the Ethics Board to probe improper disclosures of confidential matters is important because those could "create a potential liability" for the county, [the sponsoring county supervisor] said.

What does potential liability to the county have to do with government ethics? Conflicts do not generally create potential liabilities, nor does, for example, the acceptance of gifts or nepotism.

It's understandable when politicians who do not understand government ethics get confused over what belongs in an ethics code and what does not. But this county supervisor "led an effort in 2008 to overhaul the [county ethics] code." When someone with this experience and knowledge attempts to add a provision that doesn't belong there, it makes one wonder what is going on.

This issue arose when another county supervisor disclosed the county administrator for public health's comments about housing violent male psychiatric patients with vulnerable female patients. The disclosure came "in the context of a discussion about a federal inspection report that had found multiple instances of patient sexual assaults at the county Mental Health Complex." In other words, the disclosure was appropriate to the occasion, and in no way benefited the supervisor, his family, etc.

The disclosing supervisor said that a rule prohibiting the disclosure of information from closed sessions "could lead to abuse of the county's authority to make legitimate use of closed sessions. State law limits such sessions to discussions of personnel matters, contract negotiations and lawsuits or potential lawsuits. 'It's just one more step to make sure everything's done behind closed doors,' she said. [And she] criticized what she said was a recent trend of dealing with issues in closed meetings that should be held in public. 'They are actually clamping down on the public's right to know,' she said."

According to the article, another county supervisor said that making disclosure a punishable ethics offense "could stifle discussion of important public issues. It may also lead to improperly labeling documents confidential to avoid public scrutiny."

In other words, especially in combination with abuse of the closed meeting rule, which is rampant, strict confidential information rules seriously undermine transparency. Could anyone doubt that, in a discussion of violence in a county mental institution, the remarks of a mental health official are both relevant and important? Just because they were made in a closed session does not make them worthy of being confidential, but this is usually how "confidential information" is defined in ethics code, if the term is defined at all.

The bottom line is that not only are confidential information provisions, without the requirement of the information benefiting someone, inappropriate for an ethics code and ethics commission jurisdiction, but they conflict with the public interest in transparency.

Robert Wechsler
Director of Research-Retired, City Ethics

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