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Confidentiality After an Official's Resignation
Tuesday, March 8th, 2011
Robert Wechsler
It is generally agreed that it is best to preserve an ethics
commission's jurisdiction over officials and employees after they quit
or leave office. There are two reasons for this. One, to prevent them
from escaping enforcement by quitting or leaving office. This is
especially important because it can take a long time for information to
come out that an ethics violation might have occurred, and for an
ethics proceeding to be completed. The second reason is to allow for
post-employment restrictions. But many ethics codes ignore this best
practice, and end an ethics commission's jurisdiction the moment an
official leaves office.
This becomes especially problematic when the jurisdiction has strict confidentiality rules, as can be seen in the recent events in White Plains, NY.
According to an article on the lohud.com site, Steven Leventhal, special counsel brought in by the White Plains ethics board to investigate a complaint against the now former mayor, Adam Bradley, said that the board is prohibited from releasing any information about its investigation until formal charges have been filed. Since they apparently were not filed before the mayor resigned (although no one will say one way or the other), the case file is completely closed.
The mayor resigned on February 18, the day after the ethics board held a special meeting on his case. But this was not all that was on his plate. In December he had been convicted on five charges involving domestic abuse, a conviction he said he would appeal.
Here is the language from the White Plains ethics code:
Reasons for Confidentiality
Usually, confidentiality ends when probable cause is found. The reason is that confidentiality is primarily intended to protect officials against frivolous claims. It's hard to call claims frivolous after probable cause has been found and the facts have been investigated for at least seven months without dismissal.
But Leventhal sets out other reasons for confidentiality at this point in the proceedings. According to the lohud.com article, "Because [former mayor] Bradley resigned during the board's preliminary investigation, Leventhal said, it would be both 'terribly unfair' and illegal by charter to release the findings or any formal charges, which at this stage could include hearsay, unsworn testimony and supposition. The probe at this point, he said, is tantamount to a grand-jury hearing, which is also confidential.
"On top of that, Bradley still deserves the rights that could have been afforded him in a potential public hearing — including the right to defend himself, cross-examine witnesses and present evidence. Disclosing the findings after he resigned would deprive him of those rights, he said."
Ethics and Grand Jury Investigations
Leventhal's position is that an ethics investigation is no different than a grand jury investigation, which I strongly disagree with. Grand juries deal primarily with criminal laws, and criminal due process rights apply. Ethics proceedings are administrative, with different evidentiary rules, lower due process rights and, of course, far lower penalties.
Extending Confidentiality Due to Official's Resignation
I also disagree with Leventhal's position on the release of formal charges after the mayor resigned. It would not be unfair to the former mayor, because if formal charges had been made, then confidentiality would have ended and he would have decided to remove himself from the ethics board's jurisdiction knowing this. And if the mayor really wanted to, he could have allowed the ethics board to continue its proceedings, despite the fact that the code allowed the case to be dismissed. And he could have chosen to defend himself, or reached a settlement. It was his choice, and he chose to allow the proceedings to be dismissed.
Punishment, Education, and Cover-Up
The ethics board chair is quoted in a White Plains Patch article as saying that the mayor's resignation is "the ultimate punishment a public official can experience." I agree with this, but with an important caveat. The fact that punishment is not warranted does not mean it is not important for the public to know what happened, especially if the mayor resigned in order to keep it secret. More people than the mayor were involved, and it is important that the public and other officials know what was going on, so that the officials can learn from it and the public can be satisfied that they know what happened. Punishment is not only not everything, it is the least important part of government ethics. Education is far more important. And leaving the sense that there was a cover-up is the worst thing possible.
Confidentiality is not an absolute and it is not fair to the public to treat it as one. Lawyers are trained to treat confidentiality as nearly sacred, but in government ethics it is not even desirable. Even frivolous accusations are quickly shown to be frivolous, which blows up in the face of the accusers. Government ethics is focused on the public interest. Government ethics involves public servants, whose work is public. Confidentiality is about keeping things private. It has a secondary place in government ethics.
What Is Public Should Be Public
Last year, the ethics board did release a report on a former planning board member who stepped down in the middle of an investigation. Leventhal said that investigation was related to the board member's failure to file his ethics disclosure forms, a public document, a distinction he considered important. But what isn't public about the work a public official does? It's not as if the ethics proceeding involved the mayor's domestic abuse. It involved his actions as mayor. These are as public as public can be.
Postscript: Abusing the Confidentiality Provision
An article on the lohud.com site last week shows a way other than resignation in which an official can use a confidentiality provision to protect himself in what I consider to be a completely unwarranted way.
In his ethics proceeding, there was a question about the amount the mayor paid in rent to a developer he had tried to help with government permits. A below-market rent would constitute a gift. In his annual financial disclosure statement, the mayor said he had not received any gifts, but added an asterisk. At the bottom of the page, he wrote, "This answer cannot be fully answered at this time due to the confidentiality provisions of the city's Ethics Code."
Does an ethics investigation mean that an official need not fill out a financial disclosure statement? I don't think so. It's public information, even if it is also evidence in an ethics proceeding. The public has a right to know if the mayor received a gift from the developer.
Robert Wechsler
Director of Research-Retired, City Ethics
---
This becomes especially problematic when the jurisdiction has strict confidentiality rules, as can be seen in the recent events in White Plains, NY.
According to an article on the lohud.com site, Steven Leventhal, special counsel brought in by the White Plains ethics board to investigate a complaint against the now former mayor, Adam Bradley, said that the board is prohibited from releasing any information about its investigation until formal charges have been filed. Since they apparently were not filed before the mayor resigned (although no one will say one way or the other), the case file is completely closed.
The mayor resigned on February 18, the day after the ethics board held a special meeting on his case. But this was not all that was on his plate. In December he had been convicted on five charges involving domestic abuse, a conviction he said he would appeal.
Here is the language from the White Plains ethics code:
-
the complaint, records and other proceedings related
thereto prior to the filing of charges or dismissal of the complaint
are deemed
confidential.
-
Upon a full investigation, if the Board of Ethics
determines after a two third's vote of the total voting membership of
the Board that
a hearing is warranted, the officer or employee who is the subject of
the complaint shall
be served with formal charges.
Reasons for Confidentiality
Usually, confidentiality ends when probable cause is found. The reason is that confidentiality is primarily intended to protect officials against frivolous claims. It's hard to call claims frivolous after probable cause has been found and the facts have been investigated for at least seven months without dismissal.
But Leventhal sets out other reasons for confidentiality at this point in the proceedings. According to the lohud.com article, "Because [former mayor] Bradley resigned during the board's preliminary investigation, Leventhal said, it would be both 'terribly unfair' and illegal by charter to release the findings or any formal charges, which at this stage could include hearsay, unsworn testimony and supposition. The probe at this point, he said, is tantamount to a grand-jury hearing, which is also confidential.
"On top of that, Bradley still deserves the rights that could have been afforded him in a potential public hearing — including the right to defend himself, cross-examine witnesses and present evidence. Disclosing the findings after he resigned would deprive him of those rights, he said."
Ethics and Grand Jury Investigations
Leventhal's position is that an ethics investigation is no different than a grand jury investigation, which I strongly disagree with. Grand juries deal primarily with criminal laws, and criminal due process rights apply. Ethics proceedings are administrative, with different evidentiary rules, lower due process rights and, of course, far lower penalties.
Extending Confidentiality Due to Official's Resignation
I also disagree with Leventhal's position on the release of formal charges after the mayor resigned. It would not be unfair to the former mayor, because if formal charges had been made, then confidentiality would have ended and he would have decided to remove himself from the ethics board's jurisdiction knowing this. And if the mayor really wanted to, he could have allowed the ethics board to continue its proceedings, despite the fact that the code allowed the case to be dismissed. And he could have chosen to defend himself, or reached a settlement. It was his choice, and he chose to allow the proceedings to be dismissed.
Punishment, Education, and Cover-Up
The ethics board chair is quoted in a White Plains Patch article as saying that the mayor's resignation is "the ultimate punishment a public official can experience." I agree with this, but with an important caveat. The fact that punishment is not warranted does not mean it is not important for the public to know what happened, especially if the mayor resigned in order to keep it secret. More people than the mayor were involved, and it is important that the public and other officials know what was going on, so that the officials can learn from it and the public can be satisfied that they know what happened. Punishment is not only not everything, it is the least important part of government ethics. Education is far more important. And leaving the sense that there was a cover-up is the worst thing possible.
Confidentiality is not an absolute and it is not fair to the public to treat it as one. Lawyers are trained to treat confidentiality as nearly sacred, but in government ethics it is not even desirable. Even frivolous accusations are quickly shown to be frivolous, which blows up in the face of the accusers. Government ethics is focused on the public interest. Government ethics involves public servants, whose work is public. Confidentiality is about keeping things private. It has a secondary place in government ethics.
What Is Public Should Be Public
Last year, the ethics board did release a report on a former planning board member who stepped down in the middle of an investigation. Leventhal said that investigation was related to the board member's failure to file his ethics disclosure forms, a public document, a distinction he considered important. But what isn't public about the work a public official does? It's not as if the ethics proceeding involved the mayor's domestic abuse. It involved his actions as mayor. These are as public as public can be.
Postscript: Abusing the Confidentiality Provision
An article on the lohud.com site last week shows a way other than resignation in which an official can use a confidentiality provision to protect himself in what I consider to be a completely unwarranted way.
In his ethics proceeding, there was a question about the amount the mayor paid in rent to a developer he had tried to help with government permits. A below-market rent would constitute a gift. In his annual financial disclosure statement, the mayor said he had not received any gifts, but added an asterisk. At the bottom of the page, he wrote, "This answer cannot be fully answered at this time due to the confidentiality provisions of the city's Ethics Code."
Does an ethics investigation mean that an official need not fill out a financial disclosure statement? I don't think so. It's public information, even if it is also evidence in an ethics proceeding. The public has a right to know if the mayor received a gift from the developer.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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