The Limits of Disclosure

Elisabeth Rosenthal wrote an excellent op-ed piece for the New York Times last Sunday. It was about disclosure, more specifically about the way disclosure sometimes neither leads to more transparency, nor prevents what it is intended to prevent. In the government ethics situation, that would mean preventing misconduct.

Technical compliance, especially with the limited disclosure rules of local ethics codes, often provides little important information. We might know that an official owns more than 5% of Hometown Developers, but we don't know who owns the rest. Therefore, when one of the other owners comes before the official's board, there is no record of a special relationship between the owner and the official.

Similarly, annual financial disclosure requirements rarely include the offical's business associates or the employers or financial interests of close family members, including children, siblings, and parents. Sometimes even information about one's spouse.

Of course, no disclosure form says that you cannot make disclosures that are not required by law. If you were to list, on separate sheets, the interests of your immediate family members, at least the ones that have to do with your city or county, no none would object. In fact, you would likely be lauded for doing this. And yet how many officials do it? Put another way, how many high-level officials take a leadership role in going beyond the law to set out in their annual filing all relationships and interests that might give rise to an appearance of impropriety in the coming year?

Rosenthal notes that "disclosure requirements merely get information onto the table, but themselves demand no further action." She feels that disclosure has often become "an end-point in the chain of responsibility, an act of compliance with the letter of the law rather than the spirit of transparency."

This is true of the many local governments that require only disclosure of conflicts or gifts, while allowing officials to accept gifts and act with conflicts. Knowing they would have to let the public know they are acting in their personal interest would, one would think, deter officials from accepting gifts or acting with conflicts. But when the law says disclosure is enough, the officials can defend their conduct by saying that they complied with the law. This leaves the public grumbling that these guys write the laws to help themselves. In other words, officials act doubly in their personal interests.

One problem with the disclosure-only approach is that government ethics is not a compliance program. It is a program based on training and advice, so that officials can act in such a way as to preserve the public's trust in the government. And there is enforcement if officials fail to deal responsibly with their conflicts. This is very different from compliance.

Disclosure followed by legal misconduct undermines the public's trust. Therefore, it is not sufficient for a government ethics program.

Prof. Kevin Weinfurt of Duke University says that the goals of disclosure are often unclear. That is too often true in government ethics. Ethics training classes and online materials should go beyond listing the disclosure requirements and make it clear what disclosure is for, and that it is a minimum requirement that is only one part of dealing responsibly with conflicts.

One limitation of disclosure is that you can't tell from it what is not being disclosed. As Prof. Clyde Wilcox of Georgetown University is quoted as saying, "[Disclosure] allows people to wave a wand and say, 'I am clean,'" when in fact they are not.

Robert Wechsler
Director of Research-Retired, City Ethics

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