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Penalizing Ethics Proceeding Transparency
Friday, April 1st, 2011
Robert Wechsler
Transparency is one of the most controversial aspects of government
ethics. It's so controversial that it is rarely
discussed in terms of transparency. It is almost always discussed in terms of
confidentiality, which is rarefly referred to by its popular name: secrecy. This careful use of words leads people to devalue transparency.
The first statement in any discussion of transparency in government ethics should be that transparency is one of the three areas of government ethics (the other two being conflicts and campaign finance). But it is never the first statement. In fact, this fact is rarely mentioned.
If transparency is an essential part of government ethics, it should be the default position. In other words, unless there are very serious reasons to limit transparency, government ethics proceedings should be transparent. The First Amendment's free speech rights also need to be taken into account. When someone files a complaint, there has to be a serious reason to limit his right to speak openly about his complaint.
The principal subject of this post is, What do you do if a complainant violates an ethics proceeding confidentiality rule? What penalty, if any, is appropriate?
The inspiration for this post is a decision by the Stamford (CT) board of ethics to modify the complaint form to advise complainants that publicizing a complaint prior to a finding of probable cause may cause the board of ethics to dismiss the complaint "for that reason alone." The board of ethics reconfirmed its decision this week, according to an article in the Stamford Advocate.
The Problems with a Dismissal Penalty
There are a few problems with a dismissal penalty. First, it encourages leaking rather than direct statement. An ethics board would be hard pressed to prove that the leak came from the complainant. Direct statement is, however, much preferable to leaking.
Second, it might mean the dismissal of a perfectly good complaint, and this would help the respondent more than hurt the complainant. And, most important, it would do nothing to further public trust in the ethics process.
If an ethics commission has the right to initiate an ethics complaint itself (which is not the case in Stamford), then the dismissal could be immediately followed by the commission taking the complaint as its own. The dismissal would, then, be purely symbolic.
Third, although in the Second Circuit (Stamford's circuit), it has been found, in a judicial ethics case, that it is constitutional to prohibit a complainant from mentioning the filing of the complaint (although not from making public all the allegations made in the complaint), this is not true in many other circuits. Therefore, there are First Amendment limitations on penalizing a complainant for bringing transparency to an ethics proceeding (see my blog post on the case law).
Fourth, after all is said and done, the complainant who merely wants to hurt an official's reputation will have done the damage. The dismissal will be due not to the quality of the complaint, but to the complainant's exercise of what he will insist is his First Amendment right, so only the ethics process will look bad. Only the ethics commission will be hurt by the penalty.
And if the complainant simply couldn't keep it under his hat, all he has to do is file another complaint with the same allegations, but not tell anyone this time. The result would be that the ethics process will look bad and, meanwhile, a secret ethics process will go forward. When probable cause is found and it become public, it will look like all the ethics commission wanted was to keep the matter under wraps. Secrecy is not what an ethics commission wants to be known for.
Another Possible Penalty
An alternative penalty is to make disclosure of a complaint an ethics penalty. By filing a complaint, a complainant puts herself under the ethics commission's jurisdiction and agrees to follow its rules. If it breaks a rule, that could be dealt with in an ethics proceeding, and the complainant could be fined. This would not solve the First Amendment issues, but at least it would let the original complaint move forward if it had justification.
The Arguments for Secrecy
An Advocate editor defended transparency in a very succinct manner, "Democracy is messy, transparency is messy, but the alternatives are chilling." The alternative is that people will not trust an ethics process that goes on behind closed doors, especially when the ethics board is appointed by city officials, placing a conflict at the center of what is really a conflict board. When such a conflict exists, it is important for an ethics commission to do everything it can to win the public's trust.
What are the arguments for secrecy? Preserving an official's reputation is not a good one, because it can be attacked without an ethics process existing (only then the process will be raking the official's reputation through the news media and blogosphere), and because the ethics process is the best way for an official to have his reputation fairly determined, at least with respect to the conduct involved.
The best argument, preventing the use of the ethics process as a negative campaign tactic, can be dealt with by a rule preventing the filing of complaints within so many days before an election.
A Better Rule
If secrecy is to be the rule, I think it is better to limit secrecy only to the very first step in the process, that is, the determination whether a complaint actually states a possible violation. Many, if not most, complaints don't state a possible violation. They accuse officials of behavior that is not covered by an ethics code, things like lying, using drugs, or being mean to a citizen at a public meeting. Publicizing these complaints misuses the ethics process to hurt an official's reputation when no government ethics matter is involved. And dismissal on these grounds should happen quickly, so that very little forbearance is required from the complainant. But even here, if the complainant publicizes the filing of the complaint, he will be the one whose reputation is hurt, and the public will learn that something about government ethics. Otherwise, no one will learn anything.
A Complainant's Obligation
Finally, it should be emphasized that, although from the government ethics point of view, transparency is a good thing, it is not responsible for a complainant who makes use of the ethics process to also use the press and blogosphere to make the same arguments. One of the advantages of a good government ethics program is that it deals with ethics matters in a fair and responsible manner, so that they are not turned into scandals by people who don't care about being fair and don't really understand government ethics. If you agree that it is better to use a fair and responsible process, why not let that process deal with the matter exclusively?
In other words, just because a complainant may have a First Amendment right to take her allegations public, does not mean that she doesn't also have an obligation to let the allegations be dealt with as fairly and responsibly as possible.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The first statement in any discussion of transparency in government ethics should be that transparency is one of the three areas of government ethics (the other two being conflicts and campaign finance). But it is never the first statement. In fact, this fact is rarely mentioned.
If transparency is an essential part of government ethics, it should be the default position. In other words, unless there are very serious reasons to limit transparency, government ethics proceedings should be transparent. The First Amendment's free speech rights also need to be taken into account. When someone files a complaint, there has to be a serious reason to limit his right to speak openly about his complaint.
The principal subject of this post is, What do you do if a complainant violates an ethics proceeding confidentiality rule? What penalty, if any, is appropriate?
The inspiration for this post is a decision by the Stamford (CT) board of ethics to modify the complaint form to advise complainants that publicizing a complaint prior to a finding of probable cause may cause the board of ethics to dismiss the complaint "for that reason alone." The board of ethics reconfirmed its decision this week, according to an article in the Stamford Advocate.
The Problems with a Dismissal Penalty
There are a few problems with a dismissal penalty. First, it encourages leaking rather than direct statement. An ethics board would be hard pressed to prove that the leak came from the complainant. Direct statement is, however, much preferable to leaking.
Second, it might mean the dismissal of a perfectly good complaint, and this would help the respondent more than hurt the complainant. And, most important, it would do nothing to further public trust in the ethics process.
If an ethics commission has the right to initiate an ethics complaint itself (which is not the case in Stamford), then the dismissal could be immediately followed by the commission taking the complaint as its own. The dismissal would, then, be purely symbolic.
Third, although in the Second Circuit (Stamford's circuit), it has been found, in a judicial ethics case, that it is constitutional to prohibit a complainant from mentioning the filing of the complaint (although not from making public all the allegations made in the complaint), this is not true in many other circuits. Therefore, there are First Amendment limitations on penalizing a complainant for bringing transparency to an ethics proceeding (see my blog post on the case law).
Fourth, after all is said and done, the complainant who merely wants to hurt an official's reputation will have done the damage. The dismissal will be due not to the quality of the complaint, but to the complainant's exercise of what he will insist is his First Amendment right, so only the ethics process will look bad. Only the ethics commission will be hurt by the penalty.
And if the complainant simply couldn't keep it under his hat, all he has to do is file another complaint with the same allegations, but not tell anyone this time. The result would be that the ethics process will look bad and, meanwhile, a secret ethics process will go forward. When probable cause is found and it become public, it will look like all the ethics commission wanted was to keep the matter under wraps. Secrecy is not what an ethics commission wants to be known for.
Another Possible Penalty
An alternative penalty is to make disclosure of a complaint an ethics penalty. By filing a complaint, a complainant puts herself under the ethics commission's jurisdiction and agrees to follow its rules. If it breaks a rule, that could be dealt with in an ethics proceeding, and the complainant could be fined. This would not solve the First Amendment issues, but at least it would let the original complaint move forward if it had justification.
The Arguments for Secrecy
An Advocate editor defended transparency in a very succinct manner, "Democracy is messy, transparency is messy, but the alternatives are chilling." The alternative is that people will not trust an ethics process that goes on behind closed doors, especially when the ethics board is appointed by city officials, placing a conflict at the center of what is really a conflict board. When such a conflict exists, it is important for an ethics commission to do everything it can to win the public's trust.
What are the arguments for secrecy? Preserving an official's reputation is not a good one, because it can be attacked without an ethics process existing (only then the process will be raking the official's reputation through the news media and blogosphere), and because the ethics process is the best way for an official to have his reputation fairly determined, at least with respect to the conduct involved.
The best argument, preventing the use of the ethics process as a negative campaign tactic, can be dealt with by a rule preventing the filing of complaints within so many days before an election.
A Better Rule
If secrecy is to be the rule, I think it is better to limit secrecy only to the very first step in the process, that is, the determination whether a complaint actually states a possible violation. Many, if not most, complaints don't state a possible violation. They accuse officials of behavior that is not covered by an ethics code, things like lying, using drugs, or being mean to a citizen at a public meeting. Publicizing these complaints misuses the ethics process to hurt an official's reputation when no government ethics matter is involved. And dismissal on these grounds should happen quickly, so that very little forbearance is required from the complainant. But even here, if the complainant publicizes the filing of the complaint, he will be the one whose reputation is hurt, and the public will learn that something about government ethics. Otherwise, no one will learn anything.
A Complainant's Obligation
Finally, it should be emphasized that, although from the government ethics point of view, transparency is a good thing, it is not responsible for a complainant who makes use of the ethics process to also use the press and blogosphere to make the same arguments. One of the advantages of a good government ethics program is that it deals with ethics matters in a fair and responsible manner, so that they are not turned into scandals by people who don't care about being fair and don't really understand government ethics. If you agree that it is better to use a fair and responsible process, why not let that process deal with the matter exclusively?
In other words, just because a complainant may have a First Amendment right to take her allegations public, does not mean that she doesn't also have an obligation to let the allegations be dealt with as fairly and responsibly as possible.
Robert Wechsler
Director of Research-Retired, City Ethics
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