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The Public Nature of Government Ethics Advice
Tuesday, June 19th, 2012
Robert Wechsler
There is a section of my new book Local Government Ethics Programs (click and scroll down to subsection 9) on the need for more transparency in the provision of ethics
advice. What I just realized is that this is another
government ethics topic on which Stephen Colbert, who has enlightened
the U.S. on the absurdity of the Super PAC, has given us a lesson.
In a conversation with Trevor Potter, who was John McCain's general counsel and acted as Stephen Colbert's Super PAC counsel, and Bob Bauer, the Obama campaign's general counsel, conducted by UVA Lawyer (both attorneys graduated from University of Virginia Law School), Potter said that he really has been Colbert's lawyer. It's not staged: "[U]nless I’m supposed to have a particular role, like with the Jon Stewart handoff, he doesn’t tip his hat about the questions in advance. He wants his viewers to hear what he can and can’t do with his Super PAC."
What the audience has been watching is government ethics advice actually being given, in public rather than in private. When the goal is to educate the public, public ethics advice is not only acceptable, it is appropriate and it is beneficial. It can even be entertaining.
So what is the goal when public attorneys or ethics officers provide government ethics advice to public officials? The goal usually isn't education. However, there are many instances where it should be. For example, when a city attorney or ethics officer tells an official to withdraw from a matter, it is appropriate and beneficial, both to the public directly, and indirectly through the message it sends to other officials, to publicly state, on the record, that the official received advice to withdraw from the matter, and the basis for this advice.
More commonly, the goal of providing advice to public officials is to have the officials act within the law and in such a way that there is not an appearance of impropriety. If the advice was to be provided live on national television or, let's say, the local community affairs station, no harm would be done and the attorney would in no way be violating the legal profession's ethics code. Those watching, if they were not bored to death, would recognize that the advice they were paying for was valuable and for the public's benefit. They would see that advice was being given (and taken) so that their government would act as much as possible in the public interest rather than in the personal interest of any of its officials.
I don't expect to see ethics advice to public officials provided live on television, radio, or the internet. But Stephen Colbert has shown that, when the client thinks this is valuable, it is not only ethical (in legal terms), but highly beneficial. If a Comedy Network host feels that advice to him should be public, why shouldn't a government official?
Looked at the other way, why does a public official feel that advice on public matters should in any way be private? More specifically, why does a public official feel that ethics advice should be private, when it is the private aspect of the conflict situation that would cause a public problem if the situation became known to the public? A public official's private matters are private only to the extent they do not conflict with her public obligations. As soon as a conflict situation arises, the private matter is no longer simply private. It may seem private, it may feel private, but it is important that the official recognize (1) that it is not private, and (2) that she has an obligation to deal responsibly with the conflict in a public manner.
That doesn't mean that she should ask that her session with a government attorney or ethics officer be televised. But it does mean that it should not be confidential in the way, say, a session with her doctor should be. The confidentiality of ethics advice should not be taken for granted, as it usually is. It needs to be openly debated in light of what is beneficial for the public, in light of transparency laws, in light of the obligations of public officials, and in light of Stephen Colbert showing us what publicly given ethics advice might look like.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
In a conversation with Trevor Potter, who was John McCain's general counsel and acted as Stephen Colbert's Super PAC counsel, and Bob Bauer, the Obama campaign's general counsel, conducted by UVA Lawyer (both attorneys graduated from University of Virginia Law School), Potter said that he really has been Colbert's lawyer. It's not staged: "[U]nless I’m supposed to have a particular role, like with the Jon Stewart handoff, he doesn’t tip his hat about the questions in advance. He wants his viewers to hear what he can and can’t do with his Super PAC."
What the audience has been watching is government ethics advice actually being given, in public rather than in private. When the goal is to educate the public, public ethics advice is not only acceptable, it is appropriate and it is beneficial. It can even be entertaining.
So what is the goal when public attorneys or ethics officers provide government ethics advice to public officials? The goal usually isn't education. However, there are many instances where it should be. For example, when a city attorney or ethics officer tells an official to withdraw from a matter, it is appropriate and beneficial, both to the public directly, and indirectly through the message it sends to other officials, to publicly state, on the record, that the official received advice to withdraw from the matter, and the basis for this advice.
More commonly, the goal of providing advice to public officials is to have the officials act within the law and in such a way that there is not an appearance of impropriety. If the advice was to be provided live on national television or, let's say, the local community affairs station, no harm would be done and the attorney would in no way be violating the legal profession's ethics code. Those watching, if they were not bored to death, would recognize that the advice they were paying for was valuable and for the public's benefit. They would see that advice was being given (and taken) so that their government would act as much as possible in the public interest rather than in the personal interest of any of its officials.
I don't expect to see ethics advice to public officials provided live on television, radio, or the internet. But Stephen Colbert has shown that, when the client thinks this is valuable, it is not only ethical (in legal terms), but highly beneficial. If a Comedy Network host feels that advice to him should be public, why shouldn't a government official?
Looked at the other way, why does a public official feel that advice on public matters should in any way be private? More specifically, why does a public official feel that ethics advice should be private, when it is the private aspect of the conflict situation that would cause a public problem if the situation became known to the public? A public official's private matters are private only to the extent they do not conflict with her public obligations. As soon as a conflict situation arises, the private matter is no longer simply private. It may seem private, it may feel private, but it is important that the official recognize (1) that it is not private, and (2) that she has an obligation to deal responsibly with the conflict in a public manner.
That doesn't mean that she should ask that her session with a government attorney or ethics officer be televised. But it does mean that it should not be confidential in the way, say, a session with her doctor should be. The confidentiality of ethics advice should not be taken for granted, as it usually is. It needs to be openly debated in light of what is beneficial for the public, in light of transparency laws, in light of the obligations of public officials, and in light of Stephen Colbert showing us what publicly given ethics advice might look like.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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