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Using Confidentiality as a Smokescreen
Friday, May 18th, 2012
Robert Wechsler
It's Attack the Ethics Commission week once again, this time in New
York State. According to an
April 16 article in the Albany Times-Union, a mayor from one
party filed a complaint against the deputy majority leader of the
New York Senate, who is a member of the other party. The complaint
is included below the article, and a statement by the mayor, about
the filing, is quoted.
Fast forward to May 15, when the senate majority leader accused the state ethics commission of leaking the commission's letter to the respondent. What important information could possibly be in the letter to the respondent that was not already in the complaint?
Unfortunately, accusation was not enough for the senate majority leader. According to a post on the Capital Tonight website, he said to reporters, "Whoever from [the ethics commission] is leaking this is committing a crime. They’re committing a crime.” And he said that an investigation of the ethics commission may be warranted.
He also said that the filing of the complaint was "a political stunt" and "all garbage," which makes it clear to the world that he is biased and that he puts the expression of his emotions ahead of any thought of the damage to public trust that comes from publicly sending a message to the ethics commission members who were named by his own party leaders (and possibly by him).
There's more. According to an Associated Press article on April 15, a member of the ethics commission (JCOPE), appointed by the senator minority leader (that is, from the opposite party to the respondent), released a statement that the ethics commission "needs confidentiality to be able to freely and honestly deliberate in private so as to function as an independent and impartial ethics watchdog, capable of living up to its promise and to deter public corruption. Otherwise, let's shut down JCOPE; for public ethics are too important to be a farce or JCOPE to be a political tool." The JCOPE member also said that there should be an investigation.
He is simply wrong. Confidentiality is not required for free and honest deliberation. In fact, when a high-level official is let off by appointees of high-level officials, after discussions behind closed doors, it makes people doubt the decision was free and honest. As for detering public corruption, why would secrecy do a better job of this than transparency? To see a non-professional's response to JCOPE's secrecy, see the Times-Union's April 3 editorial on the subject.
What does the ethics commission say? Well, since everything must be kept secret, it could not comment. However, according to an April 15 Politics on the Hudson blog post, it did say, “Information published in today’s Times Union newspaper is inaccurate and misleading.” Officials and at least one EC member do not want the public to know what is inaccurate and misleading.
What the ethics commission needs to do is explain to the public what is going on. A high-level official has been accused by an attorney of offering to help the attorney get business in exchange for giving the official's son a job. The attorney testified to this under oath in a criminal trial that did not involve the official. In other words, this is a serious, although not necessarily true allegation. Then someone uninvolved in the matter filed the complaint based on the attorney's testimony.
The complainant, not the commission, made the complaint public. This is not a good thing. But there are ways to deal with this problem, and reasons why it cannot be prevented (read the section of my new book on the confidentiality of ethics proceedings for ways of dealing with this problem).
The worst thing you can do is to try to hide a serious allegation behind a smokescreen of confidentiality. Here the smokescreen consists of accusations of criminal behavior, the respondent's colleague trashing of the complaint, calls for an investigation, and talk by an ethics commission member of shutting the commission down over something that did no one any harm. Every person who opened his mouth in this affair is more guilty of undermining trust in the ethics program than whoever leaked the commission's letter to the respondent.
What harm has been done? No confidential information has become public. No new accusations have been made, except against the ethics commission. No one's reputation has been done any harm, except the EC's members and staff.
The best way to deal with the complainant making the complaint public is to acknowledge that it was the wrong thing to do, and leave it at that. If there was a leak that damaged no one, it is important to deal with it responsibly, not to make accusations about how the leak occurred when no one actually knows.
It may be wrong for a complainant to make his complaint public, but it is also wrong for an official to defend his colleague rather than letting the ethics process take its course, and it is wrong for an ethics commission member to speak out publicly rather than letting the ethics commission have a chance to deal with the matter.
The appearance here is of a hypocritical attempt by one of the highest officials in the state to undermine public trust in the ethics commission over what are at worst harmless acts that should be discussed responsibly and officially by the ethics commission, just the way everyone wants ethics complaints to be handled. There has been an over-reaction to a harmless leak, and a breach of confidentiality has been presented as more serious than ethical misconduct. One can't help but wonder why.
What appears to be driving all this is the legislative leadership's resentment of losing its self-regulation of ethics to a semi-independent body. In other words, the senate majority leader sounds like a poor loser trying to get back what he's lost. If I were on the state ethics commission, I would be proposing that all EC members be nominated by civic organizations, not by legislative leaders who do not seem responsible enough not only to self-regulate, but to be involved in any way with the regulation of their ethics.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Fast forward to May 15, when the senate majority leader accused the state ethics commission of leaking the commission's letter to the respondent. What important information could possibly be in the letter to the respondent that was not already in the complaint?
Unfortunately, accusation was not enough for the senate majority leader. According to a post on the Capital Tonight website, he said to reporters, "Whoever from [the ethics commission] is leaking this is committing a crime. They’re committing a crime.” And he said that an investigation of the ethics commission may be warranted.
He also said that the filing of the complaint was "a political stunt" and "all garbage," which makes it clear to the world that he is biased and that he puts the expression of his emotions ahead of any thought of the damage to public trust that comes from publicly sending a message to the ethics commission members who were named by his own party leaders (and possibly by him).
There's more. According to an Associated Press article on April 15, a member of the ethics commission (JCOPE), appointed by the senator minority leader (that is, from the opposite party to the respondent), released a statement that the ethics commission "needs confidentiality to be able to freely and honestly deliberate in private so as to function as an independent and impartial ethics watchdog, capable of living up to its promise and to deter public corruption. Otherwise, let's shut down JCOPE; for public ethics are too important to be a farce or JCOPE to be a political tool." The JCOPE member also said that there should be an investigation.
He is simply wrong. Confidentiality is not required for free and honest deliberation. In fact, when a high-level official is let off by appointees of high-level officials, after discussions behind closed doors, it makes people doubt the decision was free and honest. As for detering public corruption, why would secrecy do a better job of this than transparency? To see a non-professional's response to JCOPE's secrecy, see the Times-Union's April 3 editorial on the subject.
What does the ethics commission say? Well, since everything must be kept secret, it could not comment. However, according to an April 15 Politics on the Hudson blog post, it did say, “Information published in today’s Times Union newspaper is inaccurate and misleading.” Officials and at least one EC member do not want the public to know what is inaccurate and misleading.
What the ethics commission needs to do is explain to the public what is going on. A high-level official has been accused by an attorney of offering to help the attorney get business in exchange for giving the official's son a job. The attorney testified to this under oath in a criminal trial that did not involve the official. In other words, this is a serious, although not necessarily true allegation. Then someone uninvolved in the matter filed the complaint based on the attorney's testimony.
The complainant, not the commission, made the complaint public. This is not a good thing. But there are ways to deal with this problem, and reasons why it cannot be prevented (read the section of my new book on the confidentiality of ethics proceedings for ways of dealing with this problem).
The worst thing you can do is to try to hide a serious allegation behind a smokescreen of confidentiality. Here the smokescreen consists of accusations of criminal behavior, the respondent's colleague trashing of the complaint, calls for an investigation, and talk by an ethics commission member of shutting the commission down over something that did no one any harm. Every person who opened his mouth in this affair is more guilty of undermining trust in the ethics program than whoever leaked the commission's letter to the respondent.
What harm has been done? No confidential information has become public. No new accusations have been made, except against the ethics commission. No one's reputation has been done any harm, except the EC's members and staff.
The best way to deal with the complainant making the complaint public is to acknowledge that it was the wrong thing to do, and leave it at that. If there was a leak that damaged no one, it is important to deal with it responsibly, not to make accusations about how the leak occurred when no one actually knows.
It may be wrong for a complainant to make his complaint public, but it is also wrong for an official to defend his colleague rather than letting the ethics process take its course, and it is wrong for an ethics commission member to speak out publicly rather than letting the ethics commission have a chance to deal with the matter.
The appearance here is of a hypocritical attempt by one of the highest officials in the state to undermine public trust in the ethics commission over what are at worst harmless acts that should be discussed responsibly and officially by the ethics commission, just the way everyone wants ethics complaints to be handled. There has been an over-reaction to a harmless leak, and a breach of confidentiality has been presented as more serious than ethical misconduct. One can't help but wonder why.
What appears to be driving all this is the legislative leadership's resentment of losing its self-regulation of ethics to a semi-independent body. In other words, the senate majority leader sounds like a poor loser trying to get back what he's lost. If I were on the state ethics commission, I would be proposing that all EC members be nominated by civic organizations, not by legislative leaders who do not seem responsible enough not only to self-regulate, but to be involved in any way with the regulation of their ethics.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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