The Confidentiality of Ethics Proceedings and the Duties This Creates

Confidentiality is a sticky issue in ethics investigations. It appears to be the norm, but many people do not seem to understand why it exists, or what duties it creates.

An interesting confidentiality issue arose recently in Beaufort, South Carolina, according to an article in today’s Beaufort Gazette. A former mayoral candidate filed a complaint against the current mayor with the state Ethics Commission. The city attorney found out about the complaint and told the city council, which put out a press release about the complaint.

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According to the article, “City Councilman Mike Sutton said the council issued its press release because city residents had a right to be kept informed. ‘The question was ... “What was right for the people?”’ he said. ‘Something had to be said.”

An Ethics Commission attorney said that actions for breaking confidentiality cannot be brought against third parties, only against the complainant or the commission (she is quoted as saying that an action could also be brought against the respondent, but the respondent has the right to waive confidentiality).

That’s the legal side of this situation. But what about the ethical side? Doesn’t a lawmaking city council have a responsibility to follow the law even if it’s a third party? Councilman Sutton insisted that something had to be said, but that something did not have to include the fact that a formal complaint had been filed. Stating that an accusation had been made would have given the public sufficient information without breaking the confidentiality rule.

Confidentiality during an investigation is important to protect innocent respondents, as well as to depoliticize the process. Complaints are sometimes filed for the express purpose of embarrassing, harassing, or taking revenge on public officials, often during an election season (and sadly, when accusations become official proceedings, they are taken more seriously by the press as well as by city residents).

Public officials should be the first to recognize this and the last to bring politics into the ethics process. Unfortunately, they are often the first to politicize and the last to recognize and fulfill their responsibilities.

What about the city attorney? Note that he refused to divulge the source of his knowledge of the complaint. He clearly respects confidentiality. But doesn’t a city attorney also have a duty to keep confidential any information about the mayor that he knows should not be disclosed? Instead, he took advantage of the third-party loophole, thereby undermining the spirit of the law, and politicizing a process he knows should not be politicized.

As in so many cases I read about, if the newspaper article is correct, the city attorney was once against the most irresponsible person in this matter, as well as the person with the most knowledge, understanding, and responsibility. What he did was legal, but that does not make it right. A city attorney should be something more than a legal mechanism. He or she should be a responsible city official, respecting the law and refusing to politicize ethical issues.

Robert Wechsler
Director of Research-Retired, City Ethics