#CONFIDENTIALITYRULES. . .

ARTICLE | Sep 21, 2015

Transparency vs. Confidentiality

Back in the day, it was all about “sunshine.” It was the disinfectant that would wipe away the haze of machine politics, favoritism, and outright corruption that infected government actions at all levels. A little-known fact is that it was actually Utah, not Florida (aka, The Sunshine State), that adopted the first of the sunshine laws back in 1905.

The favored term now is “transparency.” It’s what the public, leaders, oversight agencies, and others insist upon when government does something perceived to be wrong. Perhaps the largest effort to achieve total transparency now will be placing body cameras on the officers who serve in some 12,000 local police departments.

But transparency isn’t just a standard that gets dusted off and reinvigorated in times of crisis. The value is embedded in the way local governments operate. From procurement to land development to public works to finance, processes are purposefully designed to be open and provide for both resident input and observation.

Transparency is the cultural norm, because it is the essential value for building trust with the public. The more information and details people have about what is happening, the more confidence they have in the organization, even when things go wrong.

Efforts to be transparent will at some point collide with the responsibility to maintain confidentiality. Organizations will feel the tension between meeting the public’s demand for instant answers and perhaps an employee’s right to due process. Or, in the relentless social media coverage, they will have to resist the urge to do damage control by presenting partial facts before the complete investigation is available for public scrutiny.

Maintaining confidentiality can be viewed as a smoke screen. Protecting reputations and rights can appear to be self-serving. Yet, organizations do have to carefully consider their legal as well as ethical obligation to preserve or relent on confidential matters.

The ICMA Approach

Balancing the benefit of transparency while respecting the value of confidentiality has been a tension in how ICMA approaches enforcing the Code of Ethics with members. ICMA’s ethics review process is entirely confidential unless and until the ICMA Executive Board decides to issue a public censure, expel/bar a member, or issue a temporary suspension.

From the moment the story of alleged unethical conduct hits the media to the final decision of the board, ICMA will not comment on whether a member is under investigation. No one beyond the complainant and the ICMA staff involved in processing the case will even know that the matter is under review. If the review ends in a finding that the member violated the Code, but only a private censure is warranted, that decision is a confidential matter.

Only the complainant and state association president will be notified (assuming they are ICMA members). If the review finds that the member didn’t violate the Code, that also remains a confidential matter. Only the member who is the subject of the complaint can break the confidentiality of the process to reveal the outcome.

The absence of public confirmation that a matter is actually under review can cast doubt on the validity of the enforcement process. And lack of certainty around the outcome can do so as well.

Why take this approach then? Two reasons: First of all, the underlying facts supporting the alleged misconduct are not always correct. Almost 40 percent of the cases referred to ICMA are closed.

Second, the potential damage to a professional’s reputation by publicly revealing that he or she is the subject of an ethics complaint, before the investigation has run its course, can be catastrophic.

ICMA’s peer review process is rigorous. At the outset, it presumes that the member did not violate the Code. But it also requires the member to address the allegation and to provide evidence to support his or her position.

It can call into play the resources of a fact-finding committee if needed. At the end of it all, it’s about even in terms of the cases that result in public censure with its public comment and those that end in a private censure.

In the interest of greater transparency, here is a list of private censures issued by ICMA during the past two years. Some details may have been altered so as not to inadvertently reveal an individual’s identity. Members were privately censured for:

  • Driving under the influence (Tenets 2 and 3).
  • Resigning after serving only three months to take the manager position in another community (Tenet 4).
  • Exercising poor judgment in an interaction with a subordinate employee, which raised speculation of a personal relationship with that employee (Tenets 2 and 3).
  • Pleading no-contest to misdemeanor charges of domestic violence (Tenets 2 and 3).
  • Exercising poor judgment during an interaction with a resident (Tenets 2 and 3).
  • Resigning after 16 months to take another position in the same state (Tenet 4).
  • Interfering with an entity’s right to conduct business and the public’s right to access public information (Tenet 3).
  • Failing to be truthful and candid about an employment search when it became a matter of public record (Tenet 3).
  • Serving as an appointed manager and an elected official for a special district (Tenet 7).
  • Engaging in a personal relationship with a subordinate employee for several years and failing to disclose the relationship (Tenets 3 and 12).

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