The head of a newly formed town body that’s charged with fielding written complaints of ethics violations by local public officials, among other important tasks, said Wednesday night that he has a “confidentiality concern” with respect to the idea of those seeking to file a complaint sending communications to New Canaan’s town attorney.
According to Ethics Board Chairman Tucker Clauss, a communication that goes from a complainant to the town attorney is not privileged, just as it’s not privileged if the town attorney then sends it along to someone else.
“Because he’s the town attorney, not the Ethics Board attorney,” Clauss told members of the Town Council at their regular meeting, held in Town Hall.
“And the Ethics Board does not retain any attorneys at that point. So under state law, confidentiality adheres when it comes into the Ethics Board and it stays confidential until there is a probable cause finding, and probable cause proceeds to a public hearing.”
He added: “Notwithstanding the concept of client-attorney privilege, it does not apply in this context.”
The comments came during an update on New Canaan’s Code of Ethics, which is undergoing revision. Part of the Ethics Board’s job is to review that code and recommend changes to the Town Council (input will be had multiple public hearings and from multiple officials, including the Board of Education). The board also is to address written complaints of alleged violations by town officials, volunteers on boards and commissions and municipal employees, including the district.
Ethics Board members include Clauss and Steve Simon, who joined him at the meeting, as well as Secretary Tammie Garner, Peggy Jay and Pat Calanca.
During the meeting, Clauss referred to a suggestion from Town Council member Kathleen Corbet that the town attorney be used “as a screen” to sort whether complaints are appropriate for the Human Resources Department, for example, or Police Department or other body.
“I don’t know how that works,” Clauss said. “The statute you put on the books says that the town attorney receives and sends to the Ethics Board, not that he will sort it out and send to whomever. There is no provision in the enabling ordinance of last year to do that. That doesn’t make sense. If the Ethics Board gets a complaint and it is not an ethics complaint, we will dismiss it or we will suggest to the complainant, ‘Hey this is not really an ethics complaint.’ ”
Town Councilman John Engel broached the subject of anonymous filings of ethics complaints.
Clauss responded that a complaint lodged with the Ethics Board is confidential but that the group “vigorously debated” the subject of anonymity and ultimately felt “that anonymous complaints will not be tolerated.”
There are protections for whistleblowers, he said, “but there is no good reason why a town citizen should not be able in the context of a confidential filing to make his or her complaint known.”
“And there are practical obstacles to allowing anonymous filings. One is how do you proceed to investigate? How do you proceed to a public hearing if somebody just drops a dime? And then there is the political and historical element to anonymous behavior. In our history of the last century, we all know when people were allowed anonymity, how many people’s lives were ruined, so while this is a small, small thing—it is not anywhere near the size of what happened last century—this was a concern that all [Ethics Board members] felt that anonymous complaints can be vindictively filed.”
Engel said he did not disagree with that assertion, and sought clarification on what kind of control a complainant has about his or her name getting out during the process of lodging a formal complaint.
Clauss responded that a complaint may be kept confidential “up to the finding probable cause.”
Such a finding would mean the complaint goes on to a public hearing, by state statute, he said.
Ultimately, if someone was not willing to get to that stage, according to Clauss, “you would not file the complaint” in the first place.
A full statement on the Ethics Board’s responsibilities can be found here.