Friday, September 20, 2013

Is 'Moderately Honest' Enough?

September 20, 2013, 6:30 a.m.

When Is an Elected Official's Behavior Disqualifying?
Moderation. Avoid extremes; forbear resenting injuries so much as you think they deserve.
-- Benjamin Franklin, The Autobiography of Benjamin Franklin (1791), p. 82
A moderately honest man, with a moderately faithful wife, moderate drinkers both, in a moderately healthy house: that is the true middle-class unit.
-- George Bernard Shaw, Maxims for Revolutionists (1903)


Background. An Iowa City attorney, upon discovering that he had overlooked the need to request documents from opposing counsel in a timely fashion, made a series of mistakes. He predated a letter of request, sent it to opposing counsel, and when called on it lied to the judge. In our recently digitized world, the letter contained code that recorded and revealed the actual date of the letter's creation.

The legal profession holds its members to detailed and high ethical standards embodied in formal rules and normally enforced by a state's supreme court. See Iowa Rules of Professional Conduct. This lawyer's behavior was brought before the Iowa Supreme Court Grievance Commission, which has recommended his license be suspended for six months. The Iowa Supreme Court can modify that, but it is clear he has been severely punished -- with the suspension of his license, the need to resign from his law firm, and the emotional and professional damage as a result of the widespread publicity surrounding the case.

Although there is no doubting, or excusing, the seriousness of the charged offenses, especially when done by someone within the legal profession, it is also notable for what it did not involve. He did not enrich himself at another's expense. He caused no firearm or other violence. He did not disparage anyone's reputation but his own. He didn't engage in sexual misconduct. His actions could not have benefited him in any way -- aside from covering up his forgetfulness. Indeed, his primary motive may have been to better serve his client. Obviously, his actions failed on both counts, as should have been obvious to him ahead of time.

Normally, there the matter would have rested. A local lawyer, caught in an ethical violation, has his license suspended. In a town the size of Iowa City, that is front page news: Adam B. Sullivan,"McGinness could face license suspension; Commission finds School Board member falsified documents, recommends 6-month suspension," Iowa City Press-Citizen, September 5, 2013, p. A1. But that probably would have been the end of it. Actually, for two weeks it was the end of it. No more big stories; no editorials.

But the lawyer was also a school board member. And so gradually some community members, and journalists, began asking themselves, and others, whether it was appropriate to have someone serving on the school board who had been sanctioned for this ethical breach by his professional colleagues. There was an editorial in which the paper acknowledged that, "In the two years he has been in office, [he] has been a good School Board member. In meetings, he consistently brings his A-game and shows he has done his homework. He’s available and approachable to his constituents. And the board benefits often from his training as a lawyer." It did not directly ask for his resignation ("we’re of two minds on whether to call on [him] to resign immediately"), but noted "questions": "Ethics violations raise questions about McGinness," Iowa City Press-Citizen, September 18, 2013, p. A13. And the next day there was a follow-up story on the responses from the school board members and others ("Iowa City Community School Board members aren’t saying much about a fellow board member’s legal woes that first were reported two weeks ago.") Adam B. Sullivan, "Legal woes bring mostly silence; School Board member: McGinness' troubles not connected to district," Iowa City Press-Citizen, September 19, 2013, p. A1. [Photo credit: Nicholas Johnson; not the current board members.]

And that is what prompted this op ed column in the Press-Citizen. It was stimulated by the facts and issues in this case: "Should the fact of a individual's falsifying documents and lying about it, in his private capacity as a lawyer and wholly unrelated to his school board duties, be grounds for his removal from a local school board?" But that is not it's focus, which is directed rather more generally at an exploration of the factors that one might appropriately take into account when evaluating the consequences of behavior that violates community (or professional) norms. If, as George Bernard Shaw is quoted above as suggesting, the advice that we should "be moderate in all things" means that most of us are satisfied to be "moderately honest," how much higher a standard is it reasonable for us to set for our elected officials -- especially with regard to matters unrelated to their official responsibilities?

Working Our Way Through the McGinness Kerfluffle
Nicholas Johnson
Iowa City Press-Citizen
September 20, 2013, p. A7

A Frenchman, asked why he kissed women on the hand, replied, “Because you have to start somewhere.”

But where should one start with the porcupine of prickly issues emerging from the kerfluffle surrounding Jeff McGinness’ difficulties? There’s little about it you’d ever want to kiss anywhere.

In law professor fashion, I’m not offering answers – just questions. McGinness, school board members, citizens, the Press-Citizen -- all of us need to think this through for ourselves.

But I do see some issues.

How should we go about judging what is, and is not, forgivable in others? Are there any normative principles? Or is every case a one-off?

We can start with Iago’s observation, “he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.” Othello, Act 3, Scene 3.

Reputation is a valuable possession. Corporations put a dollar value on goodwill. Spreading falsehoods is defamation. The unnecessary spread of truth can also be harmful. At a minimum, we should think twice before speaking ill of others.

Deserved or not, the publicizing of one’s faults is itself a serious punishment.

The forms of expressing disapproval extend over quite a range. It can take the form of a private thought, a whispered comment, public speech, or newspaper editorial. It can include a demand for resignation, or other punishment.

Suppose the irrefutable facts were that Governor Branstad regularly instructed his drivers to speed. (His Lt. Governor said they have a tight schedule – reminiscent of President Nixon’s explanation to David Frost that, “When the President does it, that means it is not illegal.")

Would it be reasonable, or fair, to try to bring about his removal from office for this behavior? If he also served on a church’s board of trustees, should he be asked to resign?

Does disapproved behavior at work warrant harsher penalties than if done in a bar, or at home?

Is it less bad if no one has suffered any physical, financial or reputational harm – aside from the perpetrator?

Should we distinguish between a weekend problem drinker who’s a top employee, and one who shows up drunk, or drinks at work?

How serious would you consider a coach who covers up a valued player’s crimes? A businessperson who lies about their “need” for a TIF? A professor who raises the failing grade of an athlete to keep him eligible? The university’s administrator who requested she do so? Someone who files taxes late, and predates the check? A church official who moves a pedophile minister to another church? A negligent doctor, threatened with a malpractice suit, who forces his nurse to lie? An administrator who is known to be condescending and mean to store clerks, waiters, and trades persons working on his property?

Should these facts, if sufficiently proven, disqualify those persons from serving on the board of a local, non-profit, volunteer organization?

Does it make a difference whether a financial vice president embezzles funds from her company, or as treasurer of her church? What if she had an off-duty ethical lapse wholly unrelated to the kind of work she does? In short, does it make a difference that the wrongdoing involves a personal quality required by her job? That it was done elsewhere?

How far can one indiscretion fairly be stretched to general conclusions about character? During a trial, unless a party or witness raises character issues, there are limits on the introduction of past derelictions. Of course, in our day-to-day lives we have neither the resources nor the restraints of trial lawyers. One lie may not legitimately make one “a liar.” But we recall “fool me once, shame on you; fool me twice, shame on me.”

Finally, we’re voters. We can vote for or against elected officials for whatever fool reasons we want. But we’ll feel better about ourselves if we’ve been thoughtful and fair in our judgments.
_______________
Nicholas Johnson, a former member of the Iowa City Community School Board, teaches at the University of Iowa College of Law and maintains www.nicholasjohnson.org and FromDC2Iowa.blogspot.com.

# # #

4 comments:

Sam Simon said...

The behavior involved classic cheating. Exactly what a desperate student might try. Teachers, administrators and school board members are expected to know bettter. The really interesting question of our day is the absence of any sense of honor or duty. He should have the integrity to resign If he wants to show repentance and ask forgiveness he can run again. At this point his position is clearly one where he acts on cases of cheating and which he helps set standards. His willingness to force everyone else to deal with his issue and iif he should be removed is another symptom of his character flaw. How sad.

Julie VanDyke said...

One lie may not legitimately make one “a liar.”

If you listen to the case as heard by the IA Supreme Court, there are multiple "lies" recounted by the State against Mr. McGinness, not one.

mms://video2.state.ia.us/judicial/oral_arguments/01222014_Iowa_Supreme_Ct_Atty_Disciplinary_Bd_v_McGinness.wmv

Julie VanDyke said...

Julie Eiesely contacted me well before Jeff's appeal to the State Supreme Court was heard and told some of the inside information/details regarding Mr. McGinness' lie(s) to a judge and alleged a case had been filed on it, she did her best to talk me into taking it to the media. I refused to do it. I refused to play a part in publicly destroying his reputation based on rumors, based on a case which had not been heard yet, though it had apparently been filed. Instead, out of sincere concern and sadness for him and his family, I called him to let him know that I was being pushed to out it to the media but would not do so. I called him so that he would know what "rumors" were being spread about him so that he could prepare himself and his family for what might be coming. When Jeff returned my vm, I told him I did not want to know if he had done it or anything else about it. I told him I had called (left a vm about it with a request that he call me back) because if I was in his shoes that is what I would want for myself and my family = to know what was being said so that I could prepare myself and my family for what was to come. When he returned my call, I asked him point blank if he was recording the call. I did so because Mr. Murley had told me months before, that he had been told somebody was recording phone calls and wondered if it was me. I had never done so at that time but it made me very, very uncomfortable. After that, I frequently asked both Jeff, and Mr. Murley, if they were recording a call when we spoke on the phone. When Jeff returned my voice mail, I asked him if he was recording the call and he said that he was not. Months later, after many calls from him while he worked on the wording of the Diversity Policy, after the last call about it, he smugly reminded me of the our phone discussion when I'd called to let him know what was being said, that I would not out it to the media. He then reminded me that I'd asked him that day if he was recording the call AND that he'd told me he wasn't, he then bragged that he had actually recorded that phone call. So, yes, I have heard more than one lie from Jeff, I do believe it is a pattern of behavior, and he did not express the least bit of reservation about the lie he'd told me...he bragged about it. The last time I spoke with Jeff on the phone was the day the story was outed in the Gazette. He called me that last time we spoke...and he did not express the least regret for anything he had done AT ALL.

So, do you think more than one lie legitimately makes him "a liar"? Then think about this, at last night's board meeting Jeff was elected vice president of the board...do you think he will lie as vice president of the board? I know I don't trust him after what he's done, his lie(s) to me, and his behavior as a board director over the last several years...and I certainly don't understand why anyone else could either.

Julie VanDyke said...

Oh, my mistake, it was Brian Kirschling that was elected Vice President of the board last night...it's so hard to tell them apart sometimes. For more on Jeff McGinness’ credibility, watch what the IA Supreme Court thought of it in session or see the see the ruling on his appeal here: http://law.justia.com/cases/iowa/supreme-court/2014/131213.html

On Brian Kirschling's credibility, see this 1:19 minutes of board meeting: https://www.youtube.com/watch?feature=player_embedded&v=YbFUjMglgq0#t=5

Our new Iowa City Community School District Board Vice resident, Brian Kirschling, chair of the committee meeting at which the draft under discussion in the 1:19 was/is chair of the committee that brought that draft with minimal changes, TO THE BOARD FOR VOTE. In the 1:19 Brian Kirschling sits there, initially SILENT, after Tuyet Dorau asks everyone there where the guidelines came from, who wrote them. Brian Kirschling in the 1:19, when asked directly by Dorau how those guidelines/policy move in and through his committee only said, “IT JUST SHOWED UP AT THE FIRST POLICY & ENGAGEMENT COMMITTEE MEETING THIS YEAR.” Really, “IT JUST SHOWED UP.” He was there when Marla introduced the draft discussed in the 1:19; he was there when she said she thought they'd come “from Steve”. He'd called me not long before the 1:19 to discuss them and their intro to his committee. During that call he laughed about Marla’s waffling, stumbling over where the draft had come from. I told him what angles “they” would try to stretch the policy into. He laughed at those too. Guess how many of those were tried, particularly by our now 2nd term Board President Chris Lynch? Guess how many I was wrong about as predicted in that conversation with Brian? Pretty much none. What I WAS wrong about was placing my trust in what I thought was a decent man of integrity, asking him to run for school board, and spending an enormous amount of time, at his discretion, helping him get up to speed. Yes, the calls, emails, texts, visits (oh wait, he only visited my home that’s right), went both ways, not one direction. All I asked from him in return was “due diligence”, fairness, that he be a good steward for all of the district’s kids. How does his responsibility for the process by which the guidelines/policy were enacted represent his honestly, ethics, and due diligence? Apparently very, very, very clearly.

In that 1:19, moments after Steve Murley’s contradictory statements then alleged total memory lapse, CHACE RAMEY CONFIRMS FROM WHERE DRAFT INTRODUCED AT THE POLICY & ENGAGEMENT COMMITTEE MEETING BY then PAST 2-TERM ICCSD BOARD PRESIDENT MARLA SWESEY, magically appeared = their first public appearance was at Kirschling's first P&E meeting of 2013-14 in A COMMITTEE MEETING SUBJECT TO IA OPEN MEETING LAW AT WHICH THEY WERE SCHEDULED TO BE FIRST DISCUSSED TOWARDS DEVELOPMENT OF, not appear already written, CHAIRED BY JUST ELECTED DIRECTOR and now BOARD VP, BRIAN KIRSCHLING...unbelievable yet there it is right before our eyes on video.

Marla Swesey, who I witnessed verbally and, in my opinion and apparently the investigator on behalf of the bullying complaint filed against her, then physically attack another board director...I have been told that the complaint was then FOUNDED by the district's former Equity Director.

I may curse like a sailor on occasion, but I tell the truth. What is WRONG with these people? Why are they still seated board members, let alone elected ICCSD President and VP? Seriously! These are the people in the neighborhood? These are the seated ethical examples for our children? It defies any sense of reason. WHY would anyone want their children to look up to these people? Where is the line? Will they stop before it the next time they're asked to tell the truth? How will we even know unless they get caught in the a lie? How many lies will be too many?