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.

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Rumors, Reporting and Reputations

September 13, 2008, 11:30 a.m.

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[And note today's updates to "A Strategy for PUMAs" and "University of Iowa Sexual Assault Controversy -- 2007-08."]

Throughout its reporting about the events since October 14, the Press-Citizen often includes a line similar to that in Hermiston's September 12 story, below: "Because it is the Press-Citizen's policy not to identify alleged sexual assault victims, it has not named the mother."

Many media organizations follow that policy. It reflects a sensitivity toward the alleged victim. It reduces at least one of the many disincentives that discourage victims from reporting assaults. And it doesn't really interfere all that much with the ability of the media to tell the story.

The question is, why not apply a similar standard to the accused? There may be a reason. I'm not saying there's not. I'm just asking, what is it?

A person's reputation is a very fragile -- and valuable -- thing.

There are many elements of "defamation," but it is, in general, the utterance or repetition of a falsehood that is damaging to the subject's reputation. (Related "causes of action," as lawyers refer to theories for law suits, might include "false light," "public disclosure of private facts," and "intentional infliction of emotional distress" -- in short, personal harm that can sometimes come from truth as well as falsehood.)

Clearly, for the mass media to spread far and wide that someone has committed a crime, or other disreputable act -- let alone one that is as highly charged emotionally as "sexual assault" -- when the subject of the charge is innocent, or before it can be known whether or not they are innocent, is to inflict a form of punishment that is often far more severe than the punishments handed down by a court. It is a way of holding up someone to shame and ridicule in a community; although different physically, in its effect on one's reputation it is something not unlike the earlier use of stocks for public humiliation (a wooden structure, in a public place, in which an offender's arms, legs and head could be held in place).

Once one's reputation is besmirched it is almost impossible to redeem it. As Mark Twain is credited with saying, "A lie can travel halfway around the world while the truth is putting on its shoes." Or as I sometimes quote, but cannot now find the source for: "The truth is a notoriously slow runner in its race with the lie."

Indeed, in many countries for a newspaper or broadcast station to engage in the kind of reporting we've had about this alleged assault would constitute a form of contempt of court for which the media's reporters and owners would be punished with fines and imprisonment. (The concern is not just for the reputation of the accused, but for the legal process itself, since pre-trial publicity may so taint the public's understanding of a case -- before any evidence has even been marshaled, not to mention admitted during a trial -- as to make it virtually impossible to find that "impartial jury.")

I suffer no illusions that we'd ever adopt such a policy here. But considering it as a theoretical matter, why not? There are good reasons for the media to report on what various aspects of our government -- from the military to the judiciary -- are up to. After all, "checking value" is one of the basic values of, or reasons for, the First Amendment (i.e., the media's ability to look for, investigate and report on institutional abuses -- not just governmental units, but corporations, trade unions, hospitals, and so forth. Other values include "marketplace of ideas/search for truth," "self-governing," "safety valve" (i.e., an alternative to violence), and "self-actualization.") A self-governing democracy requires that the citizenry have the opportunity to know what its government is doing.

So I don't think we'd want to bar the media from reporting about the courts, judges, trials and accused defendants. But that doesn't answer: how much would we, the public, lose if the media (a) could investigate and gather information about courts/trials whenever it wanted, but (b) could not report what it knew until either the conclusion of the trial, or at least after it was started, and (c) could not reveal the names of accused defendants until they'd been found guilty?

For purposes of monitoring the operation of government, does the public really have to know these details any earlier? Maybe they do. But, if so, why?

The folks least able to reply, or otherwise protect themselves, are those who are not in the public eye, with easy access to the mass media. But I've discussed elsewhere the need to do something about the latter as well. We've seen it during this presidential campaign. Is there nothing that can be done to prevent, or at least minimize, the lies and deliberate misrepresentations that pollute the public's participation in elections -- as well as whatever harm they may do to the personal reputations of candidates and others? See, "Defamation of Public Figures: Rethinking New York Times v. Sullivan" in Nicholas Johnson, "It's Biden -- for 'Experience'?" August 23, 2008.

The consequences from gossip and serious, unproved assertions, are complicated by the fact that few among us, it seems, are able, or if able, inclined and willing, to apply the distinctions between an allegation and proof, an inference and a fact, an hypothesis and a theory, an assertion and data, ideological faith and policy analysis, a rumor and a report, rhetoric and research. My sense is that if we're spending time on such distinctions in our K-12 curriculum they're not being applied by a good many graduates years later.

Secondly, if the lie could travel halfway round the world in Mark Twain's day, today's Internet makes it possible to cover the world with lies in a small fraction of the time he had in mind.

As it happened, I came upon a couple of authors' efforts to explore these issues recently.

Here are excerpts from the first, written by someone who seems able to truly internalize "innocent until proven guilty":

"Those vicious thugs brutally raped that poor girl and left her bloody and beaten!"

So I remember one caller confidently proclaimed on a local talk show in reference to the alleged sexual assault in a university dormitory. After what seemed like a long pause, the host stated, "Well, remember these allegations are still unproven and we should refer to the accuser as alleged victim."

Left unchallenged were the words "vicious thugs," "brutally raped" and "bloody and beaten."

I never read those descriptions among the few details that have been released to the public by the police. Yet, even though the start of the defendants' trial is a long way off, the caller, and apparently the host, were confident in their condemning judgments extrapolated from unproven allegations. . . .

I close with my own opinions of others' guilt.

Given that the trial concerning the alleged rape has not even started, I currently think the two defendants are innocent.

The entire op ed is well worth a read: Jay Christensen-Szalanski, "Presumption of innocence," Iowa City Press-Citizen, September 11, 2008

The other is a book that will be published next month: Daniel J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2008), available October 6, excerpt (Chapter 1) now available.

From that excerpt and the table of contents it looks like Professor Solove is struggling -- perhaps with some success -- in addressing what possibly can be done to moderate the potential harm to reputations that's been exacerbated by the Internet, while retaining its open access, diversity and wild west character.

There are no obvious answers -- at least they're not obvious to me. But we'd all better be looking for some, because it's going to get worse before it gets better.

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