Authored Articles & Publications May 04, 2016

The Ethics Advisor: Bad Stuff Sometimes Happens, Even to Good People

By Ruben Duran

Fourth in a series by BB&K Partner Ruben Duran for the Southern California Latino Policy Center Newsletter*

Sometimes, it just happens. Tragedy strikes. Disaster hits. Whether self-inflicted or supernaturally caused, when a crisis confronts a public agency, it can set in motion a series of events that have a long-lasting impact on the strength and well-being of the organization, and sometimes on the health and sanity of elected officials, management staff and others whose reputations and jobs may be at stake. How the public perceives how well or poorly a city, school district, special district, community college or any public entity handles a crisis can have a meaningful and lasting impact after the crisis has subsided.

What are the ethics of handling a crisis as a public official?

While there are relatively few laws that bear on this situation, there is some guidance in them. Additionally, perhaps as important as ensuring legal compliance is the need to ensure best practices in dealing with the news media and the public.

In this month’s Ethics Advisor, we examine two scenarios that might call for quick thinking and concerted action when dealing with a crisis or emergency.

The first scenario arises when a bona fide emergency hits, such as a natural disaster or a terrorist act. The second kind of crisis involves intense negative public exposure when an agency employee or public official either makes a mistake or engages in illegal or unethical behavior that results in a financial loss or embarrassment to the agency.

When a local emergency is declared, California law requires local governments to use the Standardized Emergency Management System (SEMS) to be eligible for state funding of response-related personnel costs. Those sections require use of SEMS in emergency plans and procedures, SEMS training, use of SEMS in exercises and in performance of any emergency response.

As local news headlines sometime prove, not all crises at the local government level are caused by acts of God. Sometimes people cause the crisis, whether through criminal activity or even criminal negligence.

A public official’s duty in each of these circumstances is first to serve the public he or she was elected, appointed or hired to serve. This means taking action and making decisions aimed at protecting the agency’s assets and position.

Follow open government and transparency rules.

For example, while the Brown Act does allow a legislative body to convene a special meeting with less than the customary 24 hours’ notice in the case of an emergency that threatens public safety, facilities or services, the agency must post the agenda for the meeting and a notice of any action taken at the meeting soon after adjournment. Additionally, remember that the Public Records Act does not include an exemption for embarrassing documents. If a record is otherwise disclosable under the Act, it must be released when requested under the standards set forth in the law.

Finally, crisis situations demand clear and honest communication. It is rarely prudent or acceptable to “batten down the hatches” and stay silent. Ethical standards don’t necessarily require immediate and overly broad sharing of information. Rather, responsible public officials must remember that:

  • Once communicated in public, a message can never be taken back.
  • For that reason, whatever the message, it should be accurate, truthful and legally proper to share.
  • Don’t reveal confidential information such as attorney-client communications, or private and confidential personnel information.
  • By the same token, don’t release information before the facts have been developed and the position of the public agency has been determined.
  • And, ensure that all of the key representatives of the agency know the facts and the agency’s position so that conflicting messages don’t get out and potentially confuse the public.
  • Better yet, designate one person to be the single voice of the agency.

Perhaps most importantly in a crisis, do not lie.

If there are facts that are known and appropriate to share and you have been designated as the spokesperson for the agency, communicate simply and clearly, preferably with a message that has been vetted and approved by leadership in your organization.
*This article first appeared on on May 3, 2016. Republished with permission.

Note: This article originally appeared on the now-defunct BBKnowledge blog, where Best Best & Krieger authors shared their knowledge on emerging issues in public agency law.

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