Wednesday, August 24, 2005

"Leaks violate law; test case not expected"

Kevin Blanchard this morning had an analysis piece on the Benjamin debacle that is well worth visiting. In it he establishes that the law was certainly broken and that almost as certainly no one will ever try and enforce it.
Somebody leaked a complaint filed with the state Board of Ethics to a Times of Acadiana columnist earlier this month -- a leak that would seem to violate state ethics law.
The complaint, you will recall was poorly specified, and rapidly discredited, but Benjamin managed to squeeze the evil-sounding word "malfeasence" into the article a couple of times.
The complaint, according to the Times of Acadiana, was filed by an opponent to LUS' plan -- though the columnist, Times General Manager Eric Benjamin, who did not disclose in his article who provided him with the complaint.

State law prohibits anyone from giving out information about an ethics complaint and investigation.

Now this is all very interesting...no one seriously doubts where this article came from. It came from Neil Breakfield. Go back and read the article and see if you can honestly (not legalistically, honestly) come to any other conclusion. It is certainly the interpretation the article encourages. So are we going to get into a situation where they haul Eric Benjamin out of the office in handcuffs for refusing to name his source? Shades of the Plame Affair. That's unlikely according to Blanchard:

But if history is any guide, no action is likely to be taken against the "leaker."

Blanchard goes on to cite multiples cases where now federal Senator Vitter apparently made a practice of breaking this law while in the state legislature. (And seems not to have taken advantage of the obvious opportunity he had to rewrite that law as a legislator). Vitter was never charged. Apparently enforcing the law is not particularly being contemplated in this case either.

This does not change the raw fact that a law was broken. Here is the way the law is described:
State Revised Statute 42:1141 prohibits the board or "any other person" from making any "public statement" or acting to "give out any information" concerning an ethics investigation.
Now as far as I or anyone else in Lafayette knows, the place where that "public statement" was made was Eric Benjamin's Times of Acadiana column. He did not "report" it being said in some public venue. That would be a fair characterization if Breakfield's accusations were leveled publicly at a press conference as Vitter apparently was wont to do and Benjamin was there to take notes. But there was no public press conference. Instead, Benjamin said it. Now it can be argued that making a public statement includes whispering it in Benjamin's ear in a darkened bar. Maybe that point could be made legally. Maybe. But certainly this sort of story which involves a "reporter/commentator/manager" skirting the edges of both journalistic and legal ethics ought to be at least discussed with an editor. I know for a fact that this happened with other reporters covering the ethics issue. But it is unclear just who might supervise Benjamin in these matters. Who is responsible for editorial oversight of Eric Benjamin?

Of course what is really offensive about this state of affairs is that anyone who is scrupulously honest and follows the letter of the law is at a distinct disadvantage. And what we know for sure so far about the ethics of this ethics case is that Breakfield and Benjamin are skirting a seldom-enforced law and that the accused, Joey Durel, is not.

The consequence is that Benjamin gets to write scurrilous "commentaries" with abandon and Breakfield gets to lurk in the background proclaiming "no comment" to inquiries by actual reporters while Durel is forced by his own ethics and respect for the law to stand mute. That has to be hard. (Anyone who thinks Durel finds standing by quietly easy really wasn't paying much attention during the fiber fight.)

I'm not sure that Durel should remain quiet, even if I do understand the special obligation of public officials to comply especially with laws they may feel unjust. But I am sure who among these three has acted most ethically in the conflict over ethics.

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