Contracting Out Government Work to Prevent Transparency
Here's a good way to get around local government transparency laws.
If you want an appointee's activities to remain secret, let him be hired
by a private entity, give money to the private entity sufficient to
pay his salary, and don't communicate with him via government-owned
computers or smartphones.<br>
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You might think that this would only occur with relatively obscure
individuals and entities, aides who can do dirty work that an agency
wants to keep hush-hush, hired by a social service agency that is
afraid of losing its grant unless it plays along. But the case that
led me to write this post involved former Connecticut governor John
Rowland (who resigned in 2004 and later did prison time for accepting free work on his house from a state contractor), the city of Waterbury, and a local chamber of commerce.<br>
<br>
Somehow, I missed <a href="http://www.ct.gov/foi/cwp/view.asp?a=4162&Q=524354" target="”_blank”">the
May 2013 Connecticut Freedom of Information Commission (FOI) decision</a> that said this setup was okay (I live in
Connecticut, and my daily newspaper was the complainant). But it is
news again, after Rowland has been, in the words of <a href="http://www.nhregister.com/opinion/20140406/editorial-john-rowland-dan-m…; target="”_blank”">a
New Haven <i>Register</i> editorial yesterday</a>, "accused of shaking down
two millionaire congressional candidates in a scheme to exchange his
connections and influence for payments hidden from the Federal
Election Commission."<br>
<br>
The state FOI commission found "that no statute entitles the
respondents to receive a copy of the Chamber of Commerce’s records
concerning Rowland’s employment."<br>
<br>
There is a provision that states that, for the purposes of
transparency, a "public agency" includes "Any person to the extent
such person is deemed to be the functional equivalent of a public
agency pursuant to law." But this does not include a chamber of
commerce with a city-paid employee doing economic development work
for the city (the "pursuant to law" is apparently the culprit; in
any event, the newspaper did not even raise this issue).<br>
<br>
Had the contract been for more than $2.5 million (it was for
$100,000 a year for three-and-a-half years), then the following
provision would have become operative:<blockquote>
Each contract in excess of $2.5 million between a public
agency and a person for the performance of a governmental function
shall (1) provide that the public agency is entitled to receive a
copy of records and files related to the performance of the
governmental function, and (2) indicate that such records and files
are subject to the Freedom of Information Act and may be disclosed
by the public agency pursuant to the Freedom of Information Act. </blockquote>
$2.5 million seems a very high figure, especially for a local government or agency. Also, it's not clear whether this means per year or over the contract's life.<br>
<br>
The FOI Act does provide that an agency that implements
government policy is, if designated by the municipality and
approved by the state Commissioner of Economic and Community
Development, considered a public agency. Listed are the usual
independent commissions and authorities such as water, sewer, and
development authorities, but others can be so designated. However,
if a municipality's leaders want to hide what is going on, they
are not likely to designate an entity as an "implementing agency,"
so that it is subject to the FOI Act.<br>
<br>
Fortunately, according to the editorial, the FBI ended up raiding
the chamber of commerce's office and removing many documents
relating to Rowland. Things are more likely to happen when the appointee involved is (1) famous and (2) has already been convicted of public fraud.<br>
<br>
There are some important lessons to be
learned from this case. One, an FOI law should not give discretion in determining who or
what is doing government work to governments that might be seeking
loopholes in the FOI law.<br>
<br>
Two, even if state laws are weak, municipalities can pass (or be
expected to pass) their own laws to require that the relevant
records of all contractors, grantees, permittees, and others who
get special benefits from the municipality be considered public
records (the same goes for e-mails and text messages sent on
private computers and phones that deal with public business).<br>
<br>
Finally, it needs to be stated directly that what occurred has all the appearance of a cover-up Officials who contend that communications by someone paid
with taxpayer funds relating to public business are somehow
private should be shouted down and hounded out of office. If it
turns out that Rowland did not work for his salary (if that is
what was being hidden), that money should come out of the pockets
of those who authorized the grant to the chamber of commerce. If
worse happened, they should be considered accessories to Rowland's ethical misconduct or crime.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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