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Paying for a Lack of Government Transparency
Wednesday, August 26th, 2009
Robert Wechsler
Who should pay for a lack of government transparency, the officials
keeping the secrets or the citizens who lack access to information?
As it is now, in most jurisdictions, when a complaint is made under a freedom of information/sunshine (FOI) act or ordinance, either local government attorneys represent the respondent or the respondent is compensated for reasonable legal fees. In effect, the complaint is treated as if it were filed against the local government rather than against the official.
Since transparency has been determined by the government to be in the public interest, the official who doesn't follow transparency rules is effectively being charged with acting in his or her own interest (personally or politically) rather than in the public interest. In some cases, where there is a gray area, the rules need to be interpreted, and no one believes that the official knowingly did anything wrong. But most gray areas of transparency law have been dealt with over the years, moreso than with ethics codes, so interpretation is not what FOI complaints are usually about.
In most cases, the official's goal in fighting an FOI complaint is not to clarify the law, but to protect his or her reputation. When you're caught breaking the rules, you have the choice to make an admission and save your local government some money. But there's nothing like a decision in your favor, especially when it costs you nothing. And where citizens are the ones bringing the complaint, the well-represented official has a good chance of getting away with misconduct.
An article in the New York Times got me thinking about this issue. The article is about federal district court judge Jed Rakoff, who is said to give special attention to transparency. For example, he has some of the strictest rules limiting what sorts of material may be kept confidential in cases before him. “The legitimacy of the courts comes from the fact that they reason openly, on the record, based on facts,” he told the Times. This is no less true of local government.
The issue before Judge Rakoff is the $3.6 billion in bonuses paid out to Merrill Lynch executives just before the company was taken over last year by Bank of America. The S.E.C. filed charges against the bank only, not against individuals, and it wants to have the court approve a settlement with the bank. But the judge is concerned about which individuals allowed the bonuses to be paid, as well as with possible damages against them.
According to the article, the judge is also concerned that "the fine the [S.E.C.] imposed would be paid by the bank’s shareholders — the very people who were allegedly harmed by the bank’s secrecy." This too applies to local government transparency and ethics: fines, and the legal fees spent to defend against the fines, are paid by the very people who are harmed, in this instance citizens rather than shareholders.
This just doesn't seem right. The burden should be on officials to show that the law governing their conduct is unclear and needed to be interpreted (or that they did not do what they were accused of doing). Otherwise, they should have to pay for counsel and for any fines assessed, and there should be no reimbursement.
Robert Wechsler
Director of Research-Retired, City Ethics
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As it is now, in most jurisdictions, when a complaint is made under a freedom of information/sunshine (FOI) act or ordinance, either local government attorneys represent the respondent or the respondent is compensated for reasonable legal fees. In effect, the complaint is treated as if it were filed against the local government rather than against the official.
Since transparency has been determined by the government to be in the public interest, the official who doesn't follow transparency rules is effectively being charged with acting in his or her own interest (personally or politically) rather than in the public interest. In some cases, where there is a gray area, the rules need to be interpreted, and no one believes that the official knowingly did anything wrong. But most gray areas of transparency law have been dealt with over the years, moreso than with ethics codes, so interpretation is not what FOI complaints are usually about.
In most cases, the official's goal in fighting an FOI complaint is not to clarify the law, but to protect his or her reputation. When you're caught breaking the rules, you have the choice to make an admission and save your local government some money. But there's nothing like a decision in your favor, especially when it costs you nothing. And where citizens are the ones bringing the complaint, the well-represented official has a good chance of getting away with misconduct.
An article in the New York Times got me thinking about this issue. The article is about federal district court judge Jed Rakoff, who is said to give special attention to transparency. For example, he has some of the strictest rules limiting what sorts of material may be kept confidential in cases before him. “The legitimacy of the courts comes from the fact that they reason openly, on the record, based on facts,” he told the Times. This is no less true of local government.
The issue before Judge Rakoff is the $3.6 billion in bonuses paid out to Merrill Lynch executives just before the company was taken over last year by Bank of America. The S.E.C. filed charges against the bank only, not against individuals, and it wants to have the court approve a settlement with the bank. But the judge is concerned about which individuals allowed the bonuses to be paid, as well as with possible damages against them.
According to the article, the judge is also concerned that "the fine the [S.E.C.] imposed would be paid by the bank’s shareholders — the very people who were allegedly harmed by the bank’s secrecy." This too applies to local government transparency and ethics: fines, and the legal fees spent to defend against the fines, are paid by the very people who are harmed, in this instance citizens rather than shareholders.
This just doesn't seem right. The burden should be on officials to show that the law governing their conduct is unclear and needed to be interpreted (or that they did not do what they were accused of doing). Otherwise, they should have to pay for counsel and for any fines assessed, and there should be no reimbursement.
Robert Wechsler
Director of Research-Retired, City Ethics
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