Paying for a Lack of Government Transparency
Who should pay for a lack of government transparency, the officials
keeping the secrets or the citizens who lack access to information?<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<a href="http://www.nytimes.com/2009/08/24/business/24judge.html" target="”_blank”">An
article in the New York Times</a> 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 <span>Times.</span>
This is no less true of local government.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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