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Sunday, March 14, 2010

Legislators need to maintain openness

Editor’s note: Newspapers are watchdogs of government because of laws that protect the public’s freedom of information and right to know. Sunshine Week is an annual examination of government’s responsiveness to citizens. The project is spearheaded by the American Society of Newspaper Editors and includes the participation of newspapers across the country.

An intrepid investigator can spend days in fruitless search for the state legislator who is an unapologetic enemy of openness in government.

New Hampshire Rep. James Garrity, R-Atkinson, is chairman of the 19-member Right-to-Know Oversight Commission, which was created in 2005 but scheduled to go out of existence without further action this Nov. 1.

“I would say your average legislator is for the public’s right-to-know concept,” Garrity said. “They want to do the right thing.”

But state Rep. James Splaine, D-Portsmouth, author of changes that strengthened the Right-to-Know Law in 1977 and 1979, said human nature and the inherent power that comes with running government creates an inevitable tension.

“What we have seen through the years is people who are involved in government like their ability to control,” Splaine said. “When you shine a little light onto what is going on, it becomes a little more difficult for them to function.

“There is a certain instinct on the part of many politicians making decisions to keep to themselves. In their most private of moments, they might admit they would prefer we not have right-to-know laws.”

A 30-year legislator, Splaine said he watched some Republican leaders of the Legislature work to erode or blur the essence of the Right-to-Know Law while they ran Concord through the last quarter of the 20th century.

Then, in 2006, when Democrats captured control of both Houses for the first time since the Civil War, Splaine said some of his colleagues joined them.

“It seems Democrats have become more in favor of loopholes to the Right-to-Know Law,” Splaine said.

“The fact is that once public officials secure power, they want less information to be accessible. While they are out of power, they demand to see more of it.”

A brief history lesson bears out that the battle for transparency has been one between the political haves and the have-nots.

In 1990, then-Gov. Judd Gregg, a Republican, denied public access to state agency budget requests, prompting then-House Minority Leader Mary Chamber, D-Hanover, to sue and get the Supreme Court to declare them to be public documents.

In 2004, minority Senate Democrats joined with some journalists to argue the anteroom next to the Senate chamber was public space where interviews could take place. Senate President Tom Eaton, R-Keene, interpreted Senate rules to define the anteroom as off limits to anyone other than senators and staff.

In 2005, Republican leaders in the Legislature moved to protect e-mail communications between public officials as long as they didn’t amount to an online chain letter that linked a majority of a public body.

Democratic legislators, with the support of media outlets, fought the move and blocked its passage in 2005 and 2006.

But after some modification, the Democratically led Legislature passed the e-mail communication law in 2008 that permits public bodies to legally delete e-mail records.

State Rep. Shawn Jasper, R-Hudson, said public officials should be able to reach one another via e-mail, but fears the law is too open-ended.

“It’s hard not to get into a discussion while on e-mail,” said Jasper, a Hudson selectman. “We don’t make any decisions.

“It’s one thing to be able to e-mail and say, hey, there’s a culvert out in town and quite another thing to say I am all in for doing $40,000 of expense for this project or that.”

Jasper said the solution may be to compel public officials to retain e-mails that deal with public business in any way and make all of them available after any action is taken.

Meanwhile, it was only after The Telegraph asked that Gov. John Lynch confirmed that state Liquor Commission Chairman Mark Bodi had gone out on a paid leave 10 days earlier while prosecutors underwent a criminal investigation into the handling of an enforcement crackdown against a Keene bar.

Since mid-January, House leaders and Lynch had known, but not disclosed at the urging of state prosecutors, the existence of the probe, which is examining complaints from liquor investigators that the fourth-ranking House Democrat improperly tried to interfere with the crackdown.

On Friday, House and Senate leaders called for legislative public hearings into why state regulators failed to protect investors, some of whom claimed losses exceeding $80 million after the collapse of Financial Resources Management in Meredith. Critics have dubbed it a “Lakes Region Ponzi Scheme.”

Splaine and Rep. Paul McEachern, D-Portsmouth, called for the legislative inquiry.

“I commend our leadership for agreeing to this,” Splaine said. “I do think it’s a great example of how the media can make us be more accountable, because stories have already revealed a real conflict between state agencies about how to deal with this rogue company.”

The House of Representatives passed another exemption to the Right-to-Know Law to the state Senate for its review. This one springs from an illegal, secret meeting of the mayor, Nashua Board of Aldermen and Board of Education members to avert a teachers strike in 2008.

The bill lets public bodies linked together in bargaining matters to discuss strategy privately as long there is prior public notice of the session.

State Rep. Lucy Weber, D-Walpole, pointed out that even with this change, school and city boards can only approve any labor contracts in public.

Private talks between more than one board help public officials better negotiate labor contacts that benefit both employees and the taxpayers, said Weber, who also is a member of the Right-to-Know Oversight Commission.

Sen. Bette Lasky, D-Nashua, cosponsored the bill (HB 379) at the city of Nashua’s request.

“I do see there is a need when something is under negotiation for public bodies to meet and discuss privately their strategy,” Lasky said.

“The point is neither side wants to tip their hand. Without it, is there is no sense in having the negotiation at all. We have to be cautions about where the line is drawn and make sure the public gets all the information eventually.”

Rep. William O’Brien, R-Mont Vernon, said it’s a harmful expansion of secrecy to labor negotiations without justification.

“It will put one more brick in the wall between people and elected officials,” he said. “We should be tearing down that brick wall.”

The House has endorsed creating a civil penalty of up to $1,000 that a judge can order against any public official violates the Right-to-Know Law by acting in bad faith.

“Our own hope was having this civil penalty for a real bad actor would be putting some teeth into the law,” said Garrity, who sponsored the bill (HB 425).

The bill permits the judge to order the offending official to pay legal fees of the party suing for openness.

Rep. Peter Silva, R-Nashua, worried that went too far and would discourage people from running for public office.

Silva convinced colleagues on the House Judiciary Committee, and ultimately the entire House, to create an escape hatch, letting the offender avoid the hefty legal bill if he or she resigns the office.

“My biggest problem was with the legal fees in that if you forced an individual to pay them, it could easily run into five figures,” Silva said.

“Letting them resign gives them an out so they don’t get bankrupt by this. This can also be used to get the really chronic violators out of government.”

The House killed legislation to let the Right-to-Know Oversight Commission live on past this fall. Garrity still hopes the commission will get a stay of execution from a pending omnibus bill that will weed out archaic study committees but renew vital ones.

As for the commission’s remaining work, Garrity said there should be a legal standard for what government charges to produce records under a Right-to-Know request.

“All communities do it differently,” Garrity said. “Some charge 50 cents a page, some charge little or nothing at all, other towns actually have billed for the staff time taken to come up with the records.

“There needs to be a level playing field of understanding. It’s not fair for those making the request and sometimes not fair to towns if they aren’t fully reimbursed.”

The group also is working with Attorney General Michael Delaney on a training program that public officials can take about complying with the Right-to-Know Law.

“We have been suggesting that the best preventative medicine is education,” Garrity said.

Kevin Landrigan can be reached at 321-7040 or