Transparency Project of Georgia features editorials written by award-winning editorial writer and open government advocate Jim Zachary and fellow advocate James Zachary, that can be republished free of charge.
GOVERNMENT DOES NOT KNOW BEST
Government does not always know best.
In fact, it seldom does.
Government cannot be of, by and for the people unless it’s before the people.
It should never be forgotten that government belongs to the governed, not the governing.
Whether talking about the federal government in Washington D.C., the General Assembly in Atlanta, the county commission, the school board, or city council, government does not know better than the citizens it represents.
Those elected to office should never usurp the will of the public or assume they know more about what is right for their community than the public at large.
We do not elect officials to think for us.
We elect them to represent us.
That is what is meant by the word “republic,” a representative form of government.
Given a choice between the will of elected officials and the will of ordinary citizens, we should always defer to the people.
The people we elect should never be so audacious so as to abridge the rights and interests of citizens.
Public service is not autocratic rule.
Being elected to office should not be viewed as being placed in a position of authority and privilege.
The Declaration of Independence, provides, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
These words are primary to our entire form of government.
All real power, belongs to the governed, citizens, and not to the governing, elected officials.
We have protections in place, laws, to prevent a governing class from seizing power away from citizens.
The problem, however, is that citizens and the media have become accustomed to looking the other way while officials have become accustomed to looking out for themselves.
Then intention of a public servant should never be to simply do what is necessary to get re-elected.
Their intention should always be to adequately, competently and ethically represent the interests of the citizens they are elected to serve.
Some big corporate fat cat finds loopholes in the tax code and pays virtually no income taxes despite making millions and living a lavish lifestyle.
A successful high-profile hedge fund manager finds ways to benefit from proprietary information and grow personal investments without technically being guilty of insider trading.
A large commercial developer knows all the strings to pull and buttons to push to get permits to do work without the same kind of scrutiny that an individual builder finds constraining and sometimes prohibitive.
Or, a flimflam artist finds ways to bilk state and federal public assistance programs for tens of thousands of dollars, qualifying for benefits by being a little less than honest, but can’t really be convicted of illegality.
None of them have really violated the law.
They operate on the fringes.
They benefit from loopholes.
So, how do we feel about these things?
Largely, we do not think they should be rewarded for their ingenuity, craftiness and deceit.
Rather, most common, ordinary people feel violated.
And, we should.
When people look for loopholes in the law, their obvious intent is to get by with as much as they possibly can without going to jail.
When elected officials legislate by loophole while it may not technically constitute a violation of the law, it absolutely violates the public trust.
It is not exactly a secret that city and county officials use technicalities and loopholes to get around the state’s Open Meetings Act.
When attorneys instruct their clients on how to deliberate the public’s business in private without technically violating the Sunshine Law, it is obvious there is a total disregard for the public’s right to know.
What is commonly known among elected officials as the 3-on-3, is not illegal — it’s just wrong.
The Open Meetings Act basically requires that any time a quorum of any elected body meets then it constitutes a legal meeting, that must be open to public following an adequate public notice.
So, civic lawyers have interpreted that to mean that any number less than a quorum — three members of a body that requires four to make a quorum for example — can meet and deliberate all they want.
What transpires, then, actually becomes a bit of a game, or at least a tactic, that elected officials use to circumvent the public notice and public meeting requirements.
It amounts to vote-getting.
While officials think they are being clever, they are actually being dishonest and disingenuous.
Citizens have every right to know everything their elected government is doing and why they are doing it.
It is not enough to merely vote on every piece of legislation in public.
Deliberations should lake place before the public as well, whether it is at a public work session or in the regular meeting itself.
When a city council, county commission or board of education comes to a meeting, someone makes a motion, another makes a second, then they vote on some significant piece of business with no discussion, no description, no debate, it is obvious they are practicing loophole legislation.
Why even look for loopholes in the law if everything you are doing is on the up and up?
– James Zachary
— Transparency Project of Georgia
Principle should always matter more than precedence or practice.
As a matter of principle, government attorneys should represent the governed, first and foremost.
In precedent and practice, however, it appears government lawyers cater their representation to elected officials themselves.
Anyone employed with public monies should work for the public.
If an attorney is hired to represent a county, who is the real client?
If an attorney is hired to represent a school district, who is the real client?
If an attorney is hired to represent a city, who is the real client?
Or, perhaps a more relevant question is: Who pays the bill?
Government attorneys should always represent the interests of the jurisdiction — county, city, school district — and that means representing citizens.
Executive session privilege is one thing.
Attorney-client privilege is quite another thing.
When someone files a lawsuit against a county, city or school district and prevails, public monies — taxpayer dollars — will be used to pay legal fees, court costs and settlements.
The public, then, is the client.
Any public officials wanting or needing private, privileged, personal, confidential representation should feel free to hire their own attorney.
The executive session privilege exists because it is specifically provided for in the Georgia Open Meetings Act.
However, that privilege is not blanket permission for elected officials to meet in private with the attorney for any reason.
It’s not the “attorney-client privilege” that exists in the private sector.
In fact, the state attorney general’s office has said the privilege exists for the purpose of discussing real or pending litigation and there must be a paper trail.
That means in order to invoke the real or pending litigation executive session privilege, the local government must have been formally named in a lawsuit that has actually been filed with the court, or have received a notice such as a letter of intent to file a lawsuit.
The mere threat or possibility of litigation is not enough to trigger the closed meeting, the AG’s office has said.
A quorum of elected officials cannot meet behind closed doors simply because the attorney is in the room.
It’s the litigation, and the need to discuss legal strategy, that triggers the confidential meeting, not the presence of legal counsel.
The intent of the privilege is not to conceal the people’s business.
The general assembly simply believed that disclosing legal strategy might compromise the people’s position in court or settlement negotiations.
Most county commissioners, city council members and members of the board of education have been led to believe that anytime they consult with the attorney in executive session it is protected under “attorney-client privilege.”
That is a misnomer.
– By Jim Zachary, Director Transparency Project of Georgia
It is that time of year again. It is retreat season
Local governments are planning their out-of-town all-day or two-day retreats where they get together and discuss their respective legislative agendas for the rest of the year.
To be fair, they give public notice and the public is welcome to attend.
We should also say the ordinary practice of city and county government of holding out-of-town retreats is not illegal.
Despite those facts, it is very poor public service to discuss the people’s business in another city.
Taking the people’s business away from the people, while not a violation of the law, is a violation of the public trust.
When city councils, county commissions and boards of education go to another city or county for a retreat, they know citizens will not follow them.
Most of them likely do not even consider the implications of the practice or think about the message it sends to the people they are chosen to represent.
Citizens not only have the right to know what decisions their elected officials reach, they have every right to know how they reach those decisions.
Deliberations of the public’s business should always be before the public.
The fact they send out notices of those out-of-town gatherings does not mean they are really accessible.
Whether they admit it or not, the retreats often give them the opportunity to be more candid on things they would not want to discuss in public.
The only thing they really seem to be retreating from is the very public they are elected to represent.
Those elected to office will adamantly defend their standing practice of annual retreats.
That defense will most likely center around the argument that state law allows it.
That begs the question — should you do everything or anything you can do or want to do, just because it is not illegal?
Those holding office need to ask themselves why they ran for office, why they chose public service and why they feel the need to go to a nice out-of-town conference center to do what they could do at home, in their own city.
A true public servant seeks public office to serve the public.
The public is best served by openness, accessibility, transparency and amenability.
Local government keeps moving farther and farther away from the people.
The entire mindset of our elected officials needs to change.
The more open you are, the more accessible you are, the more public trust you will build.
The more you go off on retreats, hide behind the closed doors of an executive session or even whisper to one another during meetings, the more people will be suspicious and the less they will trust you with their business.
It should also not go without saying, these out-of-town retreats are on the public dime.
It should also be noted that an out-of-town business is benefiting from the amount of money spent on the retreat, rather than a local business.
Citizens should show up at regular city, county and board of education meetings and demand more openness.
Then, during elections vote for officials who pledge openness. But, then again, they all pledge and promise openness, don’t they?
– By Jim Zachary, Director Transparency Project of Georgia
TRANSPARENCY — NOT REPUBLICAN — NOT DEMOCRAT
Openness in government is not a liberal, conservative, republican, democrat, independent, TEA party or libertarian issue. The importance of transparency in local, state and federal government should transcend parties and political ideologies. Checks and balances provide few checks and little balance when officials broker deals behind closed doors and conceal documents that contain important information that citizens have the right, and often the need, to know. Local government has the biggest impact in the lives of citizens on a day to day basis. Whether it is in the form of property taxes, sales taxes, personal property taxes, business taxes, state-shared dollars or federal grants, loans and funding, local government is 100 percent taxpayer funded. The decisions being made, the monies being spent and the records being kept by city hall, the county commission, the board of education or the utility district all belong to liberals, conservatives, republicans, democrats, independents, TEA party volunteers, libertarians and even politically disinterested individuals. All stakeholders have a stake in open meetings and public records and should care about transparency issues. Bipartisanship is like the weather — everyone talks about it, but no one does anything about it. The difference is while a person can’t change the weather, officials could choose to work together. The lack of and need for true government transparency should be truly be a bipartisan cause. Any elected officials who truly care about public service in a real and meaningful way and fully understand what a representative form of government is all about, should not only champion openness in government, but should be the most effective watchdogs, looking out for the public trust. Sadly, those kinds of elected officials are hard to find. We encourage those officials who do care and who do understand to become a part of the transparency project and enhance their public service.
By Jim Zachary, Director Transparency Project of Georgia
WHY DOES GOVERNMENT TRANSPARENCY MATTER?
Why does local government transparency matter?
Simply speaking, open government is good government, or at least it is better government.
As we champion open and transparent government in our county, we are not “against” elected officials.
Rather, we are “for” citizens.
Even when elected officials believe they are doing what is in the best interest of citizens, even when their motives are pure and their objectives are sound, even when they are not doing anything wrong, they still must be fully accountable to citizens.
Government transparency is an important issue that matters and we will continue to try and explain it in ways that hopefully will eventually resonate with all our elected officials.
We are on your side.
We want you to get it right.
In the end, every thing you do, and every thing we do, should be all about what is in the best interests of the citizens.
Public service is not private business.
In private enterprise, a chief executive officer or a board of directors must answer to their stockholders.
In public service, elected officials must answer to their stakeholders — citizens.
Sometimes this can be difficult.
However, just because something is difficult does not mean it is not necessary.
Elected officials have a tendency to complain about the media when a lack of accountability or public visibility is highlighted in news coverage or editorials.
They like to say we don’t understand the law.
They like to say they are only doing what they have to do.
They like to say that if we really understood what they were doing behind closed doors that we would not be saying they need to be more transparent.
They are wrong.
They may mean well.
But, they are wrong.
Yes, doing the public’s business in public may have a downside.
It may compromise some initiative.
It may expose something they don’t want to come to light.
We get that.
It still does not make it right.
Public service comes at a price.
Being a public employee comes at a price.
A part of that price is public exposure.
If an elected official or a public employee does not like that, want that or hopes to avoid that, then the private sector is their best option.
We encourage elected officials to look at the issue of government transparency as a citizen and not as an elected official.
Every decision you are making, even decisions about public employees, land deals and lawsuits are decisions that you are only empowered to make by virtue of the fact you have been elected to serve the public.
You are doing the public’s business and the general public has a right to know about its own business.
The most common mistake that elected officials make is that they allow themselves to be told by attorneys that they must do certain pieces of business behind closed doors.
Despite what you have been told, that is not true.
Georgia’s leading authority on the state’s Open Meetings Act has said repeatedly there is no law that requires officials to go into executive session.
Rather, he has explained, the law allows them to convene in executive session, under very specific circumstances.
The law allows it.
It doesn’t require it.
There is a huge difference.
Any elected officials who say they are legally required to conceal public business are simply misinformed.
Perhaps for years, no one has called concealing public documents or over using the executive session privilege into question, so local officials are simply doing business as usual.
That does not make it right.
Because something has always been done or because a lawyer advises you can legally do it, does not mean in any way that it is what you should be doing or have to do.
There are some city and county governments in Georgia that almost never go into executive session.
There are some states in the U.S. that limit executive sessions to the extent that officials can only go behind closed doors in the midst of an actual, real, lawsuit for the sole purpose of discussing legal strategy, resulting in a situation where closed doors meetings are very rare.
Call it closed door, call it back room deal making or call it executive session, out of the public eye is out of the public eye and even if what you are doing is acceptable with citizens, when you do it in the dark it breeds suspicion and begs for questioning.
Instead of justifying a long-standing practice, just consider the fact that other cities and counties in Georgia and all jurisdictions in some states do almost every piece of public business in public.
It can be done.
It is being done.
Why can’t we do it here?
We understand it is often not the easy thing to do.
It is, however, always the right thing to do.
— James Zachary
Transparency Project of Georgia