December 3, 2008
Testimony to the Governor’s Task Force on Public Integrity
Shirley Kressel, MCHC Board Member
Recent revelations of public corruption are broadly understood as a reflection of “business as usual,” and the flurry of governmental action at city and state levels as an effort to pacify an angry public. Without some extraordinary and lasting vigilance, I am certain that these efforts will amount to little more than public relations gestures, further embittering and alienating a frustrated citizenry. I submit the following thoughts for your consideration.
The decision of this Public Integrity Task Force to meet in secret appears to confirm public suspicions that the actions of our elected officials — even when they are convened to restore ethics and accountability – cannot stand up to the light of day. Now you are holding your public hearing in the middle of a work day, making attendance unfeasible for most people.
1. Hold Public Integrity Task Force meetings in public forums.
2. Hold PITF meetings and hearings in the evening, not during workday hours.
Democracy is, in essence, civic engagement in governance. Public corruption deprives citizens of the requirements for effective civic engagement: complete information and alternative choices. Public integrity laws and dependable enforcement are the tools for achieving accountability to the citizens. Neither are currently adequate.
In my own work, which involves mainly writing and advocacy regarding development permitting and legislation, I can see ubiquitous corruption — abuse of power, influence-selling, diversion and outright theft of public money and land, cronyism, conflicts of interest, predatory lobbying, indirect bribery and extortion, etc. I have not been able to get any legislative, ethics or law enforcement entity interested in investigating these activities.
As one of three citizen co-plaintiffs, I sued the Boston City Council for 11 Open Meeting Law violations committed over the course of 18 months; we have struggled pro se with the Council’s frivolous and cynical legalistic tactics for almost four years – although the Law calls for resolution by a hearing within ten days of filing suit. Both the Attorney General’s Office, which has a standing order on the Council to obey the law on penalty of contempt citation, and the District Attorney, who is the designated enforcer of this Law at the municipal level, refused to take on this case, or even help us with it, despite the clear evidence we had amassed. The Council recently pleaded guilty to all the allegations, asking the court to impose no injunctive remedies, promising self-policing; meanwhile they have spent over one hundred thousand taxpayer dollars exploring legislative strategies to gut the Law, or exempt themselves from it entirely, in emulation of the state legislature.
Most citizens know that corruption is rampant and are furious, but we are helpless, as we depend on the foxes to guard the henhouse. As public expectations of official honesty fall, the social contract of the community at all levels is abandoned; for better or for worse, elected officials set standards of integrity, and their failures ripple through society.
Our first problem is the definition of “corruption.” The federal government prohibits any scheme that would deprive the public of fair and honest services. The state ethics law forbids a public officer or employee of securing “for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals.” We should more explicitly define and prohibit unlawful and unethical behavior.
The ultimate purpose of public integrity laws is to assure all citizens of equal access to political power and representation, and to protections, services, benefits and resources lawfully available from government. Public corruption does not consist only of improper exchanges of money; it lies in the damage the perpetrators cause to these goals of democratic governance. We cannot tolerate harmful behavior even if no quid pro quo can be proven; this scenario of cash-for-favors is far too easily circumvented.
The laws should forbid use of agencies, as well as individuals, as intermediaries for laundering gifts or extorting money. Any money an agency obtains from a private or public party that is not clearly authorized as a tax or fee should be considered extortion/bribery.
3. Enact state laws, applying to municipalities as well, that expressly prohibit depriving the public of fair and honest services, and helping individuals obtain unfair privileges, whether or not quid pro quo gifts can be identified.
4. Apply these laws to agencies as well as individuals, particularly (until they are eliminated)
authorities and other quasi-public entities.
5. Officials and employees convicted of civil or criminal offenses should pay all fines personally,
and should be subject to termination of their pensions and benefits for specified violations.
6. Officials and employees who know, or should know by their position, of corrupt activities and who do not report to the proper authorities should receive the same penalties as the perpetrators.
Transparency is the key to ethical, accountable government. Everything a public official or employee does is the public’s business, and all information should be immediately and freely accessible to the public, with a few narrow exceptions. No private employer would tolerate secret back-room deals about his money or his operations; yet, politicians demand the right to conduct “their” business in private – and have the audacity to complain that transparency requirements prevent them from serving their constituents!
We have Public Record and Open Meeting Laws, but their requirements are regulated by public officials, who have built in self-serving exemptions, loopholes, and jurisdictional ambiguities that hinder enforcement. The state legislators have exempted themselves entirely from both laws; the Boston City Council constantly cites that exemption as an excuse for their own violations and now is seeking the same for all municipal legislative bodies. These Laws may not prevent every corrupt act, but the prospect that at some point every matter is likely to leave a paper trail or require consideration by a government body would certainly give pause to would-be violators, and at least would set a standard of expected public accountability.
The Public Record Law is an essential tool for public information. Yet is it routinely violated and circumvented by vague claims of exemption or lack of responsive documents, and by enormous fees set to discourage requests. Indeed, the Law can simply be ignored by an official, with no consequences. The Supervisor of Public Records is evidently powerless to deal with stonewalling, and the Attorney General’s Office has basically abdicated.
7. The Public Record Law should apply to all public officials and agencies, including the state and municipal executive, legislative and judicial branches – and including ethics-enforcement bodies, such as this one.
8. It should also apply as appropriate to all appointed, hired or contracted entities, public or private, performing public tasks (park conservancies, charter/pilot schools, public works contractors, etc.; no laundering of public ethics through private contractors should be allowed, as increasingly occurs with special legislation and public-private partnerships.
9. All records should be automatically sent for legal review/redaction and posting on searchable websites, and archives should be scanned and posted. I am told there are states that do this.
10. All documents should be publicly accessible free of charge.
11. Until 9 and 10 are implemented:
a. Documents should be assumed public unless specific exemptions are claimed; failure to respond and delay past the ten-business-day deadline should be considered a violation.
b. Responses deemed incomplete or evasive by the requestor should be treated as violations at the discretion of the Supervisor of Public Records.
c. The Supervisor of Public Records should be given broad investigative and adjudicative powers, to avoid the need for referral to the AG or for requestor lawsuits.
The Open Meeting Law, like the Public Record Law, is routinely violated with impunity. By their nature, the public is often aware of most violations; but many violations are readily apparent. Yet, prosecution is seldom attempted by any enforcement agency. Except for the recent three-citizen actions in 2005 and 2006, Boston City Council had not been sued since 1987; yet they have violated the law continuously. So rare is prosecution that when the Council was recently found in violation in the citizen suits, the court was unfamiliar with the processes of hearing and fine imposition.
12. The state executive, judicial and legislature and all its committees should immediately be made subject to the Open Meeting Law.
13. All quasi-public entities, and any public or private entities performing public work, whether or not they vote in quorum, should be subject to the Law.
14. Every plenary, caucus, task force and committee meeting or hearing should be publicly noticed, including a complete agenda, at least 48 business-day hours in advance; no matters are to be added after notice is published (no “late-files”).
15. Minutes plus full written transcript of every meeting, hearing and executive session should be publicly posted.
16. Minutes should reflect times of every recess and executive session beginning and end.
17. The Law should allow suit to be brought by any single citizen, or, on plaintiff’s request, by DA, AG
18. Filing fee for lawsuit should be paid by the governmental body if the suit is not immediately dismissed for lack of valid claim.
19. No motions should be allowed until after the 10-day hearing.
20. Violation of an order to obey the Law should automatically make the body subject to contempt citation for further violations at any time, without no statute of limitations.
21. Repeat violations should trigger the creation of a process to monitor the body’s actions for a period of time.
22. Fines should go into a fund to pay expenses and legal fees/personal costs for citizen suits.
23. Impose personal financial penalties and legal costs on violating officials; it is inappropriate and counterproductive for taxpayers to fund their legal defense and fines.
24. Automatic BBO complaints should be filed for violating officials who are attorneys. Transparency is not only a matter of open meetings and records. The legislative process itself is structured to hide the public’s business and turn it into the legislators’ business.
25. Each legislative matter should stand alone: no “packages,” no riders, no horse-trades, no unrelated items slipped into bills where no one would think to look for them.
26. Bill titles should specifically state the nature of the legislation.
27. Each sponsor should declare affirmatively, on penalties of perjury, that s/he has no direct or indirect financial or other interest in the bill.
28. A hearing should be held for each item separately; criteria should be set for which kinds of matters require hearings, and a time by which the hearing should be scheduled.
29. In addition to public notice per the Open Meeting Law, committees should maintain notification lists, so that interested parties may sign up for notice on specific hearings and votes.
30. All votes should be roll-call votes for complete accountability; electronic voting makes this fast and easy.
31. The governor should have veto power over each item separately.
32. No earmarks and no single-beneficiary legislation should be allowed. Laws, like zoning, should apply equitably to all constituents.
Enforcement of public integrity laws is problematic. We have state house and senate ethics committees, a state ethics commission, an inspector general, an attorney general, a district attorney, a state auditor, the Boston Finance Commission — and all of them together fail us. Even the FBI, which stepped in while all the others stood by blind or dumb, will, at best, catch only the tiniest fraction of the most egregious offenses.
Who enforces which laws? Whose job is it to monitor compliance? What reporting is required? What auditing is done? What incentives do officials have to enforce against their colleagues? What if they refuse? Do they have adequate powers to take action? Do they have sufficient resources? Are they accessible and responsive to citizens? How can we get people to report suspected violations without fear of retribution?
33. Better reporting and monitoring mechanisms must be established.
34. Responsibilities for enforcement must be clearly assigned, and process to file Writs of Mandamus must be clearly established for citizens and other enforcement agencies.
35. Anonymous reports of suspected transgressions should be accepted and investigated; confidentiality should be used to aid the investigative process and to protect individuals until guilt or innocence is determined, not to obfuscate what the enforcement agency is doing.
Accountability is the ultimate purpose of ethics and transparency laws and their enforcement. But accountability is only possible if citizens can act on the information they access. We therefore need more political choices. Massachusetts and Boston are notorious for high re-election rates; the power of incumbency undermines accountability. New candidates cannot raise money because donors are (justifiably) afraid of retribution should the incumbent win. Some incumbents reportedly call donors to discourage them from supporting challengers. Reforms are needed to encourage more candidates and more robust races. And we must get the money out of politics by controlling lobbying and campaign financing (see http://www.youtube.com/commoncauseethics).
36. Term limits should be imposed on all public offices. Elections are not sufficient as term limits.
37. Public campaign financing should be implemented, with very limited or no private fundraising, for all candidates who qualify by certain criteria (e.g., nomination signatures).
38. Television, radio and other media should be required to provide equal and ample air time to all candidates as a condition of licensing.
39. Lobbying reform should aim to reduce the influence of special interests to that of the ordinary constituent citizen . Lobbyists’ gifts and special access opportunities should be prohibited.
In the last several decades, elected officials have devised the quasi-public entity, such as the various authorities, to protect their political popularity while they shift responsibility for unpopular actions – tax (“fee”) increases, corporate subsidies, eminent domain takings, etc. – to these unelected and virtually unaccountable agencies. These entities are usually self-funding, so they have the same conflict of interest as would a private corporation, with financial incentives unrelated to public interests. In Boston, the Boston Redevelopment Authority is simultaneously a developers’ advocate, a developer of land it has taken by eminent domain, and the City’s development regulator. The BRA also has devised ways to profit from its powers to authorize “blight”-based tax relief for real-estate developers and buyers, cheating the City of taxes for its own revenue enhancement, with the Mayor’s consent.
Similarly, politicians have encouraged public-private partnerships which delegate to private 501c3 entities the work of government. This is especially common for parks. This strategy privatizes the labor of public works, hands to private parties the stewardship of the public realm where they often violate civil rights by evicting the homeless or other “undesirables,” and curtail free speech and assembly (e.g., Post Office Square), and conceals from the public the financial records relating to the public works. Increasingly, public works are laundered through private contractors via legislation that exempts certain developers from the public integrity laws if they build “public infrastructure” (I- Cubed, DIF, the twice-proposed Ch. 40T now re-proposed as Ch. 23K).
40. Eliminate all quasi-public entities. Public services should be performed by publicly accountable entities under publicly accountable officials.
41. Disallow legislative evasion of public integrity laws by laundering work through private parties. Treat all private non-profit entities which perform public works as public entities in requirements for compliance with transparency and ethics laws.
The PITF cannot do justice to the problem of endemic corruption in two months. We have a crisis of confidence that is paralyzing government. Blog comments and letters to the editor following each revelation of wrong-doing indicate the depth of public anger and cynicism, which tears at the fabric of democracy. Public corruption is not a victimless crime, and it is directly linked to the economic crises we keep suffering and the spiraling deterioration of essential public services. The poor are harmed first, but eventually everyone is hurt. We cannot afford another “quick fix”: a commission, a report, a brief period of good behavior, and then business as usual.
42. Establish a permanent commission to deal with ethics, transparency and accountability. The State Ethics Commission’s mandate is too narrow for this.
43. This commission should study past local efforts, such as the Ward Commission Report, review practices among other states and cities, apply standards set by good-government groups such as the Better Government Association and Common Cause, and publish monthly reports on its activities and those of other states and cities, to keep this issue prominently in the public eye.
44. It should operate according to the public integrity laws, open to the public with appropriate exceptions.
Finally, I return to the concept of citizen engagement. Access to information is the basic requirement. But citizens must also be empowered to participate in the maintenance of clean governance, not simply left to vote for the least corrupt politicians as the sum total of their role in the democratic process.
45. Disinterested citizens with relevant experience should be appointed to this and other commissions related to good government.
We need more than a few token reforms; we need to establish a culture of ethical politics. And if the legislature and executive could do this without citizen oversight, we would not need to be having this conversation today. In this spirit, I look forward to attending open meetings and reviewing public records of this Task Force.