Commentary

January,  2007

Even in the very unlikely event that the state Senator Karen Peterson's bill to subject the legislature to the Freedom of Information Act makes it through the General Assembly and into the Delaware Code, it shouldn't supply much cause to celebrate. A Band-Aid isn't going to do much good where a transplant is needed.

The problem is that the present law, despite all the noble language in its preamble, is heavily weighted against openness and transparency in public affairs.

There are listed nine topics of discussion which government agencies, committees, councils, boards and the like can take behind closed doors. At first glance it would seem these are legitimate and appropriately narrow exceptions to the public's right to know. In practice, however, they provide loopholes through which you can drive the proverbial truck. Make that an 18 wheeler.

Topic one: "Discussion of an individual citizen's qualifications to hold a job or pursue training ..." Topic nine: "Personnel matters in which the names, competency and abilities of individual employees or students are discussed ..." Common interpretation of those provisions extends to any talk which has to do with personnel. That could be -- and has been -- taken to include provisions of a labor contract, staff work rules and the salary of high-ranking public officials.

Another provision of the law declares that "each public body shall maintain minutes of all meetings, including executive sessions ..." It goes on to say that those minutes shall include, among other things, any "action agreed upon." It further states that the minutes "may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer." (emphasis added)

Adequacy and completeness of public bodies' minutes aside, the most common version of executive session minutes made public and apparently the only ones  kept reads simply: "The [public body] discussed personnel matters and pending or potential litigation." In several cases, the deputy attorney general in charge of reviewing freedom-of-information complaints has ruled that fully complies with the law.

Nodding in the direction of openness is a provision that "executive sessions may be held only for the discussion of public business and all voting on public business must take place at a public meeting ..." (emphasis added) Usually that public vote is on a motion to confirm something "as discussed in executive session" without, of course, disclosing what that 'something' was. Again, that has been ruled compliant.

Even when a violation has been found, some sort of token act performed in public -- like a revote or issuing a statement -- has been deemed sufficient to remedy the violation.

A complete overhaul of the present law should be directed toward limiting to a bare minimum the reasons for barring the public's access to the public's business; providing an independent arbiter to determine if violations have occurred; and imposing a meaningful penalty for willful violations.

Senator Peterson and a few of her Assembly colleagues seem to be on the right track. Might we suggest they get together and establish a taskforce reflecting the involved interests, in both the public and private sectors, to come up with comprehensive legislation. Only then will it be possible to determine how many and which of our lawmakers subscribe to the declaration of policy in the current law:

"It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy. ..."

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Airman Elizabeth Loncki of near New Castle was the 13th Delawarean killed in the line of duty in Iraq.

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Waste Management promotes itself as an environmentally conscious company, so we just knew it would come up with a way to solve the Christmas tree disposal problem. Unless you've spent the last few months on Mars, you know that yard waste has been banned from the Cherry Island Marsh landfill. Although most folks don't keep their cut Christmas trees in the yard, the Department of Natural Resources & Environmental Control,

folks still have the drooping remnants around about the end of January?

• They're cut into four-foot segments. It was hard enough getting the trunk down to proportions required to fit into the stand.

• Customers fork over $15 per tree. Is a tree in two or three four-foot segments one or two or three trees?

Of course, the company letter said, you can always cart the tree to a state park and leave it there for a 'suggested donation' of $2. Which, of course, is how Waste Management and the other major trash-collection firms want to cope with the environmentally favorable ban. We just knew they wouldn't disappoint.

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County Council is scheduled to vote Tuesday evening on the first step toward addressing the county's financial situation. Although the best guess is that, after a bit of posturing, they'll approve an ordinance removing the 5% limit on what the county executive can propose in the way of a property-tax increase, 12 of the 13 members evidently want to keep mum until they see which way the wind is blowing.

Only Dave Tackett responded to a twice-sent Delaforum inquiry into their thinking. "I do not think repelling the 5% [limit]  is a big issue since the budget needs our approval anyway. And if there is a need, then perhaps more than a 5% increase may be needed," he said. He added that he hopes state government will come to county government's assistance as it did for Wilmington city government. If so, he added, that "it is important to show the state we are doing everything we can to run the county in a finically responsible way." The bottom line as Tackett sees it is that the alternative, reducing services the county provides residents,, is not an option.

(CLICK HERE to read previous Delaforum article.)

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Celia Cohen, who is far and away the best political journalist in Delaware, notes in an article posted on her Delaware Grapevine website that Senator Joe Biden has quietly passed the late Bill Roth as the longest-serving elected public official in major office in state history. During the past 30 years he has risen from being a county councilman to one of the most senior -- and most respected -- United States senators. And it's a not-overly-remote possibility that he might rise to the top of the ladder in a couple of years. CLICK HERE to read her very fine account of a significant historical milestone.

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Some thoughts to start the new year:

• It's no mystery why the taskforce looking into the county's financial situation didn't waste time talking about a sales tax as a potential 'structural' remedy. In the land of 'tax-free shopping', that just isn't done. However, we might suggest that the door isn't as tightly shut as it might seem.

Up in New Hampshire, one of the four other states* without a sales tax, local jurisdictions tack a 7% tax onto restaurant checks. Try to find a parking place in the dining-oasis lot across from Concord Mall on a Friday night or in the vicinity of just about any eatery and it's obvious that county government could balance the books with a single blow. And we'd guess it wouldn't have to be as hefty a rate as the Graniteers have.

That would give new significance to those three little words of endearment: Let's eat out.

(* The others are Alaska, Montana and Oregon.)

• Topping our legislative want list for when the General Assembly gets together this month is a ban on using a cellular telephone while driving. California recently joined New York, Connecticut, New Jersey and the District of Columbia in telling drivers statewide to hang up. Many local jurisdictions have such laws.

According to the Insurance Institute for Highway Safety, drivers using cell phones are four times more likely to get into crashes serious enough to injury themselves. That ranks somewhere up there with drunken driving. The institute cites a study which found no significant statistical difference in injury rate between males and females, drivers older and younger than 30 and those using hand-held or hands-free devices.

• It's hard to believe that anyone familiar with how our state Freedom of Information Act works -- doesn't work is more like it -- was surprised by the deputy attorney general's ruling that University of Delaware trustees were legal in having their executive committee select a new university president behind closed doors. So long as a perfunctory vote to hire is taken by the full board in public session well after the actual choice is made, everything is legit, according to Michael Tupman.

He ruled the same way last summer when Delaforum questioned the closed process the Brandywine school board used to hire a new superintendent.

Bringing actual practice into line with the stated philosophy of promoting transparent government should be near the top of Beau Biden's to-do list as he takes on the role of chief enforcer of state law. He could start by seating a pro-public ombudsman at Mr. Tupman's desk.

• We have to wonder how closing schools serves to honor the memory of President Ford. Rather than giving the kids a day-long recess, it would seem far more appropriate and beneficial to use the day of national mourning as the occasion for learning about his accomplishments and the public services he performed.

• At a time when the Catholic school system is endangered by rising costs, it's hard to find educational -- or other -- justification for sending high schoolers cross country to basketball tournaments in Arizona and Washington state.

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