From the Beaufort Observer (11/6/09): A case handed down Tuesday (11-3-09) illustrates yet another loophole in North Carolina's public records law that needs attention by the legislature.
The case is State Employees Association v. N. C. State Treasurer. Here’s a brief summary of the case:
In 2007 Forbes magazine investigated the state’s pension fund. In the course of that investigation the magazine sought and obtained a number of public records related to the relationships between the State Treasurer’s office and various investment banks and entities. Damaging information tended to show that inappropriate relationships and contacts existed which raised questions about conflict of interests between members of the Treasurer’s staff and investment bankers.
It should be noted here that the inappropriateness of some of the activity regarding how state employees’ retirement funds were being handled has in our opinion now been clearly established. The person who headed up the division has since been fired and media reports tend to indicate, if believed, that there was inappropriate activity taking place. It was also determined that, although not illegal at the time, a number of investment entities made larger than typical political contributions to the then State Treasurer’s campaign for Governor.
The problem, in our view, is that all of the story never came out.
It must have been that the State Employees Association believed also that not everything had come out because SEANC continued the investigation after Forbes published their stories. SEANC requested a number of documents. The Treasurer’s Office provided many documents (2000+) but not all of them. SEANC had evidence of the existence of documents that Forbes had seen but not supplied by the Treasurer’s Office. The Treasurer’s Office also refused to disclose some documents because it claimed they contained “trade secrets” which are exempt from the Public Records law.
Tuesday’s split decision of the Court of Appeals essentially held that when the Treasurer’s Office searched its records and claimed it did not possess certain documents that it complied with the law.
It might be too cynical for us to say, but it is a fact: While all this was going on in the Treasurer’s Office we now know that in the Governor’s Office a boatload of records disappeared. Ironically, those records had to do with travel by Governor Mike Easley which it has now been determined, apparently, would have proved embarrassing to the former governor. The then Treasurer, Richard Moore, is now gone, having been defeated by Beverley Perdue.
If you read the pleadings of this case you get bogged down in tons of legalese. It was a lawyer’s field day. But here’s how we see it.
The people, and especially the members of the retirement system, know for a fact that the investments made by Richard Moore’s office were terrible in many cases. We know many questions related to conflicts of interests have come to light. We know that not all the records and information about what was going on during that time period have been made public. To us that is enough to say either one of two things: Either the Court of Appeals is wrong in shielding the information or the law is inadequate to insure that state agencies cannot legally hide “certain” information from public sunshine.
From our experience we know that obfuscation by state agencies in responding to public records requests is rampant in state government. We have absolutely no doubt that this happens. In fact we are working on a case right now that perfectly illustrates the problem. (More on that to come). But beyond any particular case we are convinced beyond any doubt that bureaucrats who are doing wrong try to cover it up. And when the press gets a whiff of smoke it becomes standard operating procedure for us to accept that we will have a fight getting to the bottom of the wrong doing. It ought not be that way.
The public’s business ought to be public. It is just that simple. “Being public” means the public (press) should have unfettered access to public records. And if some bureaucrat or politician hides anything that the public has a right to see they ought to go to jail or have to pay a hefty fine out of their own pocket. Give us that and the press will do our jobs. Make it difficult for the press to find out what is going on and you will continue to have corruption scandal after scandal like we have had the last few years.
Governor Bev Perdue has said she wants a transparent state government. And we commend her for that. But it is more complicated than that. And because it is more complicated the reform of the current public records law (and we might add, the Open Meetings Law) needs to be reformed to open state and local government up so the people can know what the bureaucrats and politicians are up to.
You’ve got to know it is a problem if you see case after case of corruption that included, at its origin, the withholding of public access. School boards meet in secret session for a reason. State offices delete emails for a reason. Documents get lost from state files for a reason. The current game is one of cat and mouse with no consequences for the mice that try to hide things.
And it is not just dishonesty that is involved. It is systemic effectivenss. For example, try to determine how the state computes how much impact tourism has on our economy. You will run into a closed file cabinet. “Proprietary information” the Department of Commerce calls it. Yet the state spends billions on promoting tourism. We have no clue how accurate the results of those expenditures are measured because how it’s done is secret.
The state’s retirement system has lost billions of dollars in the last few years. Undoubtedly some of that was caused by the economy. But some of it, undoubtedly, was caused by malfeasance by bureaucrats and politicians. That in and of itself should be sufficient reason for our governor and legislative leaders to reform the public records and open meetings laws and put some teeth in the enforcement thereof.
And while they are at it they should change the campaign finance law to make it a felony for investment bankers doing business with the state to make political contributions. If they want the state’s business they should be required to foresake their right to make political contributions or gifts to state employees or politicians.
The state’s retirement system is one of our state’s greatest assets. It is what causes thousands of really competent people to work in a lower paying career than they could make elsewhere because they know that they will earn the benefits when they retire. The retirement system is one of the ways we retain good teachers in our classrooms. It is one of the reasons state government even works as well as it does. If the state loses that it will have lost one of the most valuable assets it has.
Fixing the Open Meetings and Public Records laws is one of the easiest and most cost effective things the state could do to improve efficiency and effectiveness in the people’s business. Give the press access and good things will happen. Make it difficult and we will have more Mike Easley’s.
There are thousands of honest, hard working state employees who do yeoman’s work for the people, and particularly our children in our classrooms. But unfortunately, there are a few bad apples. But worse still there are all too many who are teetering on the brink between “doing the right thing and doing what can be gotten by with.” Sunshine makes a world of difference with that group.
Some people will always do the right thing, even when they know nobody would know otherwise. But all too many will do the right thing only because they think they will get caught and suffer if they don’t. It is for those we need sunshine. And an effective public records/open meetings system is essential for that.
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