Don't do it in the Dark

It's a long story, but basically we discussed a sovereign immunity case in closed session, and made a non-decision through inaction to do nothing about the case. So when I brought it up in public my colleagues got mad because they said they were blindsided and they wanted to gripe but I insisted they do it in an open meeting. I wrote the following to compose my thoughts before the meeting, but wound up using it only for focusing.

Government cannot operate by whispers, nor in secret, nor behind closed doors, nor in the dark. Government meetings should not be showcases for pre-arranged decisions, and public hearings should not be window-dressing. As a council, we need to learn these principles and live them.

On March 11, the Harrisonburg City Council held a secret meeting to discuss how to deal with a school plan we hadn’t seen yet. Council members might individually classify that meeting as an informal discussion, but section 2.2-3701 of the state's Freedom of Information Act calls it a meeting. A week later, I wrote a letter to school board and council members suggesting varying ways we could look at the looming impasse between the two groups. So far, the only result of that letter has been complaints to the newspaper.

At least two council members have said they won’t vote to build another school. At least two have said the school board should stick with the grade 4-5 configuration. And yet neither of these positions has been stated publicly at either of our recent joint meetings, nor during our own discussion. A majority of council members would support selling the old high school if the terms were right, but this topic hasn’t come up on a public agenda either, except with a peripheral mention at our last joint meeting.

The school debate needs to come out of the parking lots and take place in front of the camera, and I hope that can happen at our joint meeting in August 2003. The issue of pre-deciding important topics deserves better than a shoot-the-messenger mentality.

The budget is the most important thing we do every year, and there were at least five serious flaws in this year’s. It raised two taxes too much, it cut the school budget too much, it made no provisions for next year, and last but not least, it assumes an unrealistic if not impossible amount of revenue for the golf course. We’re writing a blank check for our newest and least successful department.

If my protests on the night of the budget vote were pro forma, that reflects how much I expected them to be heeded. But if any council member had an issue with my vote, grumping to the newspaper was the wrong way to deal with it. Any council member who felt my motivations were in question should look at what was agreed to at our 2000 retreat. And if any council member thinks I should cast a sham vote on the most important thing we do, then citizens have the right to question the sincerity of that council member’s votes.

On the issue of sovereign immunity, the essential principle is not whether council members knew that a particular issue was going to come up at a meeting. That’s secondary, if it’s even worth considering. If a surprise issue comes up, council members have the option to table it or put it on the agenda for the next meeting.

The real issue is our action. At one meeting we reached a non-decision to do nothing in closed session. At the next meeting, when it came up in open session, we voted to pay what we owe. We did one thing when nobody was watching, and the opposite when they were. (As to the issue of blind-siding, some of us might have felt blind-sided when Mr. Lantz made a motion the council had already passed on the bond ads, or when Councilwoman Frank mildly took Mr. Rogers to task for his public comments about leadership.)

A second issue on the sovereign immunity case is that we skirted the Freedom of Information Act to discuss the case in closed session. For legal issues, the FOI requires actual or probable litigation in one clause, and refers vaguely to specific legal matters in the next. In this instance we could cite the discussion as a legal matter, but we were dealing with a person who had specifically said he would not file suit. Discussing it privately may have been barely legal, but certainly did not meet the standards we passed for ourselves in April 2001, when we said we would discuss things in secret not when allowed, but only when necessary.

 I’ve heard enough whispering about the letter to the school board, about my budget vote, and could feel the beginnings of it on the sovereign immunity case. The crime if there is one is to think things should be done in the open, and that government at this level or any other can’t take place with a nod and a wink toward the rules while people decide issues in advance and use meetings for pure PR. That’s how you wind up with golf courses.

Last Revised: 10.17.03    Publisher: Joseph Gus Fitzgerald