Tuesday, September 28, 2010

A Gag Order Against Whistleblowing

It may be called a code of ethics, but its practical effect is a gag order on whistleblowing.

Who would have guessed, back in 2009 when Richardson voters clamored for more open and transparent government, when each and every candidate for city council promised just that, that the ordinance the elected council would pass this week will make it even harder for voters to learn of improper or unethical behavior conducted behind closed doors?

After the jump, Richardson's own Law of Omerta.

That's right, instead of codifying practices that open up government, the Richardson City Council is going in the opposite direction, issuing a blanket ban on discussing literally anything from closed meetings, whether or not state law requires it, whether or not the matters discussed even pertain to the agenda of the closed meeting, and whether or not the discussions are even proper or legal.

Here's the wording from the new ordinance:

"No officer of the City or a relative thereof shall:
(g) Disclose confidential information.

Confidential information includes ... any [emphasis added] information from a meeting closed to the public pursuant to the Texas Open Meetings Act or other law regardless of whether disclosure violates the Texas Open Meetings Act or Texas Public Information Act."

Council members defend the ordinance by saying it's in the city's best interest to keep confidential certain financial matters on pending land purchases and sales. Well, of course it is. But you don't need a blanket ban in order to protect important financial information. Instead, you draw the ordinance narrowly to protect what's important to protect.

Richardson can't expand the list of subjects that the Texas Open Meetings Act allows local governments to use closed sessions for discussion. But by drawing the ordinance as broadly as they did, Richardson is telling its council members that if they violate the Texas Open Meetings Act and discuss other subjects in closed session, it will be considered an ethical violation for a council member to bring that violation to public attention.

Council members insist they'll still be able to reveal information regarding improper conduct. But as the city attorney keeps telling them every time they bring this up, that's true only if the information they reveal is generic and lacks details. Despite their wishful thinking otherwise, a council member will not be able to reveal to the public detailed information regarding improper conduct by other council members in closed sessions.

Not a single public speaker has voiced support for this gag order and many have objected to it. A telling indicator that this ordinance does not promote open and transparent government is how no one is taking credit for it and some are actively denying responsibility. The city attorney denied insinuations that he and the city manager were behind the ordinance. No one else stepped forward to take credit. Clearly, someone in Richardson had to have decided that a confidentiality clause was wanted. Someone had to have inserted the language in the draft ordinance. Someone had to have reviewed and approved it before the draft ordinance was submitted to the full council for their consideration. That someone is keeping very quiet. This confidentiality clause is a bastard child with no paternity, a virgin birth. That's the telltale sign of a bad law.

This confidentiality clause is nothing less than a gag order on good government. This code of ethics is a step away from open and transparent government. This city council failed to live up to its biggest campaign promise from 2009.

Because the council passed its ordinance it's now a moot point, but there was a way for them to narrowly draw the ordinance. The Texas Open Meetings Act already narrowly defines what topics local governments can take behind closed doors. The Act also requires that the agenda of closed meetings be publicly posted. Therefore, an ordinance like the following would protect important information and not protect wrongdoing.

No officer of the City or a relative thereof shall:
(g) Disclose confidential information.

Confidential information includes information from a meeting closed to the public pursuant to the Texas Open Meetings Act, provided that information is material to a posted agenda item and is not material to any violation of city, state or federal law.

If the council were truly interested in open and transparent government, they could even go farther and *require* public disclosure of wrongdoing in closed meetings. They could make it an ethical requirement that council members reveal when topics not on the agenda are discussed in closed meetings. Instead of a gag order against whistleblowing, it would be an honor code to require whistleblowing. Now that would be an expansion of the Texas Open Meetings Act worth being proud about.

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