8/24/2007

Is it something in the water?

Seriously, what is it in this town? It seems as though everywhere we turn, government officials are attempting to exclude citizens from the process.

A while back I wrote about a local government entity that was considering a "Confidentiality Agreement" that would prevent its members from discussing certain public business publicly. In defense of the agreement, a representative of the entity informed me that the Great Falls Tribune had signed a confidentiality agreement, a 'fact' that Gary Moseman of the Tribune flatly denied.

I am now in a position to divulge a bit more information about this whole affair. The entity that is considering the Confidentiality Agreement is the Great Falls International Airport Authority.

The Confidentiality Agreement can be found here.

I am not sure how one can reconcile a "confidentiality agreement" among members of a public board with Article II, Section 9 of the Montana Constitution: "No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." Regardless of how helpful confidentiality might seem to the operations of a public board, the Constitution states in no uncertain terms that public information is just that...public. The fact that secrets might make a board's job easier, or might make the board more efficient is of no concern. Public officials cannot pick and choose what laws to follow depending on what their preferences are.

Apparently I am in good company on this thought, as Cascade County Attorney Brant Light sent a legal opinion to the Airport Authority (Find it here.) His opinion is clear:

"Therefore, it is my legal opinion, as the Cascade County Attorney, that a confidentiality agreement among the Great Falls International Airport Authority's Board and Chair is illegal and unconstitutional. It is contrary to both the 'Open Meeting' and 'Right to Know' laws. A confidentiality agreement in this context would block the public's right to participation in the Airport Authority and essentially move its deliberations behind closed doors."

I have it on reasonably good authority that this issue has created some division among the members of the Airport Authority. It is my understanding that there are at least some board members who recognize that it is a violation of their obligations to the public to contractually limit their ability to share public information.

I am not unsympathetic to the difficulty the constraints of public involvement place on the Airport's Administration. Public scrutiny inevitably makes their jobs more difficult and it is beyond cavil that our present Director, Cynthia Schultz, and her staff have done a magnificent job with the Airport.

But Constitutional mandates cannot be overlooked in the name of expedience. It is not the place of an appointed board or a hired administrator to decide that the subjective merits of their positions outweigh the collective determination of the drafters. Attempts to fashion a veil to obscure the scrutiny of the rest of us, contractually or otherwise, no matter how well intentioned, must fail.

This matter will come on for consideration at the Authority's meeting sometime on Tuesday afternoon. "[R]emember that [the Airport Authority] board appreciates participation from the public." Either show up at the meeting or contact the board's members and ask them to vote against this Confidentiality Agreement.

5 comments:

Anonymous said...

*subjective merits of their positions
*attempts to fashion a veil
*a veil to obscure
*obsure the scrutiny
*no matter how well intentioned

Constitutional mandates cannot be overlooked in the name of expedience? Really?

Seems to be standard policy to some of us: November 27, 2005, page 1 of 4 - Kandi Matthew-Jenkins states:

"The people are sorely ignorant of what laws they are under. News releases on the DPHHS hearings on SJ37 were sent to the media to make people aware that they can participate in the discussions and recommendations on the child protection system. As of yet I have not heard of any media avenue
informing the people about those hearings or the ones on the public defender system This I do not
understand.

How can legislators make decisions for the people when the people don't even know that the hearings are happening and the people aren't given a chance to let the legislators know their opinions on the subject.

Most people have no clue what laws are being passed and how it will affect their lives because there is no public information system to effectively let them know. For the most part you only hear from those

cont'd page 2

involved with the issues as government employees and or stakeholders of government.. . what prime examples of conflicts of interest.

In this current session the legislators passed a study bill known as SJ37, a study of the child protection services and entities involved with children and families in child protection cases.

Several of us attended the hearings in the DPHHS Interim Committee in August and October. Considering the lack of respect shown to this group of Montana citizens and taxpayers by the DPHHS Interim Committee in those hearings, the first hearing we were informed that a subcommittee of members from Law and Justice and DPHHS had been or would be put together to work with the complaints of families against Child protection Services, this announcement was made out of order considering this subcommittee was not listed on the agenda and just moments before the hearing we had waited all day to testify on was to be opened for discussion. The chairperson also announced that we did not need to give our full testimony, that this unknown subcommittee would hear it. We waited all day; we did not get paid for waiting all day. I believe several open meeting and participation laws were compromised if not down right violated in that August meeting.

david said...

GeeGuy, from my non-lawyer perspective, this seems to be designed to protect primarily private businesses, not the GFIAA. Isn't it sort of standard to give private enterprise some sort of protection as they are negotiating sensitive deals?

Or am I perhaps a bit too naive?

GeeGuy said...

Non-humans, such as corporations, do not enjoy privacy rights under Article II, Section 9.

Anonymous said...

Non-humans? Boy, I can think of several but I'll be polite and leave them to your imagination.

Joe Briggs said...

David,

You are correct that the confidentiality agreements are largely to protect the companys who are looking at relocation or expansion.

State law however is very clear that such agreements can not exist within government entities. It is for this reason that the details of economic development are carried out by non-profit organizations such as Great Falls Development and Sweetgrass Development.

These entities may be supported by government divisions but are not themselves a government entity. As such, they can have the required confidentiality agreements. Up until just recently, the Airport Authority utilized Great Falls Development as its Economic Development agency and so this was not an issue.

I am not certain why the Airport Authority chose to alter the relationship with GFDA, but they will find the laws governing Airport Authorities are not at all sutited to attempting to be their own Economic Development agency.

Joe