As Sunshine Week enters the home stretch, I’d like to take out the wide-angle lens for a broader view by examining how local government can do better to institutionalize transparency.
I don’t believe the shortcomings I’ve written about this week reflect malfeasance on the part of our elected and appointed officials. Mostly, they are the result of benign neglect — decades of benign neglect. The people who run our town government in particular work hard to accomplish a lot with very little. There’s nobody tasked with thinking about how the town complies with the Open Meetings Law or the Freedom of Information Law. And everyone is busy doing other things.
Shortcomings become obvious when there’s a problem — and then officials have to react.
Recent circumstances and events in town hall underscore the need for some proactive measures.
The town government needs to adopt a comprehensive set of rules for the conduct of quasi-judicial hearings and proceedings. A quasi-judicial hearing — also called an adjudicatory hearing — is one in which a body such as the town board, planning board or zoning board are deciding on applications that affect a person or firm’s property rights. Quasi-judicial hearings are different from public hearings on legislation or rules that affect the town generally. It’s the difference between a hearing on say, United Riverhead Terminal’s special permit application and a hearing on proposed changes to the town zoning code.
The town should adopt rules governing quasi-judicial hearings aimed at preserving transparency and the integrity of the proceeding.
The rules should address how information is presented to the decision-making body, how testimony is taken and how decisions are rendered.
They should bar — as in ban, prohibit, forbid — the submission of information in any form to members of the decision-making body outside of the hearing and the official record created on which the body’s decision is based.
The rules should ban ex parte meetings between members of the decision-making body and the applicant or its representatives, advocacy groups and, yes, members of the public — at least once a hearing is commenced and prior to a decision being made. I think there’s a good case to be made for banning meetings prior to the commencement of the hearing, too.
The public deserves to have access to all of the information, representations and promises made by the applicant. The official record of the hearing must be complete. The public deserves to know the true basis for the every board member’s decision.
What’s the point of having a public hearing if the decision-making body is basing its decisions on information and discussions held outside the hearing? Allowing decisions to be influenced by information and statements made outside the public record of those proceedings makes a mockery of the public hearing — which has the potential to become a show trial.
These principles were never more clear than they were last year after Councilwoman Jodi Giglio held a private meeting with the applicants seeking to buy the former Grumman site — while the hearing on the application was pending. Even assuming the purest of motives, if nothing else, that meeting cast a long shadow on the integrity of the entire proceeding.
From my perspective, putting rules in place to address this is an absolutely urgent matter. The town board should have taken this up a year ago, when it first became obvious to everyone how sorely such rules are needed. The town can look to rules promulgated by the state under the State Administrative Procedure Act for guidance.
Another crucial policy to foster greater transparency in local government is the ethics code. Riverhead town didn’t even have an ethics code to speak of until the mid-2000s. The code it adopted was a good start, but it leaves much to be desired.
The Office of the State Comptroller has promulgated a model code of ethics for local governments. It’s far better than the code currently in place for Riverhead Town. Town officials should read it and use it as a starting point for rewriting the town’s ethics code.
Personally I would add a few things to the comptroller’s model ethics code. For one, ex parte communications during a pending adjudicatory hearing in violation of the town’s rules of procedures for such hearings — assuming such rules are adopted — should be a violation of the town’s ethics code. In addition, town employees in confidential positions, such as the town attorney and deputy town attorneys, should be barred from holding positions on political committees. Currently two of the four lawyers in the town attorney’s office are members of a local political party committee. One is even an officer of a party committee. Town officials should be able to rely on the town’s legal counsel for advice and that relationship must be as divorced from partisan politics as possible. The town’s law department is no place for party officials.
These things need to be acted upon without regard to the people currently in office or who hold various positions in town government. As I said at the outset, the town needs to take steps to institutionalize transparency and set up guardrails to protect the public interest.