Cartoon by Don Landgren. Reprinted with permission

This is Sunshine Week, the annual celebration of open government that takes place during the week of the birthday of James Madison, widely regarded as the Father of our Constitution and a proponent of open government.

Madison once wrote, “(a) popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps, both.”

How true.

We couldn’t let Sunshine Week pass this year without at least one editorial about how critically important transparency and accountability are to our democracy — now more than ever before.

Over the years, we’ve published Sunshine Week editorials on a host of open government topics. Unfortunately, we could republish too many of these past editorials verbatim, because very little has changed.

We give current Riverhead Supervisor Yvette Aguiar credit for making sure documents to be discussed at town board meetings are posted on the town’s website prior to meetings, in compliance with the requirements of the State Open Meetings Law. We’d like to see the supervisor make this a uniform requirement for all boards and committees of Riverhead Town government. Having an “open” meeting is meaningless unless the public can understand what is being discussed, and that usually requires the advance opportunity to review the documents — plans, reports, maps, etc. — to be discussed.

Likewise, meeting agendas for all boards and committees should be published in advance of their meetings, so the public can know in advance what is scheduled to be discussed. This is, sadly, not required by the state Open Meetings Law — just one of its many deficiencies — but the town can and should take this important step for government transparency.

That brings us to another important concept. When it comes to government transparency, officials’ default mode always seems to be “bare minimum” rather than “as much as possible.” If there’s a way to avoid disclosure, hold offline discussions, deny records access requests, or otherwise keep the public’s business private, that’s generally the government’s response.

We’d say that’s not in keeping with the “spirit” of the open government laws, but we don’t believe that’s true. There are so many loopholes and qualifiers in the New York statutes, for example, that officials have plenty of wiggle room and opportunity to operate under cover of darkness. And they take it. The pandemic has made this worse.

In Riverhead Town, the amount of public discussion by the town board of really big issues facing the town has severely diminished under the Aguiar administration. Work sessions seem to no longer be when the board does its work.

More than once, we’ve heard the supervisor tell another board member seeking to discuss a public matter, “This is a work session. It’s not the place to discuss that” or “Come and talk to me in my office about that.” This happened frequently when former Councilwoman Catherine Kent, the supervisor’s political opponent, tried to bring something up at a public meeting. It happens less frequently now, with the one-party board.

The agendas are usually sparse, sometimes with no “discussion items” listed at all. The board convenes for a rapid-fire, no-questions-asked reading of the resolution titles by the deputy supervisor, in what currently passes for the board’s review of resolutions to be voted on at the next regular meeting. Then, the resolution titles are read again and the measures are voted on (i.e. approved) almost always without discussion and always without any plain-English brief explanation of what a resolution is about.

The result? Board members routinely approving, without any public discussion at all, resolutions that either they are discussing privately amongst themselves or they aren’t discussing at all. Either way, it’s disturbing.

The “discussion items” that do make it to the agenda are often simply presentations by staff or third parties. There’s rarely an unscripted, free-ranging discussion and exchange of ideas concerning matters of public policy or governance.

But if government entities violate New York’s Open Meetings Law or Freedom of Information Law, what happens? The answer is the key to why things are the way they are. Nothing happens. The law provides no penalty, no enforcement officer, not even any enforcement mechanism. The only remedy is for a private citizen to sue the government entity in State Supreme Court.

Any wonder why a public official, if so inclined, feels free to thumb their nose at the open government laws?

Until there is a penalty and a public enforcement authority for violations of these laws, they will remain essentially what they are and have been since their adoption nearly 50 years ago: an honor code, toothless suggestions for maintaining our democracy — not a regulatory framework to help ensure ours is a “popular government” as the framers of the Constitution envisioned.

Without the people having means — real means, enforceable means — of acquiring information, “a popular government is but a Prologue to a Farce or a Tragedy; or, perhaps, both.”

Madison continued: “Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

That’s our plea to you this Sunshine Week. Arm yourself with knowledge. Take the time to be informed. Get involved. Show up at meetings. Demand accountability.

Write to our state legislators to demand the open government laws be given teeth and an enforcement authority that doesn’t depend on the wherewithal of an ordinary citizen to bring a legal action.

The power is yours. Use it.

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