An edited version of this article appeared Sunday, May 31, in the Roanoke Times
http://www.roanoke.com/editorials/commentary/wb/206505
Let’s
settle this thing
by Megan
Rhyne
Two
juveniles held in a Newport News detention center claim they were raped by two
other residents. The two boys sued the city, saying the city was at fault
because the facility was too crowded and did not separate juveniles based on
size or other factors.
A
few years ago, George Wallce, the longtime Hampton city manager, sued the city
for firing him.
What
do these two cases have in common, besides both being on the Peninsula?
Both
cases settled before going to trial. That’s usually a good thing, as it saves
everyone the time, stress and resources of a full-blown court proceeding.
And
in both cases, the city paid something out of city coffers — that is, they
paid taxpayer dollars — to settle the case.
And
in both cases, the public couldn’t find out just how much they were on the hook
for.
The
Newport News and Hampton city councils agreed to a gag order sealing the
settlement terms, including the amount paid out by the local government.
Wallace
and the city council eventually agreed to release the information when Wallace
later ran for a seat on the Hampton City Council.
A
reporter for the Newport News Daily Press reviewed
court records and minutes of the Newport News city council and found council
approved of a $2.6 million payment from its debt service fund to cover
"several recent legal settlements," though it was not clear whether
the juveniles’ case is one of those settlements.
When
asked why they agreed to keep the settlement amount confidential, four of the seven
Newport News council members punted by saying, basically, "the lawyers
told us to do it." Two members said they didn’t remember what they
discussed about the settlements, and the seventh member lamentably replied,
"I don’t have any objections to the taxpayers not being able to know, as
long as it doesn’t violate our policies."
A
settlement doesn’t just seal itself. One or both of the parties have to ask a
judge to seal all or part of the settlement. And an attorney is not likely
going to ask for matters to be sealed without prior consultation with his or
her client. That means that the Newport News city council had to, at some
point, give some instructions to its attorney that it was OK to either ask for
a gag order or to acquiesce in the other side’s request for confidentiality on
the amount paid to settle the case.
Later,
the city has to approve of the appropriation of funds to pay the settlement.
The Freedom of Information Act does allow the city council to meet privately to
discuss actual litigation. But this provision allows for discussion only. Any
votes, including ones to appropriate money, must be taken in open session.
It
has been argued that because the government’s insurance pays for a lawsuit
settlement, the taxpayers are not directly affected. But the taxpayers have
been paying the premiums to carry that insurnace. And as anyone who’s watched
their car insurance premiums rise after an accident knows, the city’s liability
insurance policy premiums will surely rise, too. And the taxpayers will pay for
that increase.
These
two Peninsula cases are by no means isolated events. As long as there will be
accidents on public property, mismanagement of government programs and
disgruntled public employees, there will be lawsuits against a local government.
Settling cases may frequently be the most prudent thing to do, and it is
generally understandable why some settlement terms are kept confidential. There
might be a great deal of private information about an employee’s medical
history, for example, in a case alleging discrimination under the Americans
with Disabilities Act.
In
the Newport News case, there is general agreement that sexual assault victims
need protection, and that even juvenile offenders deserve some protection if
they mean to eventually become productive members of our society.
But
this isn’t a case where the public is clamoring for details about the incident.
This is about knowing the basic fact of how much of the public’s money the
government is spending. Fiscal transparency should be the standard for all
local governments, especially in these times of economic hardship.
Local
governments should resist the urge to suggest or agree orders sealing
settlement amounts. Local government officials usually take great pride in
being well informed and in taking decisive action. It is therefore
disheartening to hear the Newport News council members give such a scant
defense of their part in or knowledge of keeping the settlement amount secret.
And
as for the comment about being OK with the taxpayers not being able to know?
Let’s just say the citizens of Newport News now have extra incentive to keep
their local government open and accountable.
Megan
Rhyne is Executive Director of the Virginia Coalition for Open Government, a
non-partisan, not-for-profit organization based in Williamsburg dedicated to
keeping government records and meetings open to Virginia citizens.