Daylight (Part 3 in a Series)

The Scene from Whitewater, WisconsinOne finds oneself with a question, when there are gaps in a public record, when there are easily-avoidable deficiencies of open government: What will one do about it?

A good method in this matter is deliberate, dispassionate, and diligent. A few thoughts:

1. Foundation. One looks at state and local provisions for public records and open meetings: Wis. Stat. §§ 19.31 – 19.39, Wis. Stats. §§ 19.81 – 19.98, municipal ordinances, and school district policies (1, 2).

2. Methodical. There should be a discernible method to one’s inquiries. See Steps for Blogging on a Policy or Proposal. Concerning open government, of all things, one shouldn’t undertake sudden or surprising steps.

In a situation like this, the first step should be to make an inventory of which records are now publicly available, which are now missing, and then craft formal inquiries accordingly. It’s worth taking one’s time and being thorough.

3. Foresight and fortitude. It’s right that one moves deliberately and hopefully, but it makes sense to look ahead to possible setbacks.

One can expect, as someone recently suggested, that there may be efforts to waive open-government provisions even in circumstances ‘not necessarily emergencies.’

Not everyone sees these matters the same way. One hopes for the best, but should plan for encountering and overcoming possible challenges.

4. Tranquility. Wholly serious, here: a foundation of open government is right in itself and offers a more orderly, more peaceful, more dependable way to approach one’s community. It’s the non-partisan foundation of a well-ordered politics.

In these last ten years that I’ve been writing in this small city, so many officials have held office: two city managers, three chancellors, four district administrators, and dozens upon dozens of other municipal, school district, and university officials. A commitment to simple principles would have produced more stability and been far better for Whitewater.

Whitewater hasn’t a need for more officials; steady ones are enough. Open government provides that steadiness.

Whitewater hasn’t provided the right political climate. She’s followed a model with a high and narrowly circumscribed perimeter fence. This has made work much harder for good leaders, and much easier for poor leaders. It’s a self-destructive approach.

A consistent public commitment, daily lived, is better than any press release, presentation, proposal, or project.

Previously: Twilight (Part 1) and Midnight (Part 2).

Midnight (Part 2 in a Series)

The Scene from Whitewater, Wisconsin Open government is right both in itself and in consequence: a free society confers political power only for limited & enumerated purposes. Those who confer this power have a right of oversight and a sensible obligation to assure that power’s exercise remains limited & enumerated.

The right derives both naturally and by positive law.

In a well-ordered community, a community worthy of America, residents and officials to whom they confer limited & enumerated authority see the importance of open government. Federal, state, and local provisions – if sound – advance open government.

These principles, established and mostly followed in Whitewater these last several years, now seem to have fallen out of fashion (as though fashion mattered).

Millions for a municipal government with a communications manager, but meetings left unrecorded, inconsistently recorded, on a haphazard schedule.

Tens of millions for school district upgrades, but for the best records of public meetings, of public officials, acting only through conferred authority, well, that’s not a priority.

The same officials who know how to make a recording of a parade or concert (all good efforts) presumably know how to record a public meeting (a recording surely no less important to public business). If, among those in the Municipal Building or Central Office, there’s a particular amnesia that impairs operation of video equipment, then I don’t know of it.

English is my first language, and so I have spoken and written in it for many years. Here’s the simplest way to describe a situation like this:

We’ll do something, sometimes, when it seems convenient, based on all our many priorities, as we alone order those priorities. What are you going to do about it?

And so, one confronts this concise question: What will one do about it?

Tomorrow: Daylight (Part 3 in a Series).
Previously: Twilight (Part 1 in a Series).

The Newspaper-Caused Public Records Problem

Not far from Whitewater, Janesville’s local newspaper finds itself in an access-to-information conflict with the Janesville School District.  There’s no surprise in any of this.  (Quick note: I’m using that paper as an example because it’s close-at-hand.  One could find other examples easily enough.)

For years that paper has ridiculed citizens’ petition efforts, toadied to business insiders, pushed government spending for those same business factions, included itself in a supposedly elite group (oh, brother!) of Janesville movers-and-shakers, all-the while producing some of the weakest editorials of any paper in Wisconsin.

It’s no wonder that Janesville’s school superintendent shows no respect to that paper: public records requests are either ignored or answered with what seems to be a laughable inadequacy. Having spat on so many who exercised free speech in that city, Janesville’s waning paper now finds itself without the clout to assure full compliance with public records requests, requests that are, after all, a matter of law.  Wis. Stat. §§ 19.31-19.39.

It seems unlikely that the paper will spend the time and money to litigate public records requests to assure full compliance.  This unwillingness to commit the time and effort is no doubt evident to Janesville’s school district – they can probably spot a paper tiger (yes, it’s an awkward play on words) when they see one.

That’s unfortunate, but it’s more than a Janesville problem – it’s a problem for others nearby.  Officials’ ability to brook lawful requests there will likely influence policymakers nearby, and encourage them to provide inadequate answers, too.

That leaves the rest of us – residents, bloggers, etc. – starting at a disadvantage: the Janesville paper’s toothless response will lull policymakers in other communities to assume falsely that they’ll be able to disregard requests as Janesville’s policymakers have done.  One will have to begin every step with the commitment and expectation to enforce those rights at law.

In this environment, it won’t matter what one says, hopes, or expects – it will only matter how one proceeds.  Proceeding may be inconvenient,  but the alternative is far worse: enduring passively the infringement of one’s right to open government.

What a mess it is that print is leaving left behind, that others will have to clean up.

4 Points About Public Records Requests

So a local paper complains that a local school superintendent won’t comply with a public records request, won’t put the paper on a media contact list, and simply ‘must’ improve communications.  

A few points —

1.  Compliance with a public records request isn’t a ‘communications’ issue; it’s a legal issue, of rights of residents under Wisconsin law.  

2.  Perhaps there would be a greater willingness of public officials to comply with the Public Records Law (Wis. Stat. §§ 19.31-19.39) if newspapers hadn’t made clear that they’re too weak or too miserly to challenge officials’ non-compliance at law.

3.  A newspaper can say all it wants that it’s the ‘leading media company’ of its area, but that doesn’t mean much in a diverse media environment in which newspapers are doomed (as almost everyone knows them to be).  

In any event, social media messaging in many communities – by itself – vastly outstrips the reach of any media company.  Sorry, gentlemen, there is no ‘leading’ force anymore.  

4.  When a resident or publisher thinks about pursuing an issue in which a public records request might be needed, he or she should consider what might be next if officials slow-walk, respond only in part, or simply deny the lawful request.  One would prefer that local officials felt a duty other than self-interest disguised as public interest.  What one would prefer describes – less and less – the environment in which we live.

Residents, bloggers, and community groups that seek information under a public records law should be prepared to defend that request at law.  One hopes that won’t be necessary, but rights are more than hopes, and so one should think ahead, even before a request is submitted: what’s next at law if officials obstruct this request?  See, along these lines, Steps for Blogging on a Policy or Proposal.

That’s a big commitment, but a commitment one should be prepared to see through.  

The Public Records Law Still Stands

After a push to alter Wisconsin’s Public Records Law (Wis. Stat. §§ 19.31-19.39), we’re now secure with the original law intact.  

Below one will find a recording of Wisconsin A.G. Brad Schimel’s Open Government Summit, held earlier this week at the Concourse in Madison.  

J.B. Hollen, Schimel’s immediate predecessor, started strongly in favor of the Public Records Law but was less supportive in his second term.  A.G. Schimel’s approach is better for the public, although it’s disadvantageous for public officials seeking to conceal information from the very residents to whom they are legally obligated.

(It’s also helpful that support for the law is widespread, and not confined to the party in opposition.  Two of the key opponents of gutting the law have been the MacIver Institute, a conservative think tank, and Rick Esenberg’s Wisconsin Institute for Law and Liberty, a conservative-leaning public interest firm.)

But one has this problem, that has grown worse over these last few years: too many officials, in cities, towns, and universities, have decided that they can reply to a public records request however they’d like.  Replies like this are dares: will you go to court over this?  Alternatively, will you accept what we’ve supplied, however inadequate in reply it so obviously is? 

Some denials may be over fair questions of interpretation; that’s not what I’m describing.  Many denials are a test of one’s citizenship, of one’s rights in a free, well-ordered society: can someone successfully compel others to accept less than their rights require, consigning them to an inferior position in disregard of the law?

There’s no way to know how a requester will respond to an insufficient reply until the need arises, of course.  It’s helpful, though, to state plainly a path one will follow.  Having stated as much, officials will not be able to say they’ve been blindsided.

This summit was long, I know, and time is precious.  Still, there’s much in here, useful for thinking about government, on one’s own, rather than relying on officials’ superficial, self-serving declarations.  

Biting the Hand That Fed Him

Janesville City Manager Eric Levitt has decamped to Simi Valley, California. Readers will recall that Mr. Levitt touted the supposed benefits of a Generac-supporting ‘Innovation Express’ bus costing hundreds of thousands in public money. He kindly visited Whitewater last budget season to ask Whitewater taxpayers to kick in for a private company’s needs. (See, Whitewater’s Common Council Session of 11.20.12: 25 Questions about the Generac Bus.)

Overall, I’d say the press in Janesville handled Levitt gently, despite that city’s chronic sluggishness.

(Perhaps Mr. Levitt got out just in time: one reads that the Pulitzer-prize winning Washington Post reporter Amy Goldstein’s writing a book about ongoing economic frustration in Janesville. Note to Whitewater City Manager Clapper: (1) you won’t have Levitt to beg for more taxpayer money for the bus come this fall, but (2) you probably wouldn’t benefit from his help at this point, anyway.)

Yet, for all the supportive treatment Levitt received, he saw no need to reciprocate – he was willing to conceal from the press the circumstances of the departure of Janesville’s Economic Director:

JANESVILLE — Vic Grassman, Janesville’s former economic director who resigned March 15, was given the choice to resign or be fired, according to records recently received by The Gazette.

Former City Manager Eric Levitt said in March that Grassman resigned for personal reasons. Grassman is being paid through July 1.

The Gazette filed an open records request with the city asking for records pertaining to Grassman’s resignation. The records released by the city show the parties agreed Grassman would resign and be put on administrative leave, be paid through July 1 and be covered by the city’s insurance through July 31. The city also agreed not to fight Grassman receiving unemployment after that.

Grassman was hired in 2009. His salary was $96,913.

A letter Grassman gave to The Gazette, however, shows he was given the choice to resign or be fired….

Levitt, reached before he left for his new job in Simi Valley, Calif., said he did not release the termination letter to The Gazette because he viewed it as a draft, which is exempt under the Wisconsin Open Record Law.

An attorney for the Wisconsin Newspaper Association, however, said the letter could not be called a draft because it was distributed, in this case to Grassman. The attorney said it was his opinion the city should have released the letter to the newspaper.

Janesville City Manager Levitt received – and surely wanted – a positive description in the press. When the press wanted — and surely deserved under the law — an honest answer to a public records request, Eric Levitt didn’t reciprocate half so obligingly.

Polling and Public Records

Charles Franklin, a UW-Madison professor and pollster is now visiting at Marquette. He’ll be conducting polls on Wisconsin politics (recall, other topics) while a visiting professor.

Embedded below is a brief interview of Franklin, conducted last week.

Watch Polling specialist assesses recall movement on PBS. See more from Here and Now.

Writing at Fighting Bob, in a post entitled “Open records open minds,” blogger-lawyer Ed Garvey wonders if Franklin’s visiting professorship at Marquette will allow Franklin to leak polling data to Team Walker. Garvey thinks that, if Franklin were at UW-Madison (or on sabbatical from UW-Madison), then his polling data would be subject to an open records request (as it would not be at private Marquette):

….if he [Franklin] is on sabbatical and is being paid by UW I would argue that his polling information is a public record. Possibly he came to the same conclusion so someone switched it from sabbatical to visiting professor. I wonder who is paying him? I don’t know, but will ask and report to you. Wisconsin voters should have all the information they can get. Time for Marquette to open the books.

Garvey’s argument is unpersuasive. There’s no evidence that Franklin will leak any data to the Walker campaign. Second, much of Franklin’s polling data will be — as is common with many polls — publicly available, anyway. Garvey’s argument really assumes that (1) Franklin would publish results without underlying data on survey size, etc., or (2) would conceal from the public some questions entirely (passing that information along to Gov. Walker’s campaign). The first would reduce the poll’s credibility, and the second would be difficult for anyone at a large university — public or private — to conceal. I’ve no reason to think Franklin is so inclined.

Even for polling from the public UW-Madison, one can guess UW-Madison would argue that the law should recognize that some social science data were exempt from the Public Records Law (Wis. Stat. 19.31-19.39). At the very least, a university would be sure to object to records-access while data collection was ongoing, and during analysis. To do otherwise would be to leave academics’ research exposed before a study concluded.

Since timeliness matters so greatly for campaign polling, public-records access to data after an election would have historical value, but would come too late to alleviate someone’s immediate (unsupported) concerns about an election advantage for Team Walker.

In any event, Franklin will only be one of several pollsters (beyond the campaigns) surveying Wisconsinites closely this year.