Freeman Editorial - Rochester Has No Open Government

RIDICULOUS IN ROCHESTER

Editorial in Daily Freeman — February 10, 2007

The Rochester Town Board, duly elected to office by town residents, needs to take control of the reins of government and refresh its understanding of what democratic governance is all about.

That means recognizing that democratic government is nothing of the sort unless it is open government. It also means that the town attorney's proper role is to give legal counsel — not call the shots about when town officials may speak or about what.

The board has created an untenable situation for itself by choosing to err on what it mistakenly defined as the side of caution, allowing legalism to triumph over democratic process. When the board had questions to ask Manuela Mihailescu, a candidate for the town's Historic Preservation Commission, it chose to do so behind closed doors.

Ridiculous. Interviewing candidates for a town's Historic Preservation Commission should be a public act in open session. If the U.S. Senate's Judiciary Committee can interview candidates for appointment to the Supreme Court of the United State in open session, surely the Rochester Town Board can interview candidates for a volunteer Historic Preservation Commission in open session.

Now that the whole thing has blown up into a huge brouhaha, the board has compounded its first error by asserting it cannot give its side of the story. This is false. Robert Freeman, the executive director of the state Committee on Open Government, puts it plainly: "There's nothing in the Open Meetings Law or any other law that forbids them from discussing it. What they're really saying is 'We don't want to talk about it.'

This is the public's business, after all. If there is a question of propriety regarding an alleged pornographic Web site, as Mihailescu says there was posed to her, who, exactly, was protected from what by posing a legitimate question behind closed doors? If Mihailescu were so involved, then she ought to be expected to explain herself. If she were not so involved, then she should be able to explain it and, thank you very much, our mistake, let's move on. And anything in between is OK, too.

But even if there is more here than has been revealed by Mihailescu, there is no question known to jurisprudence that cannot be legally asked publicly in good faith. Journalists do it all the time. As far as we know, no one has ever been successfully sued for asking questions. It is the reckless assertion of the defamatory as fact that is illegal.

The way out for the Town Board is simple. Reconvene for the purpose of completing the interview of Mihailescu, if she will consent to reappear. Do so in public session. Demand that the audience behave itself and be prepared to remove anyone who breaches decorum. Then pose whatever questions board members feel are pertinent. Hear the responses. Let the public decide for itself what it thinks of the matter. And vote however you will to fill the spots on the Historic Preservation Commission, with or without reference, as individual members see fit, to particular qualifications — or dis-qualifications — of candidates chosen or rejected.

The whole episode points out something all too common in the Mid-Hudson Valley. The presumption by local governing boards that democracy well tolerates a caution on the side of secrecy. That is exactly backwards. The presumption — the caution, if you will — should be in favor of openness, for it is democratic rule that always should be given the highest value by democratic boards when principles collide.