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Commentary

December 23, 2005

  A year ago County Executive Chris Coons and an expanded County Council led by Paul Clark took office pledging a policy of 'transparent' government. Both have, indeed, done several things to make county government more responsive than it was formerly. They have participated with the respective Council members in town meeting-style 'listening sessions' in every Council district. The quinquennial comprehensive planning process has been opened to any resident who wants to participate. Meetings of county officials with community groups and others are easy to come by.

In several situations in recent weeks, however, some of the transparency has been cloaked by a curtain of secrecy drawn around matters of the public's business. The administration has informed Council, but appears to want that information to remain in-house.

Most recent of the incidents occurred on Dec. 20 at a meeting of Council's finance committee. It involved a dispute between auditor Robert Wasserbach and Ernst & Young, the accountant firm that was hired to assess the extent of financial risk which county government has. Wasserbach told the firm that he and the audit committee which oversees his work "do not feel the product (the risk assessment) is commensurate with the cost of the services provided." He said county employees did "much of the work" and the audit report contains "major deficiencies." He listed 14 of them in some detail. Value of the contract with the firm is $49,500.

It doesn't take one learned in political science to conclude that some negotiations are in the offing to resolve the dispute and that the path potentially could lead to a courtroom. That conclusion was used to justify the committee's going into executive session to "discuss pending or potential litigation."

Talking about legal strategy is one of the topics shielded from public view by the state Freedom of Information Act. Although the law specifies that public disclosure should be of the kind which would jeopardize the government agency's position, the provision -- like other shields in the only mildly effective law -- is frequently interpreted in its most liberal sense. And, of course, no public agency is likely to pay much heed to the fact that the law does not prohibit going beyond its exceptions in the cause of more openness.

Before clearing the conference room and shutting the door, Councilwoman Karen Venezky, who chairs the finance committee, declined to elaborate on what sort of strategy was at issue. Pressed on that point, she told Delaforum, "I don't think [responding] would be appropriate. I'm reading what I am supposed to be reading." That was a deliberately vague statement apparently intended to be put on the record to satisfy requirements of the state law.

Prior to that, the public -- and evidently some of the Council members -- heard about the dispute for the first time. It would be easy to say 'Who cares?' and dismiss a bean-counter dispute as a non-issue. However, anyone who has been watching Council would immediately recognize a situation rife with political implications.

Former auditor Robert Hicks was summarily fired early in the year by a divided Council. Matters which led to that action centered on his having embraced an Ernst & Young recommendation, in its audit of the county's fiscal 2004 financial report, that the county conduct commission a risk assessment.

Councilman Penrose Hollins, who supported Hicks at the time, picked up on that at the committee meeting. He questioned why some, but not all, members of Council received copies of Wasserbach's letter to Ernst & Young. He sarcastically recalled that one of the complaints against Hicks was that he did not keep Council informed about his activities. "Apparently that's all right now," he said. William Tansey said he also had been "overlooked" in the distribution of the letter.

Hollins later told Delaforum that a "double standard" was applied in the committee's support of Wasserbach in the dispute. "If [Hicks] had questioned the external auditor, all hell would have broken loose," Hollins said.

Although committee members at the conference table had copies of the Wasserbach letter and the 130-page report that was its subject, Venezky initially rejected a request by long-time civic activist Marion Stewart that those documents be made available to the public. After the executive session -- which lasted just shy of an hour -- Venezky provided copies, pointing out that the report was still considered a draft. She said her doing so was making an exception to a requirement that a formal Freedom of Information Act request be submitted in order to obtain access to them.

The report discusses levels of the financial risk inherent in 55 county government activities. The only one said to pose that highest level of risk is liability associated with two long-closed landfills.

The Wasserbach-Ernst & Young matter followed by a week a closed-door session of Council's executive committee at which it was briefed on the administration's decision to settle lawsuits by developer Frank Accierno involving the Christiana Town Center shopping center. Immediately after that session, information officer Christy Gleason distributed a press statement announcing the settlement.

It was not clear how much legal strategy could be involved after lawsuits are settled nor how disclosing a settlement about which the other party already was necessarily aware would jeopardize the county's position.

Two weeks before that, the executive committee was told -- again privately -- that the internal police investigation of how off-duty jobs were arranged and paid for had been completed. Sources have revealed that a police officer alleged to have forged signatures on checks, some of which were payable to himself, has been dismissed from the force and three other officers disciplined for improprieties in handling an off-the-books fund.

Citing a paragraph in state law which mandates that "all records compiled as a result of any investigation subject to the provisions of this chapter and-or a contractual disciplinary grievance procedure shall be and remain confidential and shall not be released to the public," Gleason declined to confirm or deny the reported discipline. County officials have interpreted that to mean they cannot let the public know, in a general-terms way, what is going on.

Gleason did confirm, however, that information from the investigation has been referred to the attorney general, who will make a decision on whether to instigate criminal prosecution. Forgery is a felony.

In that instance, the entire county police force has been tainted with an implication of corruption. Withholding information leaves the public to speculate on how widespread that might be. There is also a political angle in that the 'discovery' by the current administration of the long-standing practice of how off-duty jobs for nonprofit organizations were handled and paid for led to the resignation of former police chief David McAllister, a protégé of the former Gordon administration. The agreement under which McAllister left contained provisions imposing apparently airtight secrecy over how it came to be.

When it comes to transparency it's time for county government to let practice catch up with policy.

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