Secrecy is in; you’re out

It took a protracted and bloody civil war to assure that “Government of the people, by the people, for the people, shall not perish from the earth.”

All it takes to let it slip away is cowing to special interests, one piece at a time.

These may seem like trivial and petty concerns taken individually, but they just keep stacking up, one straw on top of another on the backs of the people.

Take the latest affront from the 2007 Legislature. The Nevada State Contractors Board asked for a bill that would have put into statute the board’s past practice of disclosing complaints against licensed contractors made in the past five years. Apparently the board had been sued over this and it was trying to get legislative cover. Instead, state Sen. Warren Hardy, R-contractors, jettisoned that proposal.

Under the law, a board spokesman says it is now barred from even admitting a complaint has been filed against a contractor until the complaint goes before the board.

Sen. Hardy, who is the president of the Associated Builders and Contractors of Las Vegas, said he thought, recalling the debate at the time, that complaints became public as soon as they were determined to be valid and that was supposed to be done in two days.

His stated reason for keeping complaints confidential was given during that debate over the statute. “This could be used as a weapon against certain contractors, if someone targets this contractor,” Hardy insisted. “If they are put on the Web page with the complaints, the damage is done to that contractor before any of this is adjudicated. I cannot support this portion of the bill.”

The law now reads: “The existence of and the personally identifying information in a complaint … are confidential,” and remain that way until the time (if ever) when the board initiates disciplinary action. And it has two years to do that. Knowing how the wheels of bureaucracies grind, bet the over and not the under.

The argument is that contractors might be unfairly targeted by certain unions trying to organize or by unscrupulous competitors, and that the volume of complaints alone, no matter their validity, might scare away customers. And if the volume of complaints is a valid reflection of poor workmanship, well, caveat emptor.

Despite our disagreement over openness, Hardy says the bill added consumer protections, and, in fact, he would like to see the board make it tougher for contractors to become licensed, so the bad ones are weeded out on the front end, not caught after shoddy work.

The frivolous complaint argument is the same one made by judges who set up a system in which complaints about them must be filed in secret until such time as a certain level of non-frivolousness can be established by a secret panel of fellow legal practitioners.

A similar argument was made at the Nevada Board of Medical Examiners when they removed from their Web site all malpractice judgments and settlements against state doctors. Wouldn’t want patients scared off by a couple dozen mishaps and a handful of corpses.

That’s why when a public employee fails to adequately do his job, it is a “personnel matter” and not the business of the people who pay his salary. Was the public worker punished, demoted, fired? Or did he get a promotion six months later? They just won’t say.

That’s why when a business protests its tax bill in front of the state Tax Commission, the commissioners think they can hear evidence and deliberate in secret, basically leaving the people with a form of taxation without representation — and no tea bag to show for it.

But if you or I, those of us without the privileged status of having bureaucrats and elected officials at our beck and call, get accused of something and get dragged into civil or criminal legal proceedings, it’s a matter of public record from the start, open for all the world to see. As it should be. For all the people.

Secrecy is a corrupting influence, allowing the privileged few to play by a different set of rules from the rest of us.

James Madison in 1798 warned about allowing government the power to stanch the free flow of information, describing it as “a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thererto; a power, which more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

If we are “dedicated to the proposition that all men are created equal,” then we must not allow some to be judged in secret. We must not allow a government of the contractors, by the judges, for the public employees.

Thomas Mitchell is editor of the Review-Journal. He writes about the role of the press in society and access to public information and meetings. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.