When Representative Goverment Fails
As a society, we use a representative form of government. That means that we choose one individual to take the time to study the issue and to attend the meetings so that hundreds or thousands of others don’t have to do so. We trust that person to speak for us, to defend our interests, to keep us informed, to involve those who are interested in the issues, and to make the best decision for the community.
However, it is human nature to dislike being asked to explain one’s self, to justify controversial decisions, to answer questions, and to express ideas that we know some of the neighbors will not like. It is so much easier to exclude the people that one represents from the process and to just make the decisions. It takes less time; you don’t have to repeat yourself; and you don’t have to think of all those exceptions and competing ideas. It is just less stressful to shut out everyone.
It is because of this human tendency that the Open Meetings and Open Records laws exist. These laws are the counterweight to the natural desire to be liked and for representatives to feel that they own the information to which their position gives them privileged access. The Nebraska laws permit exceptions to the openness requirements specifically for when the government deals with employee discipline, negotiations regarding wages and purchases, and strategy sessions where the government entity is a party to a lawsuit. The law also permits other undefined things which only a judge can decide if they are justified on a case-by-case basis. One thing the law specifically requires to be open to the public is policy discussions. It requires open meetings and records not only on just the vote regarding policy but also on the discussions that help the representatives make a decision as to what policy is best.
The public has a right to know what the representative hears, what ideas factor into their decision making process, who is pushing for what, and the concerns of the representative. How does the elected person make their decision? This one individual usually represents hundreds or thousands and, sometimes, millions of people. The people they represent have a right to influence them and to know who else is influencing them.
The primary law enforcement office of the State is the Attorney General. It is this elected individual’s job to make sure the laws of the State are enforced. This includes the open meeting and open records laws. It is not this individual’s job or the job of his office to make policy but rather to enforce the policy that others make.
However, individuals in the Nebraska Attorney General’s office have taken a personal interest in water policy, and have done so for several years. They have helped craft the language of interstate water agreements and, then, lobbied the legislature and NRDs to adopt policy that will conform to these agreements. Where the Attorney General’s office has crossed the line is where it has cloaked these discussions in secrecy and exempted themselves and those with whom they talk policy from the Open Meetings and Open Records laws, saying that the lawsuit strategy session clauses of the Open Meeting laws trump the requirement that policy discussions be public.
Human nature prefers to exclude the stress of having to listen to critics and to answer questions. Many elected board members welcome it when the chief law enforcement office of the State says they can talk policy in secret, sub-committee meetings and closed door board meetings. Who will challenge the powerful executive office when it threatens the policy branch of government with exclusion from the policy meetings, especially when it is so much easier and desirable to close the doors anyway?
One of the reasons the judicial branch of government exists is to keep the other two branches honest. When the executive and/or legislative branches decide to collude against the people they represent, then it is the job of the judicial branch to bring these offending parties back into alignment with the laws and Constitution.
The biggest hurdle is the cost and time it takes to cause the judicial branch to become involved. It takes a persistent and well-funded individual or group of individuals to cause the judicial branch to hold all of the parties accountable, especially when members of both the policy and executive branches can use tax money and are still determined to find ways around the Court’s directives. If that individual or group of individuals doesn’t exist or cannot afford to invoke the system, then the representative form of government fails.