The First Amendment is not a suggestion

In an era of increasing governmental secrecy (see “Secrecy Nation”), Haywood County Board of Commissioners Chairman Mark Swanger is a maverick. His guiding principle is openness: open meetings, open documents, open government, period.

During the past year, Asheville and Buncombe County have held secret meetings involving selected City Council and Board of Commissioners members — but not enough to constitute a quorum — seeking to address the looming water crisis. (The Regional Water Authority was dissolved June 30; at this writing, the complex dispute over the area’s water supply appears headed for court.) And though both Mayor Charles Worley and Buncombe Chairman Nathan Ramsey maintained that those closed-door sessions were legal, attorney Mike Toddy of the North Carolina Press Association flat out disagreed, saying meetings violated both the letter and the spirit of the state’s open-meetings legislation.

Although Swanger declined to comment directly on those meetings, he did make his own position clear: “It is not good public policy to try to find ways to get around open meetings. It erodes public confidence if you are perceived to be looking for loopholes.”

Swanger has bent over backward to make Haywood County governance open and accessible to the people. First as school-board head and now as chairman of the county’s Board of Commissioners, he has spearheaded new rules of conduct. “Some previous boards felt choreographed, like a dance routine,” he observes. “By comparison, our meetings now are like making sausage: It may not be pretty, but what comes out is good.”

In recognition of his efforts, the N.C. Press Association recently gave Swanger its 2005 Lassiter Award, an honor bestowed annually on the public official who most exemplifies the state’s legal mandate to govern in the sunshine. In a recent interview, Swanger spoke candidly and at length with Xpress, sharing his thoughts on open government. Here’s what he had to say:

Xpress: Did your career with the FBI have any bearing on your attitude about openness in government?

Mark Swanger: I graduated from Brevard High School in 1969 and accepted an appointment with the FBI as a support employee in Washington, D.C. I worked full time during the day and attended college at night. I received a Bachelor of Science degree in 1973 from American University. It was during this time frame that my views and opinions on the First Amendment and open government began to crystallize.

In 1975 I was appointed a special agent with the FBI. I conducted investigations involving foreign counterintelligence in Washington, D.C., and organized crime and undercover assignments in Cleveland and Youngstown, Ohio. But my primary area of expertise was the investigation of corrupt public officials. The facts and circumstances of these investigations were identical to Watergate in one important way: The criminal conduct could not succeed unless the press and the people were deceived. This deception can be overt, or it can be more subtle. The subtle deception can often be just as dangerous, because conducting meetings in secret, manipulating the media [and] conducting meaningless public hearings and meetings after the real decisions have already been made can become institutionalized over time. It can become the norm — just “business as usual.”

Xpress: How does that happen?

MS: When a newcomer is elected to office, he’s likely to be inexperienced and unsure how to proceed. He can be systematically sucked into the culture of secrecy.

Xpress: Did you have other formative experiences at the Bureau?

MS: In the mid-1980s, I was promoted to FBI headquarters as national coordinator of organized-crime and public-corruption investigations. I oversaw literally hundreds of public-corruption cases that ranged from the investigation of governors and members of Congress to small-town mayors and law-enforcement officials. Again, the common theme was evident — the conduct could not survive unless the press and the people were misled. The media was often responsible for the ultimate collapse of these conspiracies in that a reporter, sensing [that] something just didn’t smell right, would dig around enough to force the corrupt officials to make a mistake — thereby creating sufficient predication for an FBI investigation.

Xpress: How does that experience inform your views today?

MS: Earlier I said that subtle deception is so very dangerous because it can be institutionalized as business as usual. Therefore, the challenge and obligation of every elected and appointed official is to create, nurture, promote and protect a culture of government transparency. We must not accept exemptions based on phrases such as “law and order,” “public safety” or “national security” or other high-minded-sounding rationalizations, for to do so would legitimize behaving in an undemocratic manner in the name of democracy. The First Amendment is not a suggestion. We must institutionalize open and honest government in a way that not only obeys the letter of our Constitution and open-meetings laws but their spirit as well.

How can you argue against openness? You can’t articulate an argument about that.

Xpress: Some politicians seem to think that transparency is a threat to their power or electability.

MS: I believe voters are more inclined to have patience with an official they trust. They are more likely to accept a decision contrary to their view if they know the process was righteous. And they are more likely to vote for candidates they view as trustworthy. It is also likely that media coverage of a controversy is less damaging if the public official is believed to promote open government.

Xpress: North Carolina law does require closed meetings for some matters. How do you handle those?

MS: We in Haywood County have taken steps to ensure that minutes of closed-session meetings are sufficiently specific and detailed to allow any person not in attendance to know exactly what was discussed and why. This requirement was recently made a part of the county manager’s job description. I know most boards and board attorneys would likely disagree, but I have no objection whatsoever to recording closed-session meetings. After all, disclosure would occur only after the purpose of the closed session is no longer valid. If you’re ashamed to have your closed-session comments made public, then maybe you shouldn’t have said them in the first place. Such recordings, once released, would give the public another glimpse into the thought process that led to decisions affecting their lives.

Xpress: You worked toward greater transparency as chairman of the Haywood County School Board and now as chairman of the Board of Commissioners. What triggered your decision to run for office?

MS: Previous boards were often dysfunctional, used their power in an arrogant way, and merely winked at open government on their way to making decisions with little or no public input or scrutiny.

You’ve got to make it a campaign issue. Someone has to bring it up.

Let the sun shine in…

After campaigning on an open-government platform, Swanger led a push to bring greater openness to Haywood County government. Here are some recent changes he helped bring about:

• Prohibiting last-minute additions to the agenda — the public and media know what will be discussed. No last-minute switching of agenda topics to avoid controversy or media scrutiny is allowed.

• Controversial, important or complicated issues are tabled for at least one meeting to accommodate media reports, public input and board-member study and reflection.

• Every other board meeting is now scheduled in the evening hours to encourage attendance.

• Public hearings are now held in the evening. No action can be taken for at least 48 hours after a hearing, so that public input can be weighed and researched, if necessary.

• All support/background information furnished to board members is available for public and media inspection at the same time it’s provided to board members.

• Closed-session topics are reflected on the agenda.

• The public has the right to address the board before each meeting.

• The media may question the board following each meeting and also during the public-comment period.

• Audio and video recordings are now made of all meetings and are promptly broadcast on the government channel. Copies are also placed at all county libraries and in the county manager’s office.