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Gov. Branstad should eschew transition period opacity

BY DI EDITORIAL BOARD | MARCH 31, 2011 7:20 AM

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Gov. Terry Branstad’s reluctance to release details pertaining to the development of Executive Order 69 is drawing some fire.

The order, which bans the allocation of public money to projects entered into using project-labor agreements, was one of Branstad’s first steps in office, and its formulation may be beyond public scrutiny under Iowa’s open-records laws. But access to these policy deliberations, even if it is not provided for by law, is crucial to transparency; decisions made during the transition period should fall under open-records purview.

The debate over the executive order led the Iowa State Building and Construction Trades Council to request documents related to the writing and development of the order. The Governor’s Office denied that request, stating that the public-records law only covers work in the Governor’s Office after the governor was sworn in — which does not include the documents related to the development of the executive order, written by the governor’s transition team in November 2010.

Project-labor agreements are contracts in which the buyer and the contractor agree to certain terms for a construction projects, including hiring and scheduling issues. Opponents of project-labor agreements argue that they unduly inflate the costs of projects by allowing buyers to select contractors that agree to the terms, not merely the lowest bidder. Additionally, these agreements require nonunion contractors to pay union wage rates. Proponents of using project-labor agreements such as Cedar Rapids Mayor Ron Corbett (who spoke to the DI Editorial Board in February) feel that these agreements are beneficial because they allow local governments to contract with entities that ensure fair wages, working conditions, and a reasonable timeline for a project’s completion. “Not having a project-labor agreement is like an orchestra without a conductor,” Iowa State Building and Construction Trades Council President Bill Gerhard told the Editorial Board.

Aside from the debate over the executive order (we have previously condemned it), the public has a right to information regarding its formulation. “It’s important we have transparency,” Gerhard said. “It’s important to know the reasoning behind executive orders and how it came about.” The concerns Iowa’s unions have about executive order 69 are over contributors to the policy; the council, in particular, worries that some interest groups may have had undue influence.

Letting the public know the players in policy formation is crucial. This is not a partisan issue: Government officials, regardless of political orientation, should not be able to formulate policy in secure opacity.

Unfortunately, this opacity may be completely legal. If the documents in question are held by the Governor’s Office, they are most likely a public record, Drake University Professor Kathleen Richardson told the Editorial Board. Richardson is a member of the Executive Council of the Iowa Freedom of information Council. Chapter 22 of the Code of Iowa has a stringent definition of what constitutes a public record. While this definition may be met if the documents are held by the office, it may not be if they are held by a privately funded transition team — leaving a large hole in access to policy-formation documents.

This type of problem frequently occurs in a similar legal area to public-records law: open-meetings law. If government officials have meetings before they are sworn in, the minutes of those meetings are technically not available to the public.

While some privacy for citizens before they become public servants is understandable, this raises significant accountability concerns. Gubernatorial candidates should be beyond the purview of open-records laws (excepting campaign donations, of course), but inclusion of transition meetings and teams would be justified — particularly when it comes to decisions that never see a vote.

All is not lost. The courts can determine that certain organizations (even ones that are not officially part of the government) do fall under the open-records law, as they did with the Iowa Association of School Boards. Hopefully, the Governor’s Office will choose to comply with the request and make such a legal battle unnecessary.

Public accountability is paramount to a thriving democracy.


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