August 29, 2008

Montgomery County’s Intermodal Secrecy

The Montgomery County Board of Supervisors this week launched a last-ditch effort to block an intermodal rail yard planned for Elliston. Supervisors unleashed their lawyers, and thanks to a loophole in state law, they did it secretly.

The lawsuit didn't come as a surprise. Supervisors, many county residents and neighbors of the Elliston site have fought the intermodal yard since it was first mentioned. They failed to convince state leaders and Norfolk Southern to go somewhere else, so now they will beg the courts for relief.

State open meetings law allows officials to go into a closed session to consult with their attorneys. That's a reasonable accommodation to balance the public's right to know and government's need not to tip its hand during litigation.

What the law does not allow is for government bodies to take action in secret. Citizens get to know how their elected officials vote and what official actions they approve. Unless, it turns out, the official action is filing a lawsuit in a closed session.

Montgomery supervisors reached a consensus to file their lawsuit during a two-hour secret meeting and did not even tell the public until the next day. They committed taxpayers to a course that could cost $250,000 or more without the courtesy of a public vote.

State open government experts say supervisors did not break any laws because they acted by consensus. Taking a vote in a closed session is illegal; reaching a consensus is not. The only vote will come later, when the legal bills are due, but by then it will be too late to change anything.

It is hard to imagine what harm would have come from a public discussion and vote. Lawyers laid out their legal strategy the next day. Secrecy protected only supervisors' delicate ears from citizens who might not consider a lawsuit a wise use of public funds.

As long as there are loopholes in open government laws, there will be officials who cowardly use them to hide from their constituents.

The General Assembly could close this loophole when it convenes again next year, but that might be hoping for too much from lawmakers who exploit their own loopholes to avoid

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