Revamping Of Federal Sunshine Act Halted p..14

By: Debra Gersh Hernandez Administrative Conference of the United States loses funding sp.

AN ATTEMPT TO revamp the federal government in the Sunshine Act by a committee of the Administrative Conference of the United States came to an abrupt halt when ACUS lost its funding.
Even though the ACUS committee undertaking the review never had the chance to present its findings to the entire conference, it published a final report so that the results of its public hearing and numerous meetings would not be for naught.
An independent agency, ACUS's mandate was to reform the federal administrative process by improving administrative law and agency procedures.
The Sunshine Act committee was formed in February, after the commissioner of the Securities and Exchange Commission, Steven M.H. Wallman, sent the ACUS chairwoman a letter calling for a review of the federal Sunshine Act.
Wallman, and the other agency commissioners who signed the letter, said the act was not living up to its goals of increasing public awareness and enhancing agency decision making.
By impeding the ability of agency members to confer in private, Wallman and the others argued that collegiality was diminished, chilling their ability and willingness "to engage in open and creative discussion of issues."
Further, the letter stated, "The restrictions on closed meetings under the act often encourage agencies to engage in practices and procedures designed to avoid triggering the act, but which also frequently entail significant inefficiencies."
These restrictions have led to commissioners communicating through memos or staff people, and have resulted in a less spontaneous exchange of views during open meetings, the letter noted.
Despite their calls for reform, however, the commissioners stressed that they supported the intent and purpose of the act and did not want to see it abolished.
Another letter was received by ACUS in March, signed by representatives of the Federal Trade Commission who also called for a review of the act.
The ACUS Sunshine Act committee held a series of open meetings to discuss the matter with commissioners and media representatives, and held a public hearing in September to collect more viewpoints.
Testifying for the press at the hearing were attorney Lucy Dalglish and Knight-Ridder editor Reginald Stuart, then-Freedom of Information Committee chair and president, respectively, of the Society of Professional Journalists; and Quincy, Mass., Patriot News editor William B. Ketter, president of the American Society of Newspaper Editors. The testimony was supported by the SPJ, Newspaper Association of America, Newsletter Publishers Association, Radio-Television News Directors Association and Reporters Committee for Freedom of the Press.
"The bottom line is this," Dalglish said, "We strongly urge that the people who are covered by the law . . . don't change the law to accommodate the people who may be offended or intimidated by its intent."
Each proposal to modify the Sunshine Act is of concern, she said because, "No matter how well-intentioned, these proposals would gut the core of the Sunshine Act, requiring agency decision making to be public."
Ketter pointed out that "ASNE believes it is both premature and inappropriate for this special commission and the Congress to give up on the Sunshine Act.
"The proposed changes would signal a clear retreat from the act's mandate for public deliberations, and such a retreat ? at a time when our nation is experiencing unique public doubts about the actions and integrity of the federal government in general ? would not serve the public interest," he added.
"Even if the type of accountability sought by the Sunshine Act presently remains more aspiration than reality, it is an objective still worth pursuing without compromise," Ketter said.
Stuart told the ACUS committee that problems with the Sunshine Act ensue not because it is bad law, but "because people don't want to respect the law."
"And we keep saying over and over again, from the grass roots up, [that] the public is losing confidence in the government because the people who are appointed to those jobs don't want to carry out the law in the spirit of the law. That's not something that we can legislate," he said.
Despite their testimony, however, the ACUS committee reported that it was persuaded that the act "does need to be adjusted," and offered a series of recommendations.

Suggestions

The committee suggested that Congress establish a five- to seven-year pilot program that would give agencies more leeway for private meetings, "subject to appropriate memorialization," if they agree to limit notation voting, to hold votes and official action in public, and to regularly schedule open meetings.
Appropriate memorialization, according to the report, would consist of a detailed summary of the meeting released no more than five working days after it was held.
Further, when meetings to discuss adjudicatory matters are closed, as is allowed under exemption 10, the committee recommended that subsequent meetings to discuss the same issue need not be subjected to the notice and closure procedures of the act.
"I think we got far enough along to produce some document that can be useful in the appropriate forum," noted ACUS Sunshine Act committee chairman Randolph J. May, an attorney with Sutherland, Asbill & Brennan in Washington, following the last committee meeting.
With ACUS out of the picture, Wallman said he would take the report to the American Bar Association Administrative Law Section.
"I am convinced we need to continue," he said after the last ACUS committee meeting.
?("ASNE believes it is both premature and inappropriate for this special
commission and the Congress to give up on the Sunshine Act.")[Photo & Caption]
?(? William Ketter, Quincy, Mass.,) [Caption]
?(Patriot News editor, and president of the American Society of Newspaper Editors) [Caption]