First Amendment is not a suggestion'
We think every newspaper in America should reflect
on, and perhaps publish, the remarks that Mark Swanger, chairman
of the Haywood County, North Carolina, Board of Commissioners, made
July 22, 2005, upon receiving the 18th William C. Lassiter First
Amendment Award from the North
Carolina Press Association. The story of Swanger, is
a road map to open government for other public officials, and for
the journalists who cover them.
Swanger, who returned to western North Carolina after
a career in the FBI, was elected three years ago "during a
climate of general public discontent over what was perceived as
a secretive board that made a concerted effort to block the public
out of the decision-making process," the NCPA convention program
said. He told the convention that he got three of the other four
commissioners to support his open government measures because "The
process became a campaign issue." That is a lesson for
journalists. If you ask candidates at election time where they stand
on freedom-of-information issues, you are likely to get responses
that will help you win FOI battles when those candidates take office.
The NCPA gives the
award to a non-member who has devoted time and effort in defense
of freedom of the press, the promotion of open government and the
public’s right to know. Swanger was nominated by Becky Johnson
of the Smoky Mountain News, who told the convention
that before him, "The public never seemed to know what the
commissioners were up to." Now, she said, Haywood County has
"one of the most open county governments in the state."
It videotapes and broadcasts commission meetings, puts those tapes
in libraries, gives journalists the same background information
commissioners get, at the same time; makes adherence to FOI laws
part of the county manager's duties; and takes minutes of closed
sessions, and makes them available to the public when the reason
for the closed session no longer exists.
In the FBI, Swanger's focus was public corruption,
and he told the convention that he found such corruption “could
not succeed unless the press and the people were deceived."
He said a "culture of secrecy" is more likely in small
jurisdictions, where "people are afraid to be honest"
and more likely to take cues from lawyers. Following is the text
of his remarks to the convention.
Remarks prepared for delivery by Mark S.
Swanger, Chairman, Haywood County Board of Commissioners, upon receiving
the William C. Lassiter First Amendment Award from the North Carolina
Press Association, Asheville, July 22, 2005
Good morning. I am honored to receive this recognition from such
a prestigious and respected organization. I would also like to recognize
and thank Becky Johnson of the Smoky Mountain News for nominating
me for this award.
I would like to take just a few minutes to discuss my background
and a few thoughts and opinions on open government. I will leave
a few minutes for any questions you may have. 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. It was the era of Watergate.
Yes, I met Mark Felt on several occasions, and no, I did not know
he was “Deep Throat.” I was a support employee at the
time and delivered mail to his office.
In 1975 I was appointed a special agent with the FBI. I conducted
investigations involving foreign counter intelligence 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, 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.”
In the mid-1980’s I was promoted to FBI headquarters as
nation 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 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.
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.
Open and transparent government is not just good public policy;
it can also be good politics. 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.
A possible problem area in North Carolina is closed session meetings.
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.
What other steps can be taken to institutionalize transparent
government? The Haywood County School Board in 1996 and the Haywood
County Commissioners in 2003 adopted certain procedures that take
us in that direction. I urged adoption of these procedures because
I believed that 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
Examples of procedural changes include:
• The prohibition of last minute additions to the agenda –
the public and media know what will be discussed. No last minute
switch of agenda topics to avoid controversy or media scrutiny is
• 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 following the public hearing so that
public input can be weighted and researched, if necessary.
• All support/background information furnished to board members
is available for public and media inspection at the same time it
is provided to board members.
• Closed session topics are reflected on the agenda.
• The public has the right to address the board before each
• The media may question the board following each meeting
and in the public comment period before the meeting.
• 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
In closing, I commend each of you, and your organizations for doing
your part to protect our right to know, for helping keep government
open and honest, and for creating a climate conducive to institutionalized