'The First Amendment is not a suggestion'

July 2005

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 scrutiny.
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 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 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 meeting.
• 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 office.

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 government transparency.

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