Public Bodies Need More Public Discourse, Not Less

“The Freedom of Information Act is ridiculous.”

Yes, someone actually said that. Someone who works for a publicly funded institution. Someone who had the ear of a public body that performs public functions. A public body who, by the way, has the power to remove the president of one of the nation’s most prestigious universities without warning and without consensus.

But this someone (Jeffrey C. Walker, chair of UVA’s Council of Foundations) seems to believe that the debacle that was the ouster and reinstatement of President Teresa Sullivan was somehow brought about because FOIA prohibits more than two people to talk privately without triggering rules regarding notice and openness of a public meeting and the members of the BOV couldn’t talk freely among themselves in off the record.

To which George Cohen, chair of the Faculty Senate, said, “I’m not sure that the problem that we had this summer was the result of too little discussion behind closed doors.”

Amen, Brother George.

As if the whole thing would have gone over smoothly if three or more people got together to talk privately about the president’s removal instead of just two at a time. Without getting too far into the weeds of the particulars of what happened, people were outraged because the decision had been made and announced without any warning. I was outraged and I don’t have a dog in the UVA fight at all (proud Tar Heel grad, here). People who weren’t Sullivan’s cheerleaders were outraged, too. Bless Mr. Walker’s heart if he still thinks it was all about the substance of the decision and not about the process.

The process is important to people. The process -- FOIA, that is -- is set up to “to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government” (that’s FOIA’s policy statement talking, not me).

The process is set up to inform citizens not just about the decisions that are made in their behalves but also about the reasons behind the decisions.

Mr. Walker acknowledged that “decisions” should be made public; he just thinks the conversations about the decision should be private. Why? So board members can have frank and open discussions, and so they will have an environment where people will challenge each other and, according the the Daily Progress, so members can float dumb ideas or bluntly challenge one another without facing public wrath.

Hold on, I have to sit down because this takes my breath away.

You see, FOIA does contemplate giving members some leeway to have these kinds of frank discussions. As already noted, FOIA allows members to talk to each other one on one. FOIA allows members to exchange emails with one another, though those emails are public records. FOIA also has closed meeting exemptions. There’s a personnel exemption, and nothing -- NOTHING -- prevented the Board of Visitors from holding discussions about Sullivan’s performance in a closed session, where conversation could have been as frank and freewheeling as anyone ever desired.

FOIA also does not require the BOV or any other public body to hold meetings under a particular order of parliamentarian procedure. A board facilitator lamented the meeting’s formality, and apparently BOV member Alan Diamonstein wants to have his committee meetings separate from the full board meetings. And that’s OK. Committees can meet whenever they want. Full boards and their committees can amend their rules to allow them to meet in less formal settings -- workgroups, work sessions, whatever you want to call them -- where members can have a more natural discussion instead of hewing to rigid procedures on who has the floor and when.

There also seems to be a misconception that there is some bright line between discussions and decisions. Decisions do not materialize out of thin air. They are sewn as ideas, then nurtured, weeded, pruned and watered. At some point in this process, the idea bears fruit; the people doing the talking realize that they can agree on something and that is the decision. The voting in open session is essentially the ratification of what has already been decided. That’s good, but the public still wants to see that. And they should see that. It’s part of what makes a democracy a democracy.

And speaking of democracy, we elect people to serve as officials and on public boards. And sometimes the public officials appoint people to other boards and commissions. All of these people serve the public. All of these people must put aside their thinking about how they would do things in their own business, or at home, or at the non-profit group they participate in and realize that service to the public requires something different. It’s not easy. I get that. But where is it written that government is supposed to be easy, especially government in a representative democracy? 

And where, oh WHERE, did someone who serves on a public body get the notion that they can serve without incurring public wrath? Aside from someone who we can be pretty sure does not want to run for a statewide or nationwide office, who thinks that public service is about popularity, adoration or admiration?

As the ersatz version of the quote attributed to Abraham Lincoln reminds us, “You can’t please all of the people all of the time.” (His actual quote is that you can’t fool all of the people all of the time, which also may be apt.) As a member of a public body, you will say and do things that will rub some people the wrong way. You just will. You can’t control people’s reactions, you can’t control their opinions, and you can’t control the message.

If a member of a public body or the public body as a whole is facing public wrath, well perhaps that’s the time to sit back and wonder, “Did we do the right thing?” THAT’s what happened at UVA. The public’s reaction was so universally negative that it forced the board to reconsider. 

I’ve seen this idea that public bodies need more flexibility to meet out of the public’s view from several other sources. Some local public bodies have the same notion. And this takes my breath away even more because the very same people who spend weeks and months talking, talking, talking to the electorate so they can win their seat suddenly become shrinking violets when it comes to talking in public about the issues they were elected to address.

It’s the marketplace of ideas. And if we are going to be a country that prides itself in still being of, by and for the people (man, that Abe Lincoln was good), we have to be able to suffer the slings and arrows of participation in that marketplace.

The answer is for more public discourse, not less.