If Gardner City Councillors Want Public Records, They Have to Pay For Them.

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If Gardner City Councillors Want Public Records, They Have to Pay For Them.

It’s not exactly economic growth – but it is revenue.

If a City Councillor wants to obtain City public records, and if the Mayor feels like approving the request, the City Councillor will have to pay their own money to get them.

Obviously, there is no legal authority that requires this – as government by the consent of the governed cannot work that way.  

Recently, as your City Councillor, I made a simple request to the City Solicitor (John Flick) for public records of communications between him and Mark Hawke regarding the condition of the City’s drinking water that allegedly, for years and years, corroded the heating coils of Citizens’ heating systems.

Recently, as your City Councillor, I also made a simple request to Trevor Beauregard, the City’s long-standing economic development czar, for public records to do with the City Solicitor’s private business, Flick Law Group, P.C.’s, involvement in past City-related real estate transactions while Flick was simultaneously serving as the City Solicitor.  

For the simple request to Beauregard, the ransom I was charged for the release of the hostages (the public records) is $200.  As for Flick, he didn’t get a disinterested party to respond on his behalf – instead he said he would give me a bill for the records, but never did – he also released zero hostages to me.

These are only two matters, of countless many, that the Citizenry expects and demands the City Councillor to know about, and to take action on (if necessary).  

It’s my duty, my oath to do these things – and no one can do them for me. But now others can prevent me from carrying them out.  That is not in the best interests of the Citizens.

Thomas Jefferson announced the basic principle of public service: “When a man assumes a public trust, he should consider himself as public property.”

This should be secular gospel for anyone holding a seat as City Councillor.  It’s foundational, root-bearing.  It’s not pablum, it’s truth.

A syllogism illustrates what I am talking about: The Citizens own the City’s public property; A City Councillor is public property; I was elected by the 21,000 Citizens, and am a City Councillor; Therefore, the Citizens own me.

In other words, I am the 21,000.

They put me here to have, and to hold onto, their City public records on their behalf – in order to educate myself accordingly so that I can deliberate meaningfully, and so I will cast informed votes, and so that I can tell the Citizens what it all means.

Yet, I’m told “no” by a Mayor who is my governmental equal – I can’t have the records, he says.

If nothing else, this democratically-impoverished situation is rich in irony, for sure.  

The admitted part-timer Flick, and the allegedly full-timer Beauregard, unelected Mayoral appointees, each get about $90,000 per year from the Taxpayers as City employees (and each position is entitled to full City benefits).  They can get any City public record they want for free.  Better than that, they get to say “no” to any elected City Councillor requesting public records the Councillor needs to do his/her job.

Meanwhile, the indisputably full-time (24/7/365) elected City Councillors get about $7,000 annually (and not entitled to City benefits if he/she is elected after 2010).  They have to pay the City their own money to get the public records they need to do their job – if the unelected partisan appointee says they can have them at all.

How insane would this conversation be if I were making this up?

Insanity and irony are kissing cousins. You all thought it was just normal that an elected City Councillor gets to have any City public record he or she wants. 

Wrong.

You all believe that it is not too much to ask that the City Councillor’s $7,000 yearly salary include a recognition of their right to public records needed to perform their duties to the Citizenry, and without having to pay the City their own money to get them.

But the Mayor thinks that is too much to ask – and that attitude is now the City policy being wielded by his City departments.

Back to the irony. The City Councillor owes the Citizenry a duty that the unelected partisan appointee does not owe them – the duty of accountability.  So, the elected City Councillor is only a City Councillor for as long as the Citizenry permits it at the voting booths. 

Unlike the City Councillor, the unelected partisan appointees, who have access to all the records they want (and for free), can stay as ignorant as is tolerated by the Mayor – they stay entirely unaccountable to the Citizenry.  You, the Citizen, have no say about it.  

At the same time, the unaccountable and unelected partisan appointee will get the City Councillor fired by the Citizenry at the voting booths by denying him/her the records needed to do his/her job as City Councillor – which makes it look to the Citizenry as if the City Councillor just didn’t look into some critical issue, and dropped the ball.

In this process, the unaccountable appointee responsible for the Councillor losing his/her position floats seamlessly into yet another decade of his Taxpayer-funded paychecks with unabashed unaccountability to the Citizenry – while a hard-working, valuable, honest, loyal and accountable representative of the Citizenry is now a former City Councillor.

The Citizenry is thereby used like a pawn, or a cheap suit, as they say.

But irony requires normal subjectivity and pathos – and, therefore, is lost on the dogmatist.  So, we should also give it to them squarely: There are two co-equal branches of City government.  The Mayor presides over the Executive Branch, and the City Council presides over the Legislative Branch.  

The Mayor does not own City records, and neither does the City Council – you do.  

So, even if there were some childish possession argument regarding public records, the City Councillor has a claim to them equal to that of the Mayor.

But, as ridiculous as such an argument is – possession is 9/10 of the law.  The Mayor has possession/control of 9/10 of the City’s records (or maybe 99/100). 

Thus, it seems as if this has literally turned into schoolyard possessory logic: “it’s my ball, so I make the rules.”

So, this might help get us back in from recess: The truth is that the Councillor’s choice to have City records is the Councillor’s constitutional right – which makes it also the Citizenry’s right by association (another First Amendment right).  

The right is found within the penumbra of the First Amendment freedoms of speech and of association.  If you’re interested, read Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 753 (1972), and Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972), and many, many other U.S. Supreme Court cases.

Therefore, squarely then, there is no law, regulation, Charter provision, ordinance, etc. that requires or authorizes the City to deny elected City Councillors City public records – nor are there any that requires the City to deny Councillors their right and duty to have City public records unless they pay for them.

So, why is the City doing it?

Because some public servants don’t know the difference between whether they can do something, and whether they should.

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