The chairman of the Commodity Futures Trading Commission yesterday warned his fellow government officials that unless they make sure the spirit of the new "Sunshine" law is complied with, "loopholes" will allow its evasion.
The "Government in the Sunshine Act," which goes into effect on March 12, requires all federal bodies directed by two or more presidentially appointed members to conduct their business at meetings open to the public. Each agency is required to adopt regulations outlining the ways in which it intends to implement the law, a process which already has begun.
In letters to the 45 multi-member agencies and commissions subject to the provisions of the "sunshine" law, CFTC Chairman William T. Bagley suggested that they not only implement the provisions fully as required by law, but also "actively search for and adopt methods of positive implementation.
"The idea, simply put, is to anticipate and then avoid the attempts to evade that will be forthcoming," he told them.
"By closing loopholes in advance, we will not only protect the public's right to know but will also avoid the expensive over a long period of time," Bagely said yesterday.
Drawing from his experience as a legislator in California - when he sponsored three major pieces of legislation designed to open the state governmental processess to public scrutiny - Bagley warned that without the right attitude in the agencies and without strict public and press vigilance, the "open government atmosphere" intended under the law may be illusory.
"I fully expect every superficial evasive device - tried and eventually tripped-up in California over the last 24 years - to be invoked by a Washington cadre mind-set on secrecy," Bagley predicted.
Along with his letter, Bagley sent the federal officials a report he had prepared on the evolution of California's open-meeting laws, laws met at first by "quite numerous" evasive devices, he said. Among them:
How a meeting is defined. Bagley said some sessions were said by those not wanting openness not to be meetings because they were "only informational" or because " no action was taken." A meeting should be defined as "any gathering of a quorum of the agency members at which business is discussed, whether formal or informal and whether or not action is taken."
What subject is discussed. Those wanting to keep things secret suggest that the subject was "quasi-judicial" or involved potential litigation or "legal advice," and discussions of general operating and budgetary matters are held under the guise of "personnel" matters.
How and when the public is notified Public notice is distributed inadequately, public requests for notice are not honored, and meetings are held at inconvenient times and places. Agenda items are listed in such a way as to shroud or obscure, rather than explain, what will be taken up.
"Agency regulations can and should be adopted under the Sunshine Act to avoid use of any of those obfuscating and deceptive devices," Bagley said in his letter, noting that the evolution in California from "an attitude of attempted evasion to one of willing openness" took 24 years.
"My proposal is to attempt to achieve this evolution much more quickly within the federal structture by adopting, through our agency requlations, procedural protections which will obviate in advance the various evasive devices which I know . . . will be proposed by some federal bureaucrats as they seek to find ways to keep doors closed to the public rather than open them," Bagley wrote.