This OP-ED is from Assembly-member Michael P. Kearns of the 145th District in New York State whose office this site communicates on issues. The same law proposal is needed in Masschusetts.
The general state of the law leaves one wondering, "Will there always be a battle between secrets and darkness against openness and light?" When the infection of secrecy spreads limiting accountability and transparency, Supreme Court Justice Louis Brandeis once famously wrote that, “Sunlight is said to be the best of disinfectants.” Today the broader community in New York State is in need of a liberal dose of legal disinfectant or sunshine legislation.
Sunshine or disclosure legislation occurred as a response to numerous cases which involved stipulated settlements requiring silence or gag orders as a condition of the agreed upon pay out. Secrecy and gag orders harmfully impacting the broader public has a long history in the private sector, the health care sector, the clergy, college sports and now possibly in the public sector.
The history of secrecy agreements involving significant public harm included: 1) the prescription drugs Zomax and Halcion, the Shiley heart valve, and the Dalkon Shield intrauterine device, all taken off the market as too dangerous, but not until after many years and hundreds of secret settlements; 2) the Bridgestone/Firestone tire defect litigation ultimately resulting in the recall of fourteen million potentially dangerous tires and linked to the deaths of over 250 people in the United States, with scores of cases settled secretly; 3) the number of clergy sexual abuse claims, Catholic Church in Chicago archdiocese, after an investigation by Chicago Lawyer, was discovered to have an estimated 400 lawsuits that the Catholic Church had settled in the previous decade-almost all of them secretly; 4) high dollar Wall Street securities scandals, 5) scandals at special needs health care facilities, where a home administrator sexually abused a Down's Syndrome resident, the case settled and the administrator later admitted to sexually abusing over a dozen others and 6) finally, more recently, while it did not deal with secret settlements, the Joe Paterno, Jerry Sandusky- Penn State child rape and molestation cases, were allowed to flourish in a culture cloaked in secrecy and perhaps conspiracy.
The infection of secrecy and the consequent harm to the public may have spread to the public sector. The legislative or executive branches of government are principally charged with disseminating information for public consumption, formulating major social policy, or protecting public health or safety or property. The recent revelations in the New York State Assembly regarding Assembly-member Vito Lopez's alleged staff member molestations and the subsequent settlements outside the scrutiny of the New York State Assembly, underscore the need for sunshine legislation to prevent the potential for further future abuses and harm to the public in all sectors of society.
The State of New York needs a presumption of openness concerning court documents and settlement agreements, closely following the example set by the state of Texas in passing and signing its law into effect in 1990. New York State needs a law that will directly address and prohibit settlements by public bodies, public agencies and public organizations. I am asking that the People of the State of New York support a bill I am filing next week, which prohibits secret settlements by public bodies with the use of public or private funds, but also creates a presumption of openness which can be overcome after the prongs of a multiple part test are met.
In the play Julius Caesar, William Shakespeare wrote, "Where wilt thou find a cavern dark enough, To mask thy monstrous visage? Seek none, conspiracy. Hide it in smiles and affability." While conspiracy has a specific legal meaning, secrecy does not in many instances and far too many have smiled at this problem for far too long with too much harm being visited upon innocent parties. I hope that my colleagues and their constituents agree and support me in an effort to have this bill signed into a law in New York State.
Michael P. Kearns, Assemblyman 145th District