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
