The public trust is hard to gain but easy to lose. Take the case of former Secretary of State Hillary Clinton. Near-daily revelations about Clinton's use of her personal email account and secret email server while conducting government business have dogged the Democratic front-runner's presidential campaign. Her alleged evasion of federal transparency laws continues to dominate the news—including 11 hours of questioning last week at a congressional hearing—often squeezing out the policy positions on which she'd prefer to have the electorate focus.
The candidate insists that she now has turned over all emails that should have been part of the public record, that her intentions were innocent and that no harm was done. But how she wielded power remains an open and troubling question.
The public is left to take Clinton's word on faith, and she's not alone. Other officials at every level of government systematically avoid public disclosure by using their official email accounts for routine business and anodyne communication while relying on in-person meetings, cellphone calls and private email accounts for more sensitive discussions. They know what they don't want archived and they know how to dodge their duty to be transparent.
Late in September, the Chicago Tribune filed suit against Mayor Rahm Emanuel after City Hall refused to turn over communications sent to or from the mayor's private email and telephone accounts relating to Chicago's scandal-ridden red-light camera deal, claiming that messages sent from private devices aren't subject to the state's Freedom of Information Act.
SPIRIT OF THE LAW
Some lawyers argue that the Tribune should win its case. They cite a 2013 appellate court decision holding that electronic communications about public matters, including text messages sent and received by downstate Champaign's city council members and mayor over private devices during a city council meeting, were, in fact, subject to FOIA.
The court agreed with an earlier opinion issued by Attorney General Lisa Madigan's office: It's not the device that matters but the person using the device and the content of the communication. Other lawyers contend that when a public official using a private device isn't acting as a “public body,” his or her communications aren't public records subject to FOIA.
While lawyers split hairs, the public trust is compromised. Public records should be made readily available to all of us so we can responsibly discuss public issues, make informed political judgments and monitor government to ensure that it's being conducted in the public interest.
Let's urge our government officials not to hide behind their personal devices to skirt FOIA's letter or its spirit.
The world's first social impact bond, or SIB, was introduced in 2010 to fund innovative social programs that realistically might reduce recidivism by ex-offenders in Peterborough, England, and, with it, the public costs of housing and feeding repeat offenders. Prudently building on the strengths of that initiative, Illinois Gov. Pat Quinn is rolling out SIBs to help solve some of the state's most vexing social problems.
A SIB isn't a traditional bond where investors are guaranteed a fixed return but a contract among a government agency that agrees to pay for improved social outcomes, a private financing intermediary and private investors. SIBs shift the risk of experimenting with promising but untested intervention strategies from government to private capital markets, with public funds expended only after targeted social benefits have been achieved.
Peterborough's problem was daunting: Sixty percent of prisoners serving short-term sentences historically had gone on to re-offend within a year after their release. But policymakers were confident that a solution was within their reach. They attracted private investment to pay experienced social service agencies to provide intensive, multidisciplinary support to short-term prisoners, preparing them to re-enter society and succeed outside the penal system.
The government decided which goals would be supported, but exactly how those goals would be achieved was left to the private sector. It was the investors, through a bond-issuing organization, who ultimately endorsed the allocation of investment proceeds — how much would be invested in job training, drug rehabilitation and other interventions.
If the Peterborough plan eventually shrinks recidivism rates by 7.5 percent or more, the government will repay the investors' capital and share the taxpayers' savings with them, delivering up to a 13 percent return. If the target isn't hit, the investment will have failed and the government will owe the investors nothing.
Illinois' SIB effort was spearheaded by the state's Task Force on Social Innovation, Entrepreneurship and Enterprise — the governor's think tank on social issues, which I am privileged to chair — with support from Harvard University's John F. Kennedy School of Government, the Rockefeller Foundation and the Aurora-based Dunham Fund. A request for information issued by the Office of Management and Budget on May 13 yielded responses from service providers eager not only to reduce recidivism here but also to create jobs, revitalize communities, improve public health outcomes, curb youth violence, cut high school dropout rates and alleviate poverty.
Now the governor has issued a request for proposals intended to spur better outcomes for Illinois' most at-risk youth — by increasing placement stability and reducing re-arrests for youth in the state's Department of Children and Family Services, and by improving educational achievement and living-wage employment opportunities justice-involved youth most likely to re-offend upon returning to their communities.
Kudos to Mr. Quinn for bringing SIBs to Illinois. May they soon start delivering on their promise.- See more at: http://www.chicagobusiness.com/article/20131007/OPINION/131009850/a-new-kind-of-futures-contract-for-illinois#sthash.ThgxeiFt.dpuf
Marc J. Lane is a Chicago-based business and tax attorney and financial adviser.
Reprinted from Marc Lane's October 27, 2015 editorial which appeared in Crain's Chicago Business. Crain Communication Inc.'s permission is gratefully acknowledged. Copyright © 2015 by Crain’s Communications Inc.
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