IT WOULD be nice if the commission in charge of overseeing public defenders in state courts would show a little more respect for state law, maybe a lot more. To wit, Arkansas Code Annotated 25-19-106, which declares that any motion considered in executive session by that commission, or any other for that matter, won’t be legal unless and until the vote on it is taken in public. It’s a good rule. And a useful protection for the public’s right to know.
Great thing, the Arkansas Freedom of Information Act, and still mighty useful even all these years after its passage. (Thank you, Winthrop Rockefeller.)
But this week the chairman of the state’s Public Defender Commission-Jerry Larkowski-took it upon himself to conduct a vote of the members by email when it came to their accepting the resignation of the commission’s long-time executive director, Didi Sallings. Not to worry. “Had we taken a vote at the last meeting,” he explained when the problem was pointed out, “nothing different would have happened.” Yeah, what’s the diff? Why let a little thing like black-letter law get in the way when it’s inconvenient?
We’d like to think most folks, and most public officials, take the law more seriously than did Chairman Larkowski on this occasion, but sometimes we’re not so sure. His attitude may be more widespread than is healthy for a government of laws, not men.
When, oh, when will this commission-and other state agencies, too-learn the wisdom of building a fence around the law, that is, of going the extra mile to make sure they don’t even risk treading on the law?
At least the press did its duty this time. Eight minutes after a reporter for the Democrat-Gazette began to ask what was up with the commission, its chairman was urging his fellow commissioners to get busy and vote on Didi Sallings’ resignation by email.
“The press have been calling,” he emailed his colleagues. “They must smell something on the horizon. I encourage us to act in a manner that is careful but also answers the questions I am sure they are about to ask.” If only the chairman and his fellow commissioners had been careful enough to avoid any doubts about the legality of their decision.
Yes, it must be quite a nuisance for the chairman of a state commission to have pesky reporters always sniffing around. And raising questions about matters he may consider no big deal at all, such as what the law says. “Dere’s always a technicality about everyt’ing,” as Chicago’s Mayor Daley-the first one-used to complain in one of his many moments of exasperation with an uppity press.
But in this mass democracy that America has become, it is the press, now known as The Media, that must sound the alarm, point the finger, raise questions, badger folks in authority . . . all of which, we confess, may not be the most dignified of postures. Sometimes the alarm may be false. Having a watchdog around all the time can be an awful nuisance; the mutt may spend half the night barking up a dead tree or baying at the moon, keeping everybody awake and irritated. But surely all can be forgiven, if only briefly, when the little rascal turns out to have a point, even if it’s “only” a technical one. Or, on historic occasion, it even nabs a Richard Nixon climbing out the window with something far more valuable than the family silver. Let it be noted that passive acceptance is not the most valuable trait in a watchdog.
IT MAY have been said best, as usual, by Learned Hand. “My thesis is that any . . . society which depresses free and spontaneous meddling is on the decline . . . .” he once posited. “I maintain that in any such society Liberty is gone, little as its members may know it . . .” And the rule of law is chipped away step by thoughtless step. One gauge of how well the press is playing its role as a watchdog is how irritated it manages to make those in public office.
Surely it’s not too much to expect a commission that plays so important a role in securing the rights of defendants before the courts, and carrying out the law, to show more respect for the law itself. Even without the press needing to point out the error of its ways.
To point out the obvious, an email is not the public meeting the law would seem to require in this case. That simple distinction finally dawned even on Chairman Larkowski, who decided that the commission would “probably” take a public vote to conform to the letter of the law: “To dot the i’s and cross the t’s, and since we’re meeting again in the next few weeks, we will probably take a public vote to ratify the vote we took by email.”
There shouldn’t be any “probably” to it. The law is the law and deserves more respect. We’ve watched public officials reverse a mistaken course before, but seldom with such ill grace.
Listening to Jerry Larkowski’s defense/explanation/excuse for his decision to call an email vote in the face of what the law would seem to clearly say, and then having to watch him change course while still trying to minimize his poor judgment, has been painful. But it does help the observer understand the burden that Didi Sallings carried for her 20 years as the commission’s director, and why it might have plumb worn her out.
Editorial, Pages 16 on 07/26/2013