Finley: Judge's gag order is gagging democracy

Nolan Finley
The Detroit News

In the same federal courthouse where Judge Damon Keith, noted for the quote "Democracies die behind closed doors," still keeps an office, another federal judge this week short-shrifted the democratic process in a backroom deal-making session aimed at forcing a bad water deal on suburban customers.

Judge Sean Cox called Detroit Mayor Mike Duggan and Oakland County Executive L. Brooks Patterson into the closed-door meeting to convince Patterson the new regional water authority would have to absorb $25.6 million in unpaid water bills racked up by customers in Highland Park. And then the participants came out of Cox's chambers and said it wasn't about Highland Park.

"Of course it was about Highland Park," says Macomb County Executive Mark Hackel, who is furious he was shut out of the meeting. "That's the sticking point. Why not tell the truth? It was all about Highland Park."

The topic of the exclusive huddle is less important than that it was held in the first place. Cox has maintained a gag order on negotiations to finalize the regional water authority agreement, even though a governing board was appointed to publicly conclude its formation after a memorandum of understanding was signed a year ago by Duggan, Patterson, Hackel and Wayne County Executive Warren Evans.

Hackel is dead right that once that public board was in place, the private backroom dealing should have stopped and the gag order lifted.

"It creates a level of secrecy," Hackel says. "People are using it as cover to say they can't talk about decisions they should be accountable for."

Hackel makes no secret of his disdain for the agreement as it stands now, contending it is designed to transfer $50 million a year from suburban customers to the city of Detroit to make it's bankruptcy settlement work.

"It's not about creating an effective water system," he says. "It's about how they force this issue through bankruptcy and get what they need for the city of Detroit. I get it. But let's say so. Let's talk about it."

The appointed board is charged with settling the details of the agreement, and like every other public body, should do so in the open, and without court-imposed limits on what it can discuss.

"The tension that exists between doing business that way and the spirit of the Open Meetings Act is pretty obvious," says Len Niehoff, a professor with the University of Michigan Law School who specializes in the media.

Niehoff says Cox is within his authority to maintain the gag order, but says judges should take care such orders don't get in the way of the democratic process.

"These officials have a political role and it is important for them to have the latitude to fulfill their responsibility," he says. "If the gag order interferes with access to information about how public officials are doing their jobs, it raises legitimate First Amendment concerns."

That's exactly what Hackel contends it's doing. He wants to be able to discuss the details of the water authority deal with his constituents, the local communities in Macomb and the county commission. Ultimately, the commission will be asked to vote on the agreement.

"What is it we're trying to hide by having a gag order," asks Hackel, who argues many of the initial protections for suburban ratepayers have disappeared from the agreement. "Too much debate? Too many people causing problems? Really? If that's a reason, then everything in government should be done under a gag order."

The Macomb executive says the way the water authority is being handled is a sharp departure from regional collaborations, including the Cobo Center authority.

"The court is driving everything," he says. "Regional leaders didn't come together to decide the timetable, terms or conditions."

Hackel now is proposing that once the final agreement gets hammered out, a seven day review period is allowed for the public and elected officials to review and comment on the pact.

"If they think they've got a good deal, they should be proud of it," Hackel says. "Let the public see what they've done before it's finalized. I don't want to be part of secret meetings anymore."

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