Clever or Criminal?

At what point does a public official become too clever, and cross the line into criminality?

Many public officials pride themselves on being very clever, while feigning helplessness or ignorance. Such officials exhibit behavior which is often excused by other officials, although this same behavior, if exhibited by an ordinary citizen, would be considered sociopathic, grossly incompetent, negligent or conspiratorial.

We’ve decided to launch a new series here on Leech City regarding clever public officials. In this series, we’ll consider some sample behaviors observed in public officials, and compare these behaviors to state law, just for sport. As always, while I am not an attorney, and nothing that you read on this site is to be considered legal advice, Georgia law appears to be clear enough that anyone can read it for themselves and come to their own conclusions. Plus, everyone, even the most blatant scumbag, is entitled to a trial by jury.

Manassas is rich with examples which give one pause. In this first article, we’ll consider one example. We’ll loop around to many other examples in future articles. Where appropriate, we’ll refer these examples to various other officials and get their opinions on these issues.

For our first example, consider the city’s offer to let us look through a box of papers when we requested grant records and city account records. A fan of public corruption might simply chuckle at that, thinking it to be a very clever way to dodge giving out substantive detail while appearing to comply with the law.

However, let’s see what Georgia law says, and compare. Flip back to our earlier article on the Georgia Open Records Act (GORA). Let’s drill into just one piece of that legislation, O.C.G.A. §50-18-74. For convenience, we’ll copy paragraph (a) out of that (emphasis added):

(a) Any person or entity knowingly and willfully violating the provisions of this article by failing or refusing to provide access to records not subject to exemption from this article, by knowingly and willingly failing or refusing to provide access to such records within the time limits set forth in this article, or by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation. Alternatively, a civil penalty may be imposed by the court in any civil action brought pursuant to this article against any person who negligently violates the terms of this article in an amount not to exceed $1,000.00 for the first violation. A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed. It shall be a defense to any criminal action under this Code section that a person has acted in good faith in his or her actions. In addition, persons or entities that destroy records for the purpose of preventing their disclosure under this article may be subject to prosecution under Code Section 45-11-1.

Would piling a bunch of papers in a box and telling someone to have at it be considered making records difficult to obtain or review? I would think so, particularly if those records, such as city accounts, are so prominently obvious that they shouldn’t just be tossed in a box with lots of other things, with no accountability for what is actually contained in that box on any particular occasion. Maybe a jury would decide differently.

Note also that there is a defense if the official has acted in good faith. There’s where the cleverness comes in. Is it good faith to make one or two mistakes along the way? Any reasonable person would think so. But, is it good faith to have a pattern of obstructive, evasive, and deceptive behavior? I don’t think so. Maybe a jury would decide differently.

Speaking of good faith, remember that certified letter our attorney sent to the city which hadn’t been signed for in a week? Now, according to the postal service, it hasn’t been signed for at all after more than two weeks, and is scheduled to be returned to sender.

Does a city official’s failure to sign for a letter from an attorney, who is, after all, an officer of the court, constitute acting in good faith?

I don’t think so. Maybe a jury would decide differently.

Stay tuned to this exciting new series; we have many more thought provoking examples on the way.