If you care about ethics in government, honest elections, or the right to know what your government is doing, then the mess at the Office of Governmental Accountability should be cause for alarm. At best, they’re wrestling with an octopus. At worst, the essential independence of our state watchdog agencies will be crippled. It’s nearly laughable if it weren’t such a shame.
The governor and the legislature created this superagency in 2011 in the name of efficiency. The nine agencies include the State Elections Enforcement Commission, the Office of State Ethics, and the Freedom of Information Commission.
Gov. Dan Malloy chose David Guay to be the “executive administrator,” of the superagency. Mr. Guay, who prefers to be the boss rather than merely the administrator, is refusing to meet with the directors of the nine agencies that comprise the Government Accountability Commission, which has the power to fire him. He maintains the commission doesn’t have the power to evaluate his performance, and the governor’s chief counsel appears to back him up on that.
But rather than fire him at this time, the commission prefers to “identify areas that need improvement and resolve them.” He is commended in some areas for his work in the first year of this cobbled-together agency, but he is evaluated critically in key areas of management.
“It is of grave concern to the GAC that (Guay) is unwilling to meet to discuss the status of the consolidation or to collaborate on ways to make it a success as he enters his second year of employment,” states a draft of his evaluation.
What we have here is a failure to communicate.
In the merger of the watchdog agencies, staff cuts at the FOIC have led to piled up cases and delays in getting hearings or taking appeals to the state courts. The people’s right to know is slowing to a crawl.
A year ago Mr. Guay, who makes $118,000 a year, tried to change the rules and proposed that he report directly to the governor, rather than to the Government Accountability Commission. “Giving the GAC the authority to evaluate and possibly terminate a governor’s appointee appears to be inconsistent with the appointment of other gubernatorial appointees,” he said at the time.
He also said to the commission that, “I’ll report to whoever I need to report to. I don’t fear an evaluation. In fact I welcome the evaluation. I think I will ace my evaluation, I will exceed their expectations.”
But now he refuses to even listen to his evaluation and has twice declined to attend a commission meeting where his evaluation was on the agenda. In fact, according to the draft of his evaluation, he doesn’t even like talking to the agency directors: “Regular communications by [Guay] with the division heads have not been established. It is unusual for him to visit any of the division offices or to meet with the division heads one-on-one. This failure on the part of [Guay] to engage in two-way communication regularly is a primary concern.”
The ethics, elections and FOI agencies were created independent for a reason. If you are controlled by the chief executive of the state, how can you hold him or her accountable? Mr. Guay doesn’t seem to grasp that his selfish efforts to try to report directly to the governor puts the OGA agencies under the governor’s thumb, no matter who is governor. It’s the proverbial fox in the henhouse.
Malloy’s chief legal counsel Andrew McDonald told The Hartford Courant that Guay’s interpretation of the law that created his job “seems to be a very plausible reading of the statute in its simplest terms. The statute … constrains the commission’s activities to two very discrete purposes” — holding meetings to either recommend job candidates for administrator, or to fire that administrator.
If the GAC wants to “undertake activities that are not included in the statute,” they might get “an opinion from the attorney general that allows them to,” McDonald suggested.
However, the state attorney general’s office has issued opinions backing what is generally called the “greater power/lesser power” rule—the express grant of power includes implied powers that are necessary or essential to exercise the express power—“a bit of common sense that has been recognized in virtually every legal code from time memorial,” according to the U.S. First Circuit Court of Appeals.
It is utter nonsense when Mr. Guay says the GAC must fire him, if it so desires, without any due process accorded to him. He must come to his senses and do the job he was hired to do. He must stop trying to undermine the independence of the agencies he is charged with serving. If he persists, let him return to the state Board of Accountancy where worked as director for 22 years.
James H. Smith, a retired newspaper editor, is the President of the nonprofit Connecticut Council on Freedom of Information.