Heath Haussamen
I’m glad Sen. Eric Griego and AFSCME have brought contractor disclosure into the debate about government transparency. But the proposal they convinced the Senate to approve – an overly broad amendment to the Sunshine Portal – is simply not appropriate.
I’m a big fan of transparency, and I believe private contractors who do public work could use more sunshine. But the N.M. Senate toyed with absurdity on Monday by approving an amendment to the Sunshine Portal law that would require all state contractors to disclose the names, titles and salaries of all employees.
One example of a company the legislation would affect is a business that runs a prison for the state. I absolutely believe the names and salaries of the company’s employees who work at that prison should be publicly disclosed.
But on the other extreme is a company that does 99 percent of its work in the private sector and has one tiny contract with a state agency for a couple thousand dollars. I don’t believe such a company should have to give out that much proprietary information.
Somewhere in between is a gray area in which a line should be drawn between what’s public and what’s not. I’m glad lawmakers including Eric Griego, D-Albuquerque, have brought this issue into the debate about government transparency.
But the way they’ve done it – with an overly broad amendment to the Sunshine Portal – is simply not appropriate.
Employees’ union came up with proposal
Griego made the proposal Monday during debate about whether to require that all state employees’ names be included in the Sunshine Portal, which is the original intent of Senate Bill 30, sponsored by Sander Rue, R-Albuquerque. With the exception of protecting the names of employees who are victims of violence or stalking, I’ve been baffled about why including state employee names in the online database is so controversial. Government employees’ names, titles and salaries are already public information you or I can obtain with a records request.
Perhaps outsourcing is a concern. I know some on the left are worried that the right will use newly accessible public salaries to crucify employees and push for more contract work and fewer government jobs.
The idea to make contractors release information about their employees came from the union representing state employees. From the American Federation of State, County and Municipal Employees’ website:
“As Governor Martinez tried to push to include even the lowest wage and classified employees’ names on the Sunshine Portal, our Josh Anderson came up with a brilliant idea: if our members’ names and salaries have to be out there for everyone to see, then so should the names and salaries of private contractors who are paid for by tax dollars.”
That became Griego’s proposed amendment. With every Republican and five Democrats in opposition, the Senate voted on Wednesday to accept the amendment. Then the Senate approved the bill on a vote of 25-16, with all Republicans but Rue in opposition. You can watch the lengthy debate here, thanks to the governor’s webcasting and archiving.
The bill now moves on to the House.
Not an apples-to-apples comparison
AFSCME may present disclosure of information about public and contractor employees as such, but this is not an apples-to-apples comparison. State law currently makes information about the point of payment public. A state employee is paid by the state, so his or her information is public record. A contractor’s employees aren’t directly paid by government agencies. In some instances, money from a government contract may not contribute to employee salaries at all.
A company with a state contract is paid for the work it does, so what’s currently public in that instance is the actual contract, bidding documents that show why the company was selected if a bid was required, amounts of payments made to the company, and information about the company that includes its corporate officers.
As I said earlier, in some instances in which a private contractor has so much authority that it acts like a state agency, it should be treated as one, and information about employees should be public.
The N.M. Foundation for Open Government is already arguing before the Court of Appeals that, in the case of a privately-owned public access channel in Truth or Consequences, records the contractor holds for the local government agency are public records.
It’s not clear that FOG’s argument will prevail but, as is the case with a company managing a prison for the state, you could argue that a company that manages a public-access channel for a local government agency should have to open its books as they relate to the work the company is doing for that agency.
Not the proper venue for the debate
Nationally, we’ve seen a spike in government work being done by contractors in recent years, and many want to continue the trend of government outsourcing work and employing fewer people. That’s one reason it’s important to have this discussion about increasing disclosure requirements for contractors.
But the Sunshine Portal isn’t the proper venue for this debate. The portal isn’t designed to set policy on what is public record and what’s not. It’s simply intended to increase accessibility to information state law already deems public.
I worry that a simple accessibility law will become a controversial act some will try to repeal every year if we start using it to change state policy on what’s public.
Instead, if Griego, AFSCME and others want to have a serious discussion about contractor disclosure, how about a new act – maybe the Contractor Transparency Act – that sets state policy on that issue?
AFSCME is already working with others to scale back this proposal to make it more reasonable. But proponents are still trying to get something approved this session as an amendment to the Sunshine Portal. I hope they shift gears.
Increasing access to contractor information now
There are easy changes to the Sunshine Portal law that could improve access to contract information that’s already public record. If you click here, you’ll find a searchable database of all state contracts that includes information about who has contracts, the purpose and dollar amount of contracts, and how much has been paid out thus far.
Missing from the Sunshine Portal are electronic copies of actual contracts, checks that have been written, bidding documents or other records that led to the awarding of the contract, and reports on the progress of the work the contractor is doing. Also missing is information about corporate officers, though that is online at the PRC’s website.
All of that should be added to the Sunshine Portal. Griego and AFSCME could push an amendment to require it. That can be done during the current session with a quick change to the law.
But a change in the state’s policy on what information it collects from contractors is a more substantive proposal that needs serious consideration. I don’t know if that means new legislation in this session (which could be done with the procedural move of replacing a dummy bill), or consideration of legislation during the interim to bring forward next year. But I know the Sunshine Portal isn’t the proper venue for such a shift in policy.
Let’s do this right
Let’s have the discussion about increasing contractor disclosure. But let’s do it right. In the meantime, lawmakers should improve the Sunshine Portal immediately by requiring that it include state contracts and related documents, and the names of all state employees except those with valid safety concerns.
This is information that’s already public, so making it more accessible shouldn’t be controversial. The public should have easy access to it.