By Michael P. Kearns
When the infection of secrecy spreads, limiting accountability and transparency, Supreme Court Justice Louis Brandeis once famously wrote that, “Sunlight is said to be the best of disinfectants.” Today the broader community in New York State is in need of a liberal dose of legal disinfectant.
Secrecy and gag orders harmfully impacting the public have a long history in the private sector, the health care sector, the clergy, college sports and now possibly in the public sector.
The history of secrecy agreements involving significant public harm include:
• The prescription drugs Zomax and Halcion, the Shiley heart valve and the Dalkon Shield intrauterine device. All of these products were taken off the market, but not until after many years and hundreds of secret settlements.
• The Bridgestone/Firestone tire defect litigation. This resulted in the recall of 14 million potentially dangerous tires and was linked to the deaths of more than 250 people in the United States, with scores of cases settled secretly.
• The number of clergy sexual abuse claims. The Catholic Church in the Chicago Archdiocese was discovered to have an estimated 400 lawsuits that the Catholic Church had settled in the previous decade, almost all of them secretly.
• More recently, while it did not deal with secret settlements, the Jerry Sandusky-Penn State child rape and molestation were allowed to flourish in a culture cloaked in secrecy and perhaps conspiracy.
• Finally, the Boy Scouts of America only recently has revealed that numerous children were abused over decades.
The infection of secrecy and the consequent harm to the public may have spread to the public sector. The recent revelations in the New York State Assembly regarding Assemblyman Vito Lopez’s alleged staff member molestations and the subsequent settlements outside the scrutiny of the Assembly underscore the need for sunshine legislation.
The state of New York needs a presumption of openness concerning court documents and settlement agreements, closely following the example set by the state of Texas. New York needs a law that will directly address and prohibit settlements by public bodies, public agencies and public organizations. I am asking that the people of New York support legislation I have submitted to prohibit secret settlements by public bodies with the use of public or private funds, but also creates a presumption of openness that can be overcome after the prongs of a multiple-part test are met.
While conspiracy has a specific legal meaning, secrecy does not in many instances, and far too many have smiled at this problem for far too long allowing harm to innocent parties. I hope that my colleagues and their constituents agree.
Michael P. Kearns represents the 145th District in the State Assembly.