Cynical Versus Idealistic Views of
Laws in America
Recall the two quotes by John Adams (1735-1826) and Frank Zappa (1940-1993) about laws in America:
1)
“A government of laws, and not of men.” (Adams)
2)
“The United States is a nation of laws: badly
written and randomly enforced.” (Zappa)
I learned and believed early in my life that Adams’ view of laws in America represented the truth.
Regrettably, I have come to believe that Zappa’s more cynical view is much closer to the actual truth.
John Adams, America’s second president, helped to establish a nation. Frank Zappa, a rock musician with a background in classical music, helped to establish a satirical view of that nation. He possessed an incredibly quick mind as shown in the following exchange with an aggressive TV interviewer, Joe Pyne, a World War II veteran who had lost a leg in combat:
Pyne: "So I guess your long hair makes you a woman."
Zappa: "So I guess your wooden leg makes you a table!"
Frank Zappa’s sharp wit and provocative insights deserve more respect and attention than is normally granted to counter-culture satirists of Americans’ beliefs and lifestyle choices.
Badly-Written Laws
Zappa’s first assertion about “badly-written laws” comes as no surprise
to many Americans today since numerous loopholes have been discovered in many laws
as written. Merriam-Webster defines a “loophole” as “an error in the way a law,
rule, or contract is written that makes it possible for some people to legally
avoid obeying it.” Laws with loopholes obviously
qualify as “badly written” laws.
To see how common it is for bills passed by legislatures and signed into law by chief executives to contain loopholes, just Google the term “legal loopholes” and you will discover that such loopholes occur so frequently that multiple cottage industries within law firms have evolved to benefit certain taxpayers who have been inadvertently blessed by one particular loophole or another.
Skeptics have reason to believe that some of the loopholes found in laws were put their intentionally to favor a group of beneficiaries totally different from the ones the law is ostensibly intended to help!
Consider, for example, the Commonwealth of Pennsylvania SUNSHINE ACT, billed as “An act requiring public agencies to hold certain meetings and hearings open to the public,” which includes these words:
Section 708. Executive sessions
(a) Purpose. An agency may hold an executive session for one or more
of the following reasons:
(1) To discuss any matter involving the employment, appointment, termination
of employment, terms and conditions of employment, evaluation of
performance, promotion or disciplining of any specific prospective public
officer or employee or current public officer or employee employed or appointed
by the agency, or former public officer or employee, provided, however, that
the individual employees or appointees whose rights could be adversely affected
may request, in writing, that the matter or matters be discussed at an open
meeting. (Emphasis added.)
It is clear from Section 708 of the Sunshine Act that, if a State
agency plans to conduct an “executive session” (i.e., a meeting closed to the
public) to discuss employment matters, including termination of employment, the
individual employee whose rights could be adversely affected may request, in
writing, that the matter or matters be discussed at an open meeting. (Emphasis added.)
The underlined statement appears to offer real protection to an employee whose employment status is about to be questioned in an executive session to which the employee would not be invited to attend. Such a closed meeting denies the employee an opportunity to hear the allegations or to rebut any falsehoods.
Unfortunately, the Pennsylvania Sunshine Law, as written, doesn’t require the State agency to notify the employee in question that the planned executive session will concern his or her employment status!
And without a legal mandate for the State agency to provide such notice, there is no way for the employee in question to exercise his or her option of requesting an open meeting in place of a secret meeting!
One clear consequence of this gigantic loophole in the Pennsylvania
Sunshine Act is that it provides State agencies with an easy way to discuss the
employment status of any employee in a secret meeting without having to be
concerned that the affected employee might appear and rebut false accusations.
Randomly Enforced Laws
The issue of “randomly enforced laws” would seem to apply more at the level of individual persons than at the level of entire State agencies such as PASSHE, with some 11,000 employees. For example, while many drivers on an interstate highway at any given time may in fact be speeding, State police tend to focus attention on the most flagrant violators. It is said that, for practical reasons, police have no choice but to engage in “selective enforcement” of the speeding laws.
A Quest for More Options
We now return to the question of what options are available to citizens whose elected officials fail to enforce a law that would benefit them if enforced, but harms them by not being enforced as written.
In addition to the two State offices we have already discussed—the Office of Inspector General (OIG) and the Office of General Counsel (OGC)—there are two other State offices with the potential authority to ensure that State agencies such as PASSHE, obey the laws of the Commonwealth of Pennsylvania: The Office of Attorney General, and the Office of Auditor General.
To be continued.
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