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    Monday, March 27, 2023

    Quasi-public is really public

    The Connecticut Port Authority has been in the pages of The Day a lot lately, and not, generally, for happy reasons. Its decisions are frequently faulted, and the word scandal is used generously. Further, its relationship to state government seems, I suspect, unclear to the ordinary reader. The term “quasi-public authority,” as the Port Authority is described, is clear as mud. But those words - “quasi-public authority” - are in my opinion the root cause of the alleged transgressions at the Port Authority and at many other public entities.

    First, it’s important to understand what a quasi-public authority is. This helps us understand why an organization of this type presents unique challenges, both for public oversight and for containing rogue behavior. I don’t know where the moniker “quasi-public authority” originated, but in truth it’s a misnomer. There is nothing “quasi” public about it. These entities are created by the state legislature, they are therefore creatures of the state, and they are simply “public” entities.

    The laws that create these entities, “enabling acts,” typically establish a governing board, with the members appointed by the legislature, the governor, and sometimes other Constitutional officers like the state treasurer. They operate, in this sense, outside of ordinary state government, in that they are not part of an executive department such as DOT. The CEO reports to a board, not to the governor.

    But just because they operate outside of the ordinary state bureaucracy does not mean they aren’t public entities. Legally, these authorities are political subdivisions of the state, not really any different than a city or town. They manage their own affairs within the parameters of their enabling act, and often are allowed to raise their own revenue, buy and sell property, hire and fire employees, and enter into contracts. But they do these things all strictly within the parameters of their enabling act and state law.

    The reasons for creating an authority can vary. It’s sometimes argued that this structure provides some level of independence for the authority to operate free from a sclerotic bureaucracy, and permit more freedom in hiring and firing, for instance, or fewer constraints on contracting procedures. Sometimes what an authority can provide is a degree of political cover for elected officials. When things go off the rails, elected officials can shield themselves from the authority’s bad decisions, and offer up a sacrificial lamb to the voters and the press by firing leadership.

    In my experience, these entities have a wide variety of relationships to political leadership. Some authorities act seemingly without regard to the wishes of elected officials, whereas at the Boston Redevelopment Authority, where I was general counsel, we dared not do anything of any significance without approval from the mayor’s office. Discerning what political dynamic is at work is often unclear, leaving employees confused about leadership, and the public and press wondering who to hold accountable when things go wrong.

    I don’t purport to know what’s gone on inside the Port Authority, other than what I’ve read in The Day. But in my experience with similar entities, problems can arise when the board, leadership, and staff take their separation from the state bureaucracy too seriously. Sometimes there is a well intentioned entrepreneurial spirit motivating this - they want to take the ball and run with it, and get things done. They want to distinguish themselves from the sclerotic state bureaucracy by being nimble, making decisions quickly, and being an able partner to the private sector companies they work with.

    The trouble starts when people begin to think of themselves as not just outside of the state bureaucracy’s reporting structure, but outside of the bureaucracy’s legal and ethical constraints as well. As general counsel, I would often caution staff that they could not, for instance, accept anything of value from anyone with business before the authority, and explain that state ethics laws applied to them just as it did to the folks working over at the state office building. This sometimes came as a surprise to them, and did not make me Employee of the Month.

    Recently, Senator Osten of Sprague and Representative Conley of Groton have introduced proposals to address some of the contracting irregularities alleged to have occurred at the Port Authority. These may be helpful in clarifying contracting rules for the Port Authority and other state authorities.

    But in my experience the causes of “scandals” that arise at quasi-public authorities are more cultural than technical or legal. The boards, leadership and staff of these entities may not be public employees in the sense that the state treasurer doesn’t sign their paycheck. But they work for the public, they are working with public property, and public money, and there should never be any doubt about that.

    I am not arguing against the use of quasi-public authorities. I’ve seen them do important work on the public’s behalf that might not have been accomplished if it depended on the workings of the traditional government bureaucracy. But I’ve seen things go sideways, too. As with any sort of public enterprise, success is more likely when there is a defined purpose, good leadership, clear lines of authority and accountability, and oversight from both within government and from the press and public.

    State laws can be complicated, and ethics laws are notoriously fuzzy around the edges. Parsing the words of a statute does not always give a clear answer.

    So I learned to give this advice: Just assume that what you are planning to do will appear on the front page of the local newspaper. That usually brought more clarity to the advisability of any decision or action than any statute, regulation, or outside legal opinion ever could.

    Peter O’Connor has been a lawyer and public official in Connecticut and Massachusetts for over 30 years.

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