Use of non-disclosure agreements leaves public in the dark

The routine use of non-disclosure agreements without any consideration of the public’s best interests has become a legal epidemic that undermines the very idea of an open and accountable society.

Andrew Nikiforuk, How Non-Disclosure Agreements have become a cancer on democracy, published on October 18, 2018 in The Tyee.

OPINION

Taxpayer money.

Those two words have become the credo for civilians and politicians alike. The sacred responsibility of government to spend taxpayer money wisely is a pillar of living in a free, just society. The phrase goes from the lips of political candidates to the ears of the people who understandably want revenue to be spent on important community endeavours.

Whether you hail from the left or right, taxpayer money is an overarching issue, important to everyone.

Here in the Madawaska Valley, The Current has been working to uncover the scope of hidden spending of taxpayer money. Recently, however, we have come across a roadblock. This roadblock is common at all levels of government, a natural by-product of it being systemically used inside the corporate world. It is called a non-disclosure agreement.

On its face, a non-disclosure agreement, or NDA, can make a lot of sense. It provides participants engaged in private discussions the peace of mind that details from said discussions will be held in the strictest confidence. Both parties have a mutual understanding that they will be protected from unwanted attention, or else legal action will be imposed.

Governments, though, have the legal and ethical requirement to demonstrate they are observing standards of transparency and accountability, especially when it comes to how it uses taxpayer money. The use of NDAs to deprive taxpayers of disclosure of how much of their money has been used to settle legal claims offends both the letter and spirit of these requirements. Moreover, if secret settlements are made in cases where misconduct is alleged against elected officials or township employees, it results in suspicion that public funds are being used in aid of coverups.

Take the case of the questionable events surrounding the firing of, and subsequent legal claim by, former Integrity Commissioner Jack Rosien. The facts uncovered by The Current’s investigations about Rosien’s allegations imply conduct that may have amounted to abuse of power on the part of members of Council. Remember, Rosien was fired before he could complete three investigations of members of the same Council that eventually fired him. Rosien also revealed that prior to his dismissal, he had advised one of those members that he was going to uphold the complaint against her. Council’s subsequent refusal to accept his offer, in the interests of saving taxpayer money, to complete his investigations adds to the unpleasant aroma surrounding these events. The additional financial burden placed on taxpayers because of this was the subject of an earlier article in The Current. Click HERE to read.

Rosien told The Current that his claim was settled just before a Court hearing, but he was not able to disclose any of the details, or indeed talk about his claim at all, because the Township had made the settlement subject to a confidentiality term.

Recently, The Current invited the Township to follow the example set by Whitewater Region by disclosing, despite the existence of NDAs, the amounts of taxpayer money, if any, paid not only to Rosien but also to fired Recreation & Community Development Coordinator Paul Nopper. A source has told The Current that a settlement was reached with Nopper after he had given notice of bringing a claim and that his settlement was also subject to an NDA. The Township has declined to comply with The Current’s requests.

As it stands, NDAs protect public officials from having to disclose how much of your money they spend even in situations where their own conduct has been questioned. This doesn’t sound like what the legislature had in mind when, in 2006, it amended the Municipal Act to impose obligations of accountability and transparency on municipalities.

It’s your money they are spending. At the very least, a full accounting as to where it is going seems not just applicable, but the main requirement of a competent, transparent government.