Hot on the heels of the Long Island/New York school district attorney/superintendent scandal, which has and will continue to expand as long and as far as anybody who wishes to scratch the surface will take it, comes this curious solution from the opinionistas at Newsday.  What if there was a Sarbanes-Oxley-type law holding elected officials both responsible, and criminally liable, for the competent exercise of independent judgment?

One school superintendent said that his contract prohibits the school board from meeting unless he is present in the room, according to Nassau County Comptroller Howard Weitzman, who told the story at a hearing on Thursday. Weitzman’s point was that the contract provision greatly reduced any chance that independent auditors could alert school board members about financial problems.

“I was told this was a common practice,” Weitzman said of the contract provision. “This is a cultural issue that needs to be looked at and discussed openly.”

He said the schools need a culture change, to which hearing convener Attorney General Andrew Cuomo responded, “Prosecute the violations of law, and then you’ll see the culture change.”

This scene could have played out in the private sector in the days before Sarbanes-Oxley reform.

The Sarbanes-Oxley Act was passed in 2002 in the wake of major corporate and accounting scandals at Enron, Tyco International, Adelphia and WorldCom. Sen. Paul Sarbanes (D-Md.) and Rep. Michael Oxley (R-Ohio) recognized that the boards of directors at these companies did not have enough information or professional acumen to see the impending doom. Board members were supposed to be in charge of the company, but instead they were under the thumb of the chief executive and other senior managers.

Sarbanes-Oxley, among other things, established new standards for boards of public companies — including criminal penalties for not living up to the duties. The act stressed that outside auditors must be free to express their concerns to the board, without the company’s managers present.

If the directors of private corporations are liable for their failure to live up to their duties, should we expect less from public elected officials?  After all, the shareholders of corporations made an active decision to invest; Taxpayers have no such choice. 

Having spent some time around a variety of local government units, what I like to call baby governments, there are two overarching things that smack you hard in the face.  First, the majority of people involved, though largely well intended, lack the competencies to perform the job.  They can’t read a budget.  They don’t have a clue about the law, or even the basic civics involved.  They are incapable of critical analysis. 

These problems are exacerbated by the fact that taxypayers are generally clueless as to how their baby governments function, holding some strange belief that there are a bunch of gnomes in a backroom somewhere doing the legwork necessary to provide all the services they think they’re receiving.  They believe that this is happening because they want to believe.  The alternative, that a bunch of taxpayer money is flushed down the broken and dirty toilet of their baby government, is too unpalatable.  At best, it’s deeply depressing.  At worst, it would compel action, and people don’t want to get involved.  They pay taxes so other people can get involved and do it for them.

The negative to such a plan is that a SOX type responsibility would likely prove quite costly to baby governments, both in terms of redundant safeguards as well as the availability of competent elected officials.  There are not enough people interested in running for office for volunteer jobs that suck up a substantial amount of time (if done properly) and offer little by way of prestige, except to those with the lowest self-esteem.  Competent people are busy, and busy people don’t care to spend their time on such parochial matters.

A secondary problem is that people assume greater self-competency than they deserve.  This is a pervasive problem, as very few people can apply the level of self-criticism needed to recognize that they lack the knowledge, experience or integrity needed for public service.  The Dunning-Kruger Effect is in full force, and the greater the desire to achieve prominence, the lesser the ability to realize their incompetence.

That said, there is essentially nothing available at present to hold a baby government elected official responsible for their actions, and hence no motivator to constrain them to be responsible.   Reliance on the “professionals”, the very people who lead them down the path to perdition, is pervasive.  Most think that this is the way it’s supposed to be, with elected officials doing little more than smiling as they rubber stamp.  It’s a very easy job when no thought is required, and no thought it required when there is no liability for malfeasance.

While SOX is subject to well-deserved criticism for being unduly onerous on small corporations, and frequently creating very costly processes when there is no clear need to make everything more complex, that doesn’t mean the threat of criminal prosecution doesn’t serve a purpose.  Without consequences, the only force that drives people to do the right thing is their internal sense of integrity.  History teaches that integrity isn’t always sufficient.

This is an avenue that is definitely worthy of greater exploration.