Public spaces, private rules

many government agencies are quietly redefining themselves as private, nonprofit businesses. Citizens are learning that, at some agencies, public accountability laws no longer apply, or never existed.

Our proven tools for ensuring good government include the rights to observe and record government meetings, purchase copies of government records, monitor conflicts of interest, and demand fiscal controls. But every time another government agency redefines itself as a “private nonprofit” corporation, those rights instantly evaporate.

To understand what’s going on, it may be helpful to take a little quiz. Can you guess which of the following are private businesses?

  • The Rose Fitzgerald Kennedy Greenway Conservancy is the operator and protector of one of Boston’s largest downtown public parks, which was built with city, state, and federal assets.
  • The Frog Pond Foundation, sporting the mayor’s name, the Boston Parks Department logo, and the city insignia, operates a government-built winter ice rink and summer wading pool in the Frog Pond on Boston Common (created in 1640), the oldest American public park. Boston Common is operated by the Boston Parks Department.
  • Boston Connects is an anti-poverty agency created by Congress, funded through the US Department of Housing and Urban Development and controlled by the mayor of Boston, to approve federal tax-free bond loans in impoverished neighborhoods. Boston Connects funds turnpike air rights development projects, including a $35 million federal tax-free bond loan to Columbus Center, approved in 2007, and a $52 million loan slated for Fenway Center next year. It is staffed by economic development personnel from the Boston Redevelopment Authority.
  • Boston Loan Development is a program that lends up to $250,000, at government-subsidized rates, to small, non-retail businesses. The program is one of several economic development industrial initiatives that are staffed by Boston Redevelopment Authority employees.
  • The Fund for Parks and Recreation maintains Boston public parks and recreational facilities. It is staffed by Boston Parks Department employees, who are paid from property taxes and other city revenues.
The correct answer is all of the above. The Greenway Conservancy, Frog Pond Foundation, Boston Connects, Boston Local Development Corporation, and Fund for Parks and Recreation all operate as private businesses, so citizens have no legal right to copy public records and no legal right to attend or record public meetings. Just like private businesses, these agencies choose what they release to the public, and what they withhold.

Not only are public agencies getting privatized, but public property is, too. For example, the 1.7-acre Normal B. Leventhal Park in Boston, casually referred to as Post Office Square, is actually owned by a limited dividend corporation called the Friends of Post Office Square Inc. After 40 years, when all investors are to be repaid, the park is supposed to revert to city ownership, but in the four-decade meantime, it is a private business.

Because Post Office Square and the Rose Fitzgerald Kennedy Greenway are privately controlled, citizens visiting them lose the right of free speech, and, as with all private property, the proprietors can have trespassers arrested. The Greenway does plan to allow free speech, in reserved areas where visitors can, for example, collect signatures to run for office or recite religious texts, but visitors exercising their rights of free speech who step outside the reserved area — into the rest of the park — risk arrest.

A public agency wanting to evade Massachusetts public accountability laws first obtains nonprofit status simply by getting the US Internal Revenue Service to agree that it is exempt from federal income taxes. The agency then obtains “private” status by simply writing bylaws with a sentence that declares the organization as private.

Once a government body is privatized this way, the public has little practical recourse because the very transparency laws that would assist citizens in revoking the private nonprofit status no longer apply.

few citizens know that such privatization is possible, because the evidence is well hidden. Agencies don’t publicize their identity switches and often continue portraying themselves as regular public agencies. Even an agency’s own employees are often unaware that the public body employing them operates itself as a private business. The truth comes out only if a citizen tries to enforce public accountability laws and doesn’t take no for an answer.

I attended the Greenway Conservancy annual meeting on September 1 and told Conservancy office manager Priscilla Bradley that I would be recording the proceedings, as permitted by the Massachusetts Open Meeting Law. She told me that the public is never allowed to record anything. When I insisted that the Greenway is a public park, she directed me to executive director Nancy Brennan, who said that written legal opinions allow the Conservancy to ignore the open meeting and public records laws. I replied that any organization controlling a public park is, by definition, a public body and that I was going to exercise my legal right to record the meeting. She then passed me to Conservancy chairman Peter Meade, who listened to my rationale and promptly reversed the policy. While Meade deserves credit for recognizing the Conservancy’s public identity, he granted me permission to record the proceedings only after a showdown.

When I asked for the release of minority jobs contracts that Boston Connects negotiated with developers, executive director Shirley Carrington patiently replied that she doesn’t want to, doesn’t have to, and can’t be forced to release them — because Boston Connects is a private, nonprofit corporation where citizens have no standing.

A public agency often declares itself to be nonprofit to help it raise money, since a donor to a nonprofit can legitimately claim a charitable contribution as a tax deduction on his tax return. At the same time, however, I believe the “private” status should never be used, because it’s not necessary to accept donations and it turns otherwise accountable agencies into shadowy entities that are beyond the reach of government accountability laws. A private status is an open invitation to agency staff or elected officials who want to reduce — or end — public scrutiny.

Executives at government agencies claiming to be private bodies share a remarkably similar defense: Because they voluntarily comply with some parts of some public accountability laws, they believe that they are excused from complying with all the rest.

Meet the Author
Massachusetts public accountability laws must apply uniformly to every public function, so that the “private nonprofit” label never shields government from having to be transparent. Otherwise, we may discover one morning that the quaint, service-oriented offices long revered in civics schoolbooks have been replaced by a tight-lipped army of corporations, answerable to people we can’t identify, following policies we can’t see, and operating in ways we can’t control.

Ned Flaherty is an urban planning activist and a co-founder of the Alliance of Boston Neighborhoods.