Blackened Blue Ribbon Commission?

by John Marino

December 7, 2001
Copyright © 2001 THE PUERTO RICO HERALD. All Rights Reserved.

. JOHN MARINOThe Blue Ribbon Commission, created by Gov. Calderón as a weapon against government corruption, has been under fire since a federal judge ruled here that it violated the due process rights of two of its targets: former Office of Management and Budget Director Jorge Aponte and former Natural and Environmental Resources Secretary Daniel Págan.

The legal question addressed by the ruling -- which is the subject of an appeal filed this week by the commonwealth -- is whether or not the panel's activities constitute a "judicial" or "adjucative" proceeding.

But the question most people are asking is whether the Blue Ribbon Commission is a modern-day Spanish Inquisition used to attack political opponents of the governor or a legitimate tool to battle government corruption.

The honest answer is that the panel is probably a bit of both, but how the public comes to view its workings may ultimately mirror its opinion of the Calderón administration as a whole.

When called to testify on the lawsuit filed by Aponte and Págan against the Blue Ribbon panel, Calderón did not deny that its targets would often be New Progressive Party members who had served under the administration of former Gov. Pedro Rosselló. She said the creation of the commission stemmed from a campaign pledge to launch a frontal attack on government corruption.

Officially titled the Independent Citizens Committee for the Evaluation of Government Transactions, its reviews of government transactions will undoubtedly stretch back across the eight years of the Rosselló administration. While the commission is free to investigate whatever it wants, under its chairman, David Noriega, a former gubernatorial candidate for the Puerto Rican Independence Party, it is expected to analyze the wave of government privatizations undertaken by the previous Rosselló administration.

That is unfair, as it reflects Noriega's bias as an independence supporter that privatization is bad because it represents the sale of "national patrimony." None of the major privatization efforts by Rosselló - such as the sales of the government-owned telephone utility, shipping line and hotel properties - have been clouded by corruption. Rather, corruption has resulted from unethical public servants entering into underhanded deals with dishonest businessmen.

Commonwealth lawyers, in an appeal filed this week to the 1st Court of Appeals in Boston, argued that the ruling, by U.S. District Judge José Fusté, erred because the commission is not a judicial body that can file criminal charges against anyone.

But it appears to Fusté and many other observers that the commission has the look, smell and feel of a judicial body -- even if it ultimately lacks the power to file legal charges.

While technically the commission only gathers information and issues reports and recommendations to the governor, their findings have been given great publicity in high-profile press conferences.

And such tactics as keeping evidence hidden from targets of their probes and refusing to allow witnesses to take notes or record its proceedings undercut the commission's claim to be an innocent fact-finding citizens group. One Popular Democratic Party legal expert told reporters that Blue Ribbon proceedings reminded him of a "Napoleonic tribunal."

Fusté's ruling, however, fell far short of total victory for Págan and Aponte. He threw out their claims that they were being politically persecuted and upheld the right of the executive branch to create this type of committee.

The commission, which includes respected individuals like former Comptroller Ileana Colón Carlo and Carmen Rita Vélez Borrás, a former judge and Justice secretary under the administration of former Gov. Carlos Romero Barceló, has been working at a break-neck pace, releasing four reports this year. All have been delivered to the governor and the Justice Department for potential prosecution.

One report accused Págan of undue interference in the awarding of a recycling contract and illegally destroying documents. The contract cost taxpayers millions, yet few tangible results stemmed from it, according to the commission.

It also accused Págan and Aponte of "gross negligence" in allowing subordinates to buy a building that cost $8 million more than it was worth. The building, which houses the Department of Natural and Environmental Resources, purportedly has cost taxpayers a whopping $43 million in all.

The corruption issue was probably the one that led to Calderón's victory last November, and an argument can be made that such a commission is needed because of the vast amount of government corruption that has been coming to light, mostly through the work of federal prosecutors.

Even local government agencies that have been delivering results, such as the Comptroller's Office and the Justice Department, appear to achieve results at a snail's pace, releasing reports or filing charges only after the main offenders have left office. The Comptroller referred over 50 reports this year, the majority on island mayors, to the Justice Department for potential prosecution. Yet many had already left office, and few investigations have been completed. A backlog at the Comptroller's Office tracking system of government contracts has also hampered the investigative efforts of local journalists.

So the briskness of the work done by the panel is refreshing. And commonwealth prosecutors have referred evidence involving an alleged hurricane cleanup fund scam by Hormigueros Mayor Francisco Javier Rivera Toro, of Calderón's own PDP, to the Special Independent Prosecutor's Office to determine whether to press charges against him. This is a sign that the administration is willing to go after suspected crooks of any political persuasion.

But the spearhead of that effort - the Blue Ribbon Commission - may yet undermine the fight against corruption - even taken for granted that the governor has the best of intentions on the issue.

From the start, Comptroller Manuel Díaz Saldaña and Government Ethics Office chief Hiram Morales expressed concerns about the panel. For one thing, as private citizens, they are exempt from regulations surrounding public employees, such as filing annual financial statements or being barred from taking contracts from other government agencies.

The Comptroller also argued that it duplicated functions of other government agencies, such as his own, and investigations launched by the Legislature. Meanwhile, lawmakers want the commission to explain their $800,000 budget.

The bit of jealous sniping between Noriega and Díaz Saldaña has risen to such a level now - with both accusing the other of being political partisans -- it threatens to undermine the whole concept of "transparency in government" that everyone involved takes such pains to stress.

Yet, Calderón has given signs she is ready to address most of these concerns by exhibiting flexibility on the issue. Even while battling the ruling in court, she said this week she would consider reconstituting the commission by passing legislation to create it and converting the commission's members into public officials from private citizens.

More significantly, perhaps, is the pledge by members to change procedures in order to continue operating under the federal court ruling that mandates it guarantees the due process rights under the 14th Amendment of witnesses.

And therein lies the rub.

If it does guarantee these rights - which include the revealing of evidence - it could jeopardize future prosecutions by giving defendants an unfair advantage through "premature disclosure" or other means - a point argued in the government's appeal of the Fusté ruling.

An intended "fast track" against corruption is not a bad idea, but the Blue Ribbon is proving too risky a route to take. The larger challenge for this, or any administration, is to revamp existing government agencies so that they can effectively and efficiently fight corruption, and government resources should be redirected to accomplish this.

Brought into existence through an executive order, the Blue Ribbon panel already has an expiration date. Whether it will reach it remains to be seen.

John Marino, City Editor of The San Juan Star, writes the weekly Puerto Rico Report column for the Puerto Rico Herald. He can be reached directly at: Marino@coqui.net

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