Adam Arnold, Government Accountability Project Investigator and Environmental Counsel, lives in San Juan just a few blocks from La Fortaleza –the Governor’s residence and focal point of the recent protests which led to Governor Rosselló’s resignation. He is observing conditions as they unfold.
Puerto Rico suffers from a history of corruption, an insurmountable debt crisis, failing infrastructure, the lingering effects of (and threat of future) major hurricanes, and a quasi-colonial status in relation to the United States that has deprived the island of autonomy and self-determination.
These troubles are interconnected through a common theme: a lack of accountability.
Huge public protests against the current administration have proven to be an effective method of demanding accountability: chants of “¡Ricky Renuncia!” (“Ricky, resign!”) did indeed bring about the resignation of Governor Ricky Rosselló, holding him accountable for his moral and political shortcomings. But the protests could not have succeeded but for a dearth of tangible support for the Governor and his administration in the wake of several very public scandals.
Moreover, the protests might have been unnecessary if the island-commonwealth possessed some essential accountability tools. The ousting of the Governor, and the resignations, investigations, and federal indictments of members of his administration in recent weeks all demonstrate the power of a unified people acting for change, but also bring much-needed attention to the need for improved transparency and accountability within Puerto Rico’s government.
The chat scandal that directly led to Governor Rosselló’s forced resignation (known among other names as “Chatgate” or “RickyLeaks”) came about through the release of 889 pages of private messages on the Telegram app by the Center for Investigative Journalism (“CPI” for its Spanish acronym. Access to CPI’s reporting is available here in Spanish). The chat, between the Governor and eleven male members of his inner circle, some of whom served or were serving in his administration, was sensational for its offensive, abusive, homophobic and misogynistic language directed toward political rivals, celebrities, and even the thousands who died as a result of Hurricanes Irma and Maria and their aftermath.
Below the adolescent veneer were greater concerns of corruption, including in the awarding of government contracts, and plans to subversively manipulate media coverage of the administration and its opponents. The Governor ultimately announced his resignation not directly in response to night after night of protests outside his official residence and by members of the Puerto Rican diaspora, nor to a massive march through one of San Juan’s main highways, but because a tribunal had determined multiple impeachable offenses had taken place, and were preparing to remove Rosselló through the established political mechanisms – impeachment being a rare accountability tool in Puerto Rico’s legal toolbox.
The corruption is the biggest concern, but is, as noted, nothing new. What sets these scandals apart is their callousness, coming at a time when so many Puerto Ricans are still suffering from the impacts of the hurricanes, the island is in a desperate ongoing financial crisis, and citizens are leaving the island at an alarming rate.
That callousness was thoroughly illustrated by the chat messages, which paint the governor and his close allies at best as indifferent to the suffering of Puerto Ricans, and at worst as examples of a political elite consisting of the spoiled children of privilege. Rosselló himself is the son of former Governor Pedro Rosselló, whose administration faced its own corruption scandals.
And that points to the underlying concern: a culture of corruption that accountability measures, if ever adopted, may yet address.
Limited access to government records
The recent scandals in Puerto Rico have been both tipping point and tip of the iceberg. The island’s history of corruption is at once acknowledged by, and a source of exasperation to, most Puerto Ricans. Recent events are the culmination of months, years, and decades of inadequate and even untrustworthy governance. The lack of transparency and accountability both within the government of the commonwealth and between the US and the island bear responsibility. Improvements in those areas are achievable, and would help to limit further corruption.
Puerto Ricans are fed up with corruption, as the protests have shown. Freedom of Information (FOIA) and effective whistleblower protection laws would go a long way to addressing the problem – not only for their practical application, but for the political will they would demonstrate. A candidate or party winning office on a tangible government accountability platform – with specific, clear recommendations on ways to improve transparency – could sway the political culture for the better.
Speaking informally, one Puerto Rican – an Uber driver whose children are grown and live in the US – expressed surprise at the idea of something like FOIA. He said that a candidate pushing for that kind of reform would get “a lot of votes.” Ironically, Governor Rosselló attempted to establish such a law earlier in his administration, expressing his desire for increased transparency. Clearly, words and even deeds are not always enough. But, based on protests that included participation by a substantial portion of the island’s population, the public appears to support greater accountability.
Currently FOIA in Puerto Rico – such as it is – is a largely ineffective affair. While “Government Publications” are accessible, other government information and communications can generally only be received through filing a lawsuit – a measure beyond the means of most members of the public, and seemingly without adequate protocols in place to create a process sufficiently streamlined to be very useful.
Yet the entire Chatgate episode underscores the need for FOIA in Puerto Rico: these chats – during which official government business was discussed among government officials – could have been available through a targeted FOIA request, but instead had to be revealed by an insider to investigative journalists. While no one reasonably questions the value of strong investigative journalism, the need for public access to information that impacts the public should be self-evident in an avowed democracy. Would the availability of FOIA have changed the mentality of those involved in that chat, or otherwise affected their policy and personal choices? Not necessarily – but a greater threat of exposure might have curtailed some of their excesses and would have provided a greater degree of accountability than they expected to face.
A shortage of explicit whistleblower protection
The general circumstances of the chat also underline the need for whistleblower protection: currently government employees revealing information such as that contained in the chat have no effective mechanism for fighting retaliation and would likely be deterred from doing so due to what is often referred to as a “mafia culture.” Fingers have pointed at whom it might have been who revealed the chat’s existence, along with suspicions of the reason for doing so. Further investigation may reveal these details, but popular opinion is that the “leaker” was either trying to deflect culpability for his own role in the corruption scandals, or was exacting vengeance for actions already taken against him. Government Accountability Project cannot take a position on this without more information, but stands by the rights of government employees and others to come forward with disclosures regarding government waste, fraud, and abuse.
The need for whistleblower protections, generally lacking currently, are clear if accountability is to be achieved. Conflicts of interest in the awarding of lucrative government contracts also point to the need for False Claims Act legislation, which currently exists only on the federal level and through a recent law directed at limiting Medicaid fraud. (This was enacted in the last year specifically to assure the receipt of federal funding.) Exposing improperly awarded contracts would be simplified through an FCA-style awards incentive, applicable to all government contracts, possibly first targeting mishandling of funds for disaster recovery. The Federal False Claims Act, of course, dates to the Lincoln presidency – thus predating the 1898 annexation of Puerto Rico by the US from Spain. Such a law could have been useful throughout Puerto Rico’s history as a US territory, but perhaps never more so than in the wake of the hurricanes that decimated the island in 2017, when many contracts were awarded hastily, and at least a few were found to be improper.
Accountability and Colonialism in Puerto Rico
Speaking with people with knowledge about Puerto Rico, its history, and its legal system has yielded a consistent, if slightly sarcastic, response to the question of accountability for Puerto Rico’s government: “There is none.” This is to say, there is no functioning FOIA law other than applicable federal law, which has thus far failed to yield vital information on the handling of Puerto Rico’s debt, there are no effective whistleblower protections aside from applicable federal laws and Constitutional provisions (i.e. 1st Amendment), and even False Claims Act variations are extremely limited, as noted.
A “casual approach” to government contracts is a common refrain, as conflicts of interest have often been present in the awarding of contracts to contractors with ties to administration officials. Claims of simple pocketing of funds is also a historic criticism, with some emphasis on the Puerto Rican Electric Power Authority (PREPA), the public-private partnership that has controlled Puerto Rico’s power grid since 1941. PREPA’s failures were brought into sharp focus following the 2017 hurricanes that left much of the island without power for months, and resulted in an estimated 4,645 deaths on the island – those callously mocked by Rosselló and his cohort.
The Puerto Rican Constitution was enacted in 1952, giving the island its current “commonwealth” status. In 2016, President Obama approved creation of an appointed Fiscal Control Board (“the Board,” or “La Junta”) through the law known as “PROMESA” (Puerto Rico Oversight, Management, and Economic Stability Act). PROMESA was passed into law in response to Puerto Rico’s tremendous debt (which had ballooned due to a combination of factors including the global financial crisis of 2007), and the island’s legal inability to declare bankruptcy (Puerto Rico’s Chapter 11 status was inexplicably removed in 1984). Many on the island feel PROMESA represents a de facto revocation of Puerto Rico’s status – a declaration that Puerto Rico is, in fact, a US colony.
Don’t just treat the symptoms: Cure the disease of colonialism
The Fiscal Control Board consists of seven voting members, all appointed by the US President under advisement of Congress. One non-voting member is appointed by the Governor of Puerto Rico. The Board has no established checks and balances for its power, which it can exert over essentially all of Puerto Rico’s financial decisions. This is naturally a major cause for concern on the island, not only because Puerto Ricans have no say in the actions or makeup of the Board whose power severely limits Puerto Rico’s autonomy, but because there is no clear means for assuring that members of the Board do not have conflicts of interest – that is, that they themselves do not benefit from their disposition of Puerto Rico’s debt. There is no built-in transparency in the Board’s decision-making.
In the wake of Governor Rosselló’s resignation, many fear the Board will attempt to seize greater control. There is already a general outcry against this prospect: the people of Puerto Rico want accountability, not colonial rule.
Among the issues with the decisions made by the Board are the constant demands of increased austerity for an island already suffering from poverty and lack of resources. Closing schools, slashing funding for the island’s public university, and limiting pensions for government employees including teachers and professors has harmed long-term prospects for growth, as have the ongoing privatization of public resources (including PREPA). Such measures, in the face of the island’s other struggles, all carried out under the premise of addressing a debt that has not been properly audited, can only be called draconian.
The hope of many is that exposing how the debt is being paid, to whom, and for what will expose much of the current and historical corruption that has led to an unpayable debt burden, and would furthermore find that much of the debt was generated illegally, by under-the-table dealings between politicians in Puerto Rico and politicians and corporations on the mainland. Calls for a full audit of the debt have not yet resulted in transparency. This, too, represents an unacceptable lack of accountability. While FOIA might create the ability to access this information, an immediate, public audit of the debt is a necessary measure.
The internal question central to Puerto Rican politics has long been one of status: statehood, independence, or the in-between of the commonwealth status quo. With the truth of colonialism now fully exposed, the important question simply becomes one of self-determination. If Puerto Rico were to choose to petition to become a state, a fair process must be established to allow for that course. If greater sovereignty is demanded, the US should also help to provide for that possibility by loosening its grip on the island and providing the support that is owed by a colonial power when it finally cleanses itself of imperial status. But most of all Puerto Rico needs to be able to make an informed, uncoerced choice. It can only do so by seizing control of its own destiny, handling its own financial matters, and rejecting the influence of opaque, unaccountable leaders and institutions.
Ricky renunció: Ricky has resigned. What comes next remains unclear. The line of succession consists entirely of gubernatorial appointees, the first of whom – Puerto Rico’s Secretary of State, Luis Rivera Marín, resigned for his role in Chatgate, and the second – Secretary of Justice Wanda Vázquez, faces her own corruption questions, and has stated that she does not want the job.
As of July 31, Governor Rosselló named a new Secretary of State who would become his successor. An emergency session of the island’s legislature was planned for August 1 to confirm Pedro Pierluisi to the position.
Pierluisi has a long history in Puerto Rican politics, and close ties to the Rosselló family. He served as Secretary of Justice during the administration of Ricky Rosselló’s father, served eight years as Resident Commissioner – Puerto Rico’s elected, non-voting member of the US Congress – and lost their party’s 2016 gubernatorial nomination to Gov. Ricky Rosselló.
But the island’s Senate delayed the hearing to approve Pierluisi until Monday, August 5. The House of Representatives may act August 2, and are considered likely to vote against Pierluisi. It is unclear what a vote either way would mean: Vazquez could be declared Governor until Pierluisi or another successor is approved, Rosselló could delay his resignation until a choice is made, or the legislature could suggest or impose another option.
All of these choices will face the response of an agitated, impatient populace, who wish to see their island move forward and put its scandals, crises, and corruption behind it. In any event, establishing an accountable system will be a longer process than the selection of Ricky Rosselló’s successor.