For months, a full-scale accounting of the failure of the Washington Bridge has been out of reach for the general public.
Now some are questioning why that information will remain undisclosed even longer as lawyers hired by Gov. Daniel J. McKee decide whether to recommend filing lawsuits against contractors who worked on the bridge.
During a July 10 briefing, attorney Max Wistow said he is sympathetic to the public’s right to know how and why the Washington Bridge, a key span that carries Interstate 195 between Providence and East Providence, deteriorated despite being worked on and inspected by numerous contractors.
But Wistow said his strategy is to err on the side of caution and delay the release of a forensic analysis of the matter.
“This is not a slip and fall at Stop & Shop,” Wistow said. “The governor said the bridge that is coming up is going to last beyond our lifetimes ... I don’t want to say the lawsuit would last a lifetime. But it’s not going to be over in a month or two.”
But John Marion, executive director of Common Cause Rhode Island, said the lack of immediate transparency and accountability surrounding what led to the closure of the westbound side of the bridge in December could come with costs of its own.
Marion noted that the litigation over the Washington Bridge could drag out for years. The state has estimated the price tag to demolish and rebuild the span will be well over $300 million.
"In the meantime, the public is in the dark about why the bridge failed, even after tens of millions of dollars were already spent on its rehabilitation," he said.
“While the lawsuit may be an important tool for accountability, it shouldn't be at the expense of the public's right to know what happened," he said.
The need for transparency is heightened because the same leaders who presided over the bridge's final demise are about to spend hundreds of millions of dollars of taxpayers' money to try and replace it, Marion said.
Ross Cheit, Brown University professor of political science and public policy, said there is a tension historically between providing accountability to the public and accountability in civil or criminal court.
Cheit, who was the primary author of the 1991 report on the collapse of the Rhode Island Share and Deposit Indemnity Corp. that touched off a banking crisis, said this tension plays out locally and internationally more often in criminal matters where information is revealed right away.
“Iran-Contra was a case study in how, no matter how hard you try to separate the two, it is impossible to have high-profile criminal convictions in cases that were preceded by high-profile public hearings,” he said. “But in the [Washington Bridge] case, part of me wonders why there is any danger to a possible civil claim in releasing information that is all about past events, cannot be changed, and will eventually come out one way or another.”
“A lawyer-informed litigation process will seek to minimize public fault and maximize private fault," Cheit said. "That is my bigger worry in this case. Lawyers live with a kind of secrecy around litigation that is not necessarily in the public interest. And that concern is greatest in cases where the blame might be split between public and private sectors. An honest accounting would tell us that.”
However, Michael J. Yelnosky, a law professor at Roger Williams University School of Law, understands the reasoning.
He said much of what the public wants to know will no doubt be revealed in court filings, beginning with the initial lawsuit that will spell out who is being accused and for what, and what the state believes it is entitled to.
“You don’t put all your cards on the table if you don’t have to,” he said. “There is no reason to tell a defendant what you know before you have to tell them.”
Yelnosky views the litigation that followed the collapse of the failed video game company 38 Studios in 2012 as a similar situation.
“It turned out to be a good call for the state to hire Wistow then, and that might be the right call again now,” he said. “And as in 38 Studios, there will be conflicts that come up about public disclosure of information and the integrity of related civil or criminal litigation. When there is the public interest there is always going to be a push and pull.”
But anyone waiting for additional details that will trickle out in court documents may be disappointed.
“This could take a very long time,” said Yelnosky. “A lot of people have touched this bridge. When building any major construction project, you have contractors and subcontractors. It can be very hard to finally resolve it.”
Cheit said he hopes that any party who acted negligently is held to account, from the private contractors to state agencies to the administration.
An out-of-court settlement “might be good for the bottom line,” he said.
“It might also just happen to insulate public actors against accountability.”
Marion said public officials should “be able to walk and chew gum at the same time.”
“The postmortem of the RISDIC scandal was published long before litigation ended over the banking crisis,” he said. “We can have, and we must have, transparency and accountability.”
