By John Carr, NMA Massachusetts Activist
“Il est bon de tuer de temps en temps un amiral pour encourager les autres.” — Voltaire, Candide
I have a dream. It involves ruined men and crying children and massive tax increases.
There are a few thousand mayors, DPW commissioners, traffic engineers, and other state and municipal employees who ought to be in prison now. Here’s why.
The federal government gives highway money to states. In return, states agree that public roads in the state will be in substantial compliance with federal rules.
Some states make the same deal with cities. Where I live the term is “Chapter 90” money. The state pays for city streets and the city agrees to follow state rules.
Prominent among the rules is compliance with the Manual on Uniform Traffic Control Devices (MUTCD). That book explains when stop signs can be posted, how speed limits can be altered, what colors may be used on street name signs, and so on for hundreds of pages. Speed traps, nuisance stop signs, and decorative-but-illegible road signs are not welcome on American roads. Legally speaking.
Cities and states hate the obligations that come with road money. Imagine if the mayor had to say “no” to a stop sign request when there was no need for a stop sign. Imagine being forced to replace decorative painted wood street signs with reflective signs. Imagine if speed limits had to be set based on traffic conditions instead of the village’s revenue needs. Absolute chaos. Political chaos, I mean. Driving would be safer.
There is an informal understanding that certain violations will be overlooked. Sometimes engineers will be asked to make excuses to keep up appearances. The worst that happens is, a city has to admit it “discovered” that some signs were out of compliance.
Here is what I want to happen instead.
It’s not just a good idea, it’s the law
Let’s take a hypothetical small city. Against the advice of his traffic division the Mayor ordered the speed limit reduced on the main road through town, took a 10% state 90% federal grant to repave it, then ordered a bunch of stop signs posted to slow traffic on the smooth pavement. That’s two violations of traffic control device rules, and federal jurisdiction thanks to the federal aid.
Somebody’s signature is on the promise to follow the rules. That is a false statement to a federal agency, a felony (18 USC 1001). Up to five years in federal prison. Larceny or fraud under state law, and a bunch of related crimes if the prosecutor is imaginative.
The city’s road money was obtained by an explicit or implied certification that the rules were being followed. That certification was a lie. Under the False Claims Act the government can take the money back plus punitive damages.
In many states posting unauthorized or nonstandard signs is a misdemeanor. Whoever did the deed, or conspired or aided and abetted, can spend some time sitting in county jail wishing he had stood up for safety and professional standards.
In 1996 some young people in Florida stole some stop signs. The jury convicted them of manslaughter after a missing sign caused a fatal wreck. What if they had posted an illegal sign? Can you go to prison if a stop sign causes an accident? The case is tough to prove, but if a pretty girl gets flattened by a truck the jury might convict. (The sign thieves got 15 years but were freed due to prosecutorial misconduct.)
Lock them up
Last year NPR interviewed a former federal financial crime investigator. He said there wasn’t enough manpower to go after all of the top six Wall Street companies, but there was enough to pick one of them and crush it. The others would get the message.
We can’t lock up every mayor, DPW commissioner, and bad engineer any more than we can lock up every crook on Wall Street. But the DA can pick one to start. How about a city that created an illegal speed trap? Misdemeanor MUTCD violation (or conspiracy) for posting the nonstandard limit sign. Felony fraud for everybody who prepared or signed state-aid project paperwork. Civil false claims violation for the city. Loss of pension due to criminal conviction related to official duties. Referral to federal prosecutors on similar charges.
Maybe you could pick one to start. A few states allow private prosecutions of misdemeanors. A few states define MUTCD violations as misdemeanors. Could you write the county engineer a speed limit sign ticket? Possibly. You have to know exactly what you’re doing to take that route; the law is full of technicalities.
Some of these laws require guilty knowledge. Ignorance of the law is no excuse, but ignorance of facts can be. Write a letter to the mayor, DPW commissioner, etc. explaining why the signs are improper Now they can’t plead ignorance.
Take their ill-gotten gains
The False Claims Act encourages whistleblowers. If you discover a government payment based on false information you can sue on behalf of the government. A private prosecution in the name of the government is called a “qui tam” action. If you win you keep 10-25% of the money that was fraudulently obtained.
Often the incriminating information is sitting there in public records. I’ve described some of these before, “engineering” studies where the engineer’s report clearly rules out the action taken. You can’t use news media reports. You can’t sue if the violation is officially known to the superior government (but the government is too lazy to act on it). But the city’s own self-incriminating filing cabinet could be a gold mine.
The best source of a False Claims Act suit is a DPW employee. He tried to follow the rules. The boss reassigned him from traffic engineer to tree surveyor in retaliation, and the replacement approved the speed trap. His firsthand knowledge of the department’s dirty secrets could make him rich.
You’ll need a lawyer to explain all the details and give you an opinion. There is also a political angle, because the Attorney General can take over a state case, and the Justice Department a federal case, and you want them to help you rather deliberately lose your case.
Pour encourager les autres
Voltaire’s famous expression can be translated, “It is good to execute an admiral from time to time to encourage the rest.” He was referring to a 17th Century British admiral who lost a battle after fighting hard, but possibly not hard enough.
I want a DPW boss dragged from his bed in handcuffs as his family cries and the bank gets ready to foreclose. Sure, he was just following orders. Sure, everybody else does it. If we let that be a defense we’ll never fix the system.
I want the mayor who gave the orders in the next cell, along with the engineer who signed off on a blatant violation. I want the citizens who demanded the speed trap to face huge tax increases to compensate for the fine the city has to pay. City councilors may have legislative immunity, but they have to face the voters when the bills come due.
Execute one city to encourage the rest.
Next time the county engineer won’t just be worried whether the county’s insurance company will have to pay somebody’s hospital bill. He won’t just be worried about his PE license. He will be worried about his freedom.
Good news for him. It’s easy to stay out of jail. Just follow the law.