NIMBY Wars: security, confidentiality essential to land use politics

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(Editor’s Note: Experience shows that security and confidentiality are crucial concerns for clients and land use political consultants and that most project strategy documents eventually wind up in the wrong hands; never put in writing anything you don’t want opponents  to know)

By P. Michael Saint, Robert J. Flavell and Patrick F. Fox 

Because clients accept their land use political consultant in the inner circle and share proprietary or sensitive project information, they are understandably concerned about confidentiality and security.

A professional land use political consultant who can’t keep a secret or who develops a reputation for double-dealing will not last long in the business. The good reputation of the land use political consultant is therefore the client’s best protection against disclosure.

Although a client can request a written confidentiality agreement, it is unwise to rely on such a document for protection because filing a lawsuit to enforce it would ensure that the confidential information the client is trying to protect gets into the newspaper. It’s far better to limit the list of people who have the information to those who truly need to know, and to remind them that the information is confidential.

Experience has shown that leaks usually come either from wannabe consultants who don’t appreciate the importance of sensitive information or from the client’s own in-house team. True industrial espionage is rare in the development business: the cause of the problem is usually to be found in the developer’s own nest.

A professional land use political consultant treats client information, as well as project information, as highly confidential. This applies as well to campaign plans and strategies, since opponents who have access to the developer’s war plans can easily devise countermeasures.

Experience has shown that most project strategy documents eventually wind up in the wrong hands, leading to the First Rule of Inevitability: never put in writing anything that you don’t want opponents to know. In political circles, this method of inscrutability is known as “the nod and the wink”: never write when you can speak, never speak when you can nod, never nod when you can wink. Melodramatic as that may seem, many clients want to keep their business (and their involvement in some aspects of some projects) quiet. That is why, in dealing with a client, a professional land use political consultant will generally work at the “C” level: chief executive officer (CEO), chief operating officer (COO), or chief financial officer (CFO).

A professional land use political consulting firm will go even further to maintain security. For example, the Saint Consulting Group’s invoices tend to be deliberately vague. A client who wants to see detailed bills to be certain that the consultants are actually on the job can have a detailed invoice faxed to the CEO to review (and shred if so inclined), while the less-detailed version is e-mailed to the accounts payable clerk. This approach is not intended to imply that the accounts payable clerk can’t be trusted, but does the client know the clerk’s friends or their affiliations? Does the client know whether the clerk’s sister works for the competition? Or is married to the vice president of the opponent? Would the clerk be able to distinguish between an innocent remark about work and disclosure of confidential information? He won’t have to if he’s not told. Why insert a needlessly detailed invoice into the client’s permanent corporate records, where it is discoverable should litigation eventually ensue, when it would be eminently useful to an opposing attorney to bludgeon the CEO on the witness stand?

Security procedures can be extensive, but they should go only as far as the client wants or needs them to go. Faxing materials to the CEO’s home, rather than to the office, is a common safeguard. So is a separate e-mail address through Yahoo, EarthLink, or some other provider outside the corporate network, so that every e-mail to and from the client does not wind up in a permanent corporate file.

There is nothing untoward in such practices; they are a first line of defense against snoops and those who would engage in corporate espionage. A government agency with a right to the information, or a plaintiff’s lawyer engaged in court-sanctioned discovery procedures, could easily secure the information if the need arose. But the world is full of busybodies and troublemakers with axes to grind; these procedures make it a little harder for them.

Defense clients are generally more concerned with confidentiality than are offense clients. They know that a leak at the wrong time can damage the citizen support group’s credibility and may encourage the competitor to launch nuisance litigation. Because of these dangers, defense campaigns are conducted sotto voce, with careful attention to detail. Keeping the identity of a client confidential even from the citizen group, making use of disposable cell phones, driving locally registered rental cars, staying in motels a few towns away, and being judiciously vague about the backgrounds of project managers are useful safeguards against prying reporters who would smell a story and nosy project opponents who would like nothing better than to embarrass the client and derail the project.

A citizen group has members who may not appreciate the consequences of idle chatter; it may include members who are spies for opponents or the client’s competitor. The less confidential information they know, the better. A citizen group also includes people who should not be burdened with information they will have to expose if ever asked under oath. Although the Noerr-Pennington line of legal cases holds that the funding source of project opposition is irrelevant (Chapter 8 explains the legal underpinnings of land use politics defensive tactics in detail), the opponent’s lawyer can still ask the question and require a straight answer. It is best for the client if the answer is “I don’t know.”

For biographical details on P. Michael Saint, Robert J. Flavell and Patrick F. Fox, click here) 

Nimby Wars was released on October 28th, and is available at the following fine booksellers


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