Happy International Plain Language Day! (Tips from a real PhD on how the Queen City Square contract could be improved for transparency)

katherine

cincyopolis is more than one person. Today’s post is contributed by Katherine T. Durack, PhD.

On this day four years ago, President Obama signed Public Law 111-274, the Plain Writing Act of 2010. The purpose of the law was “to improve the effectiveness and accountability of Federal agencies to the public by promoting clear government communication that the public can understand and use.” The law applies to a wide variety of documents of direct interest to members of the public, specifically those that are necessary for obtaining benefits or services for filing taxes, and for complying with regulations. By law, such communications must be written in clear, easy-to-understand, plain language. A handful of states have, since the 1980s, passed their own plain language regulations—California, Connecticut, Florida, Minnesota, and New York variously require that disability insurance and administrative regulations, consumer contracts, insurance policies, health benefits, and consumer transactions use plain language.

But what, exactly, is “plain language”? It may be easiest to understand what “plain language” is not than to describe exactly what plain language is. This passage, which describes who benefits from a sale of Cincinnati’s Queen City Tower, illustrates what plain language is not:

Section 9.1  Lessee’s Option to Terminate and Acquire Fee Title:

The Lessee shall have the option to terminate this Lease (i) at any time on or after October 1, 2015 (or earlier if permitted to do so pursuant to Section 11.1 (d), and (ii) at any time upon a “City Violation of the Building Code Agreement” (defined below), which option shall be exercisable by the Lessee provided that as a condition of such termination, the Lessee shall either: (A) pay to the Lessor the Lease Termination Payment in immediately available funds; or (B) pay to the Lessor the Lease Termination Payment (except for the Bond Prepayment Amount) in immediately available funds and tender “Exchange Bonds” in substitution for the Lease Bonds, as specified in the Lease Bond Indenture and the Lease Bonds.  In the case of a City Violation of the Building Code Agreement, the written notice termination shall include a written certificate by the Lessee that a City Violation of the Building Code Agreement has occurred, with enough specificity (and, if requested by the Lessor, any additional documentation reasonably required) to support that written certification.  Simultaneously with the termination of this Lease and payment of the Lease Termination Payment pursuant to this Section 9.1, the Lessor shall transfer and convey the fee simple interest in the Project to the Lessee (or the Lessee’s designee as stated in writing by the Lessee at the time) in accordance with Section 9.4  In no event shall this Lease be terminated pursuant to this Section 9.1 without the Lessee paying the Lease Termination Payment and the Lessor transferring and conveying the fee simple interest in the Project to the Lessee (or the Lessee’s designee) in accordance with Section 9.4.

If considered solely from the standpoint of plain writing technique, this passage illustrates how legal language can be written in a way that that seems intended to confuse, to obscure and thereby, to conceal. To illustrate how this occurs, I describe three plain writing guidelines this passage violates.

Plain language principle:  Keep it short.

Readers can take in only so much information at a time; one rule of thumb is that sentences should not be longer than 25 words, and should be on average about 15 words in length.  How does the Queen City Square contract language stand up to this guideline?

  • The first sentence in this passage is 122 words.
  • The second sentence is 54 words.
  • The third sentence is 54 words.
  • The last sentence is a mere 46 words.

Plain language principle:  Keep it simple.

When you have complex ideas to communicate, use lists to reveal and organize information. There are several lists embedded in the Queen City Square contract language—you can identify these by the enumerations (i, ii, A, B, etc.).  The problem is that a single sentence—that first one of 122 words—includes not one but two lists. Using indentations and line spacing helps reveal the structure:

spacing

Two actions—using spacing to reveal structure and breaking the passage into two sentences, each of which includes its own list—would make this language easier to understand.

Plain language principle:  Avoid or explain technical terms.

The terminology used in any communication often identifies who the real audience is: gaining a grasp of specialized terminology is how any professional gains access to and demonstrates command of knowledge in his or her field. There is a great deal of technical terminology in the passage primarily identified by use of capital letters: Lease, Lessee, Lessor, Lease Termination Payment, and Fee Title among them.  I would hazard that most adult members of the public have some understanding of the first four of these terms by virtue of having rented an apartment or a storage unit. The usage and meaning of Fee Title is much less common.

According to answers.com—for those of us members of the public who do not live and breathe real estate contracts and development deals—Fee title means

…the greatest possible estate in land, wherein the owner has the right to use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and take its fruits. A fee title represents absolute ownership of land, and therefore the owner may do whatever he or she chooses with the land. 

Now, in all fairness to the Port Authority and those who negotiated this deal, even the federal plain language guidelines exempt real estate transactions dealing with very large amounts of money as well as communications that do not directly affect consumers. But even if such government contracts are exempt from plain language guidelines, surely the principles of transparency and accountability still apply.

Never mind that it took almost six months, multiple public records requests, several phone calls and eventually a very tense meeting with the primary negotiator for the project (carefully observed by the Port Authority’s chief counsel) in order to identify where this information could be found. Never mind that this crucial short passage regarding the lease-purchase option on Queen City Square is tucked on page 33 of a 68-page contract. Never mind that the contract is one of more than 50,000 pages of documents related to Queen City Square. Never mind—apparently—that the public, who provided crucial funding for the project, has a right to know where tax dollars are being spent and how the public—and the developer—will benefit from the public support the developer received.

So what is the answer to the question that started this whole inquiry…  Who receives the profit in the event Queen City Square is sold?

It looks very much like the major direct beneficiary of this development is Western and Southern—but it seems only a lawyer can tell for sure.

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One thought on “Happy International Plain Language Day! (Tips from a real PhD on how the Queen City Square contract could be improved for transparency)

  1. Pingback: Lessons Learned: the TIF vs. abatement fiasco (which maybe wasn’t so bad after all) | cincyopolis

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