Saturday, October 13, 2007

Oh, The Places You'll Go: The Sunshine Zone

Here's a story of an unnecessarily byzantine, non-specific answer to a direct question.

Let's start at the end, then go to the beginning.

The bottom line is that under Pennsylvania's Sunshine Law (Section 707 b), the ethics board can hold a closed meeting called a "Conference" to educate its members about ethics laws of other cities and how those laws are applied.

What did that take? 39 words, by my computer's count.

Now, let's rewind.

During Friday's ethics board meeting, Chairwoman Sister Patrice Hughes thanked Assistant City Solicitor Kate DeSimone for a memo summarizing Pennylvania's Sunshine Law. That memo indicates that the ethics board can use "Executive Sessions" to exclude the public from their planned educational briefings about how other cities' ethics laws work.

The memo was apparently the city Law Department's synopsis of what the state's Sunshine Law says, and how it applies in this case.

Now, as I understand it, state law only allows government bodies to hold closed-door "Executive Sessions" for six reasons. They are discussions of: personnel matters, labor relations, property purchases, litigation, confidential investigations & deliberations, and academic admission or standing.

After the meeting, I asked Sister Patrice if I could have a copy of the law department's memo, to examine its rationale in this case. She answered that since it was written by DeSimone, she'd feel more comfortable if I asked the memo's author for it instead.

When I did so, DeSimone hesitated, and requested that I not publish the memo if she gave it to me; I responded that publishing things is my job. She said she'd get back to me.

Here's a summary our our e-mail exchange over the next several hours.

• From: "DeSimone, Kate"
Sent: 10/12/2007 12:06 PM AST
To: Bob Mayo
Cc: "Sister Patrice Hughes"
Subject: Sunshine Act synopsis

Hello Bob:

I have spoken to my boss about the advisability of releasing the little memo regarding the provisions of the Sunshine Act, and he has advised against it. Although you are correct that there is nothing in the memo that you cannot get from reading the text of the act itself, our position has to be that this was a favor we did for the Board to help them in understanding this rather complex statute.

Sister, I am sorry that I did not mark the memo “confidential” in order to avoid any confusion.

Kate DeSimone

• From: Bob Mayo
Sent: 10/12/2007 12:16 PM EDT
To: "Kate DeSimone"
Cc: Bob Longo; Roberta Petterson
Subject: Re: Sunshine Act synopsis


Respectfully, since the purpose of the Sunshine Law is "sunshine", i.e. an open view for the public on the operation of government, I would suggest that the interpretation of how an exemption to the Sunshine Law is being applied should not be confidential.

You were acting in an official capacity in advising the board, and members would be adopting an official meeting practice based on that advice.

I ask that the city solicitor and the board members individually reconsider and provide us with a copy.

I'm cc:ing this to my news management, so that they're in the loop on this.


Bob Mayo

• From: "DeSimone, Kate"
Sent: 10/12/2007 12:52 PM AST
To: Bob Mayo
Cc: Bob Longo; Roberta Petterson; "Specter, George"; "Sister Patrice Hughes"
Subject: RE: Sunshine Act synopsis

Dear Bob:

I apologize if I gave any impression that this memo contained an “interpretation” of the Sunshine Act. On the contrary, there is nothing therein that can’t be gained from reading the text of the Act itself.


[In the interest of accuracy, I'm quoting my e-mail's typos and mangled, redundant wording as-is. I can only blame them on my "thumb-typing" in haste on my BlackBerry.]

From: Bob Mayo
Sent: 10/12/2007 01:22 PM EDT
To: "Kate DeSimone"
Cc: Bob Longo; Roberta Petterson; "Specter, George"; "Sister Patrice Hughes"
Subject: Re: Sunshine Act synopsis

I'm headed out on another story at the moment. For the moment, can you tell me (or quote) in a sentence or two which provisions of the sunshine act which allow for executive sessions for education of board members?

Please understand that I'm not saying that there isn't one, I'm doing my job by finding out what it is in this specific case.

If there wasn't some intrepretation involved, why was a memo needed?

Thanks again.


• From: "DeSimone, Kate"
Sent: 10/12/2007 04:33 PM AST
To: Bob Mayo
Subject: RE: Sunshine Act synopsis

Hi Bob:

At one point the act defined an “executive session” as “a meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting” (Section 703), which seems to imply that any closed meeting can qualify as an executive session. Later, however, the term is defined a lot more narrowly as being limited to six specific subject areas (Section 708). There are also some rather inconsequential references to executive sessions in sections 704 and 707, where they are cited as exceptions to the open meeting rule.

Our Board is certainly not alone in using the term executive session as synonymous with a closed meeting generally, but they are aware of the narrower definition in Section 708, and they know anything they do outside of a public meeting has to fall into one of those specific categories or be outside the requirements of a meeting altogether (for instance, no quorum present, no deliberation of agency business).

The real purpose of the memo was to tell them what the Act says, since they need to know what it says, but except for Penny they are not attorneys and are very unlikely to read it on their own. As you know, it is not the most accessible of statutes.


What followed was one more round of e-mails. I noted I was apparently going to have plenty of reading ahead for my coming week of vacation. She wished me well and suggested I drink plenty of water, as the "Sunshine Act" makes for very dry reading. It was a friendly exchange.

Note, however, that the last e-mail quoted above still doesn't directly cite the specific, legally allowable reason for using an "Executive Session" as proposed. My reading of the law is that there is no "Executive Session" exemption that applies here. There is an exemption for closing the doors to the public to hold something called a "Conference"; that's a different thing.

When it comes to the law, words do matter and can bring different consequences.

The law defines a "Conference" as "Any training program or seminar, or any session arranged by State or Federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities." It also says "an agency is authorized to participate in a conference which need not be open to the public. Deliberation of agency business may not occur at a conference." I added the emphasis because "need not be open to the public" suggests that it could be open to the public.

The law defines "Executive Session" as "a meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting". I added the emphasis here because--by definition--the public always "is excluded" from every "Executive Session".

Since we're talking about the "Sunshine Act" --part of Pennsylvania's "Right to Know Act"-- I think these are fair questions to raise.

[ A link to the PA Sunshine Act, bookmarked at a relevant section. ]



Henri Graves said...

It's called attorney-client privilege. The Ethics Board can release the memo if it chooses, but the Board is not required to do so. The Sunshine Act doesn't supercede the usual attorney-client protection.

Mark Rauterkus said...

Good work Bob. Now, to take what you've said and go that 'extra step' (not doing things half way)... IMHO....

This is why we need security cameras in Pittsburgh. We need to point them at the Law Department, the Ethics Hearing Board Members and all the others in city and county government, authorities and employees.

Furthermore, you missed the part in the Sunshine Law that says that there can be executive sessions when talking about ice rinks and practice facilities -- such as with the Pgh Penguins and the new building.

As I told you at the meeting on Friday, "I've seen glaciers move faster than the Ethics Hearing Board."

They are all about bad government in my not so humble opinion.

This also gives us another reason to ask for the head of the city's law department. That guy has got to be terminated. But, I guess Luke did his national search and that's that.

Better yet -- how about if we fire the mayor and start all over.

Who picked whom for the Ethics Hearing Board?

They were very clever -- but -- it could just backfire.

Mark Rauterkus said...

The Ethics Hearing Board thinks it can "supercede" the US Constitution by taking away First Amendment Rights.

Furthermore, the Ethics Hearing Board is not a 'client' of the Law Department. The Ethics Hearing Board does not have a nickel to hire anyone.

If the Ethics Hearing Board works for anyone -- it is for TAXPAYERS.

The protection needs to be for the citizens -- not for the board, not for the government.

Bob Mayo said...


You'll note that I requested in my e-mail that "the board members individually reconsider and provide us with a copy." Sister Hughes did not appear to be opposed to my obtaining a copy of the memo; she simply referred me to the Assistant City Solicitor--as a courtesy to Ms. DeSimone. This is a memo written by a public employee to a public board about how to comply with Pennsylvania's "Right to Know Act".

That hardly seems the stuff of privileged communication.

Bob Mayo said...


I've seen no evidence of any ill intent on the part of the ethics board regarding compliance with the Sunshine Act. Kate DeSimone wrote that she believes "except for Penny they are not attorneys and are very unlikely to read it on their own". I've observed the board members repeatedly express their interest in examining the "best practices" of ethics codes in other communities and at all levels of government.

Grad Student said...

Does any informed citizen of Pittsburgh even trust the ethics board at this point? The whole thing has been a fiasco since the beginning. What kind of ethics board is cloaked in secrecy and runs from reporters? I've lived in several major cities, and I've never seen such a dysfunctional government, at all levels...

Anonymous said...


Is Kate basically saying that every closed-door conference could = an executive session? If so, that's patently wrong and in direct violation of the Sunshine Act. Keep up the good work!

EdHeath said...

I really have a sense that the Ethics Board is not well served by working with the Law Department. I don't know how to get around that, except for them to hire their own lawyer. But it really seems that the Law Department is at least partially invested in rendering opinions supporting the Mayor's position, even as it advises the Ethics Board on the scope of their authority.

Mark Rauterkus said...

The ill intent of the Ethics Hearing Board is visible in even entertaining the fact that next year half of the meetings will be behind closed doors. They put the topic on next months agenda. They talked about it as they talked about putting it on next months agenda.

There is no reason to close the meetings to the public.

We need more ethics -- not less. We get there by having only six meetings a year???

That is ill intent. And, it smells bad.