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

Kate,

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.

Thanks.


Bob Mayo
Reporter
WTAE-TV

• 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.

Kate

• [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.

Bob

• 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.

Kate

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. ]

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