Here's my e-mail back to the Pittsburgh Ethics Hearing Board. In light of board chair Sister Patrice Hughes' response to my original message, I'm restating my requests.
What I'm asking for falls into three categories.
• The first is documentation; Assistant City Solicitor Kate DeSimone had provided board members with a memo about the legal basis for holding closed-door meetings under Pennsylvania's Sunshine Law. While the law department could counsel them that the memo is protected by attorney-client privilege, if--for purposes of discussion--that were the case, it doesn't mean board members couldn't waive that privilege in the interest of transparency. As I wrote in this exchange with Assistant Solicitor DeSimone, "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." I've also asked separately for any legal citation that justifies holding executive sessions for reasons other than the six spelled out in the law.
• The second is policy. The Sunshine Law does allow the board to hold a "Conference", which it defines "any training program or seminar...for the sole purpose of providing information to agency members on matters directly related to their official responsibilities". The law says a conference "need not be" open to the public. The wording "need not be" suggests that such a conference _could be_ open to the public. The board clearly could legally exclude the public from its meeting to educate its members about the ethics laws of other cities and how those laws are applied. It also could legally open that conference to the public. As a reporter who covers city government, I'm asking them to choose an open meeting.
• The third is compliance with the law. The Sunshine Law spells out that "the executive session may be held during an open meeting, at the conclusion of an open meeting, or may be announced for a future time. The reason for holding the executive session must be announced at the open meeting occurring immediately prior or subsequent to the executive session." The law also narrowly defines the purposes of excluding the public. (See my e-mail for details.) The ethics board had once discussed holding bi-monthly closed door meetings in executive session. If the board were to hold "umbrella" closed meetings covering a variety of topics, the prospect increases for discussion of matters beyond the narrow scope permitted by the Sunshine Law. That's one reason why adopting the legally-required practice of publicly announcing the specific reason for a narrowly-focused private meeting is important.
From: Bob Mayo
Subject: Re: Sunshine Act
Date: November 17, 2007 7:49:49 AM EST
To: Sister Patrice Hughes, Kathleen Buechel, Rabbi Daniel Schiff, Rev. John Welch, Penny Zacharias
Cc: Kate DeSimone, Bob Longo, Roberta Petterson, Bob Mayo
To Chair Sister Hughes & Members of the Pittsburgh Ethics Hearing Board:
Thanks for getting back to me. It's not clear if your response constitutes yes-or-no answers to my specific requests for action, so I'll recap them here.
In my role as a journalist who covers city government, I am asking that ethics board members:
1) provide a copy of the law department's memo summarizing Pennsylvania's Sunshine Law;
2) not attempt to use "executive sessions" for its educational briefings on other cities' ethics laws;
3) use "conferences" for this purpose and open these conferences to the public;
4) adopt the legally-required practice of announcing the specific reasons for each executive session at a public meeting immediately prior or subsequent to the executive session.
Would you please clarify: are each of these requests granted or denied?
Also, you responded "that information can be shared and discussions can be held [in Executive Sessions], but no decisions can be made during these sessions".
As you know, the Sunshine Act has six specific justifications for holding an "executive session" which, by the law's own definition, "is a meeting from which the public is excluded". (Section 703, Definitions; Section 708 a, 1 through 6, Executive Sessions, Purpose.) They are discussions of: personnel matters, labor relations, property purchases, litigation, confidential investigations & deliberations, and academic admission or standing.
For the sake of clarity, I'll add this yes-or-no question:
5) Is it the board's position that it can use executive sessions to exclude the public from meetings for any reasons other than these six specifically and narrowly defined in the law?
I'll again quote the 2003 publication from the Governor's Center for Local Government Services entitled "Open Meetings/Open Records: The Sunshine Act and the Right to Know Law". It notes on page 9:
"The concept of a meeting where members are simply informed and do not discuss issues ignores the basics of group dynamics. Members are all too likely to ask questions, pose possible responses by the municipal government and debate various courses of action. The court decisions cited above do not provide any support to the theory that so-called "informational sessions" are anywhere authorized as closed meetings by the Sunshine Law."
The same publication notes on page 6:
"The reason for holding an executive session must be announced at a public meeting occurring immediately prior or subsequent to the executive session."
"The appellate court stated even though it is in the public interest that certain matters be discussed in private, the public has a right to know what matter is being addressed in private sessions. The reason stated by the agency must be specific, indicating a real, discrete matter that is best addressed in private."
6) If the answer to question 5 is yes, will you please provide specific citations which contradict the guidance in the Governor's Center publication?
I look forward to your responses.