Reader Comments on Oversight & Sunshine

My Sunshine Law conversations with the Oversight Board is bringing some reactions in the comments section at the end of the post.

Here's recap:

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Mark Rauterkus said...

Bob, you're on holiday.

You know, bloggers never take a real holiday, unlike those who are left with jobs in the MSM.

g u i l t t r i p l o o m s

Have a good day. No worries. Be happy.

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EdHeath said...

I don't think you "proved" that the ICA is remiss in its notification schedule and process, in the sense that a judge would take action based on what you say here. But I think when a major reporter for major news outlet in town (and I feel safe characterizing you as that) feels there is a problem, the ICA ought do to do more than try to (defensively) explain your concerns away.

The ICA might well be the key to the city's future. The only way I can see Pittsburgh emerging from its twin crushing burdens of debt and pension obligations is through Act 47, specifically a second, more far reaching five year plan. This is especially true since the Nordenberg report (the report on consolidation) was in no way aggressive in its view on county wide consolidation. Perhaps that just reflects the reality of the situation, but it does nothing to help the City with its financial picture. So we need to know and have input into our financial future in the since of knowing when the ICA meetings. It may be inconvenient for them, but it is our future.

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Bob Mayo said...

Thanks, Ed. I wouldn't say my anecdotes and e-mails prove anything; they're just snapshots of my experiences dealing with the ICA over time. They're the sort of things that don't make it into a TV news story, but they do provide a window on how the ICA deals with the Sunshine Law. Heck, I have the ICA website bookmarked and check it periodically. Most people don't. As with my blogging about my exchanges with the city's Ethics Hearing Board, this is about spotlighting the spirit as well as the letter of the law. These aren't difficult laws and requests to comply with, but the responses to them can be telling.

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Bram Reichbaum said...

I just noticed this post for some reason; I thought the Christmas post immediate followed the billboard post. Great stuff.

If the citizens of Pittsburgh are dissatisfied with the conduct of their ICA, I wonder who they are supposed to take it out on?

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Bob Mayo said...

Bram,

That's the thing about news stories -- and blog posts -- heading into holidays or weekends. Fewer people notice them.

In the past week there have been two examples.

The Oversight Board meeting that was called without public notice became a item in the newspapers on Dec. 24th -- Christmas Eve. The Zoning Board's long-in-coming ruling on the electronic billboard? Word of its release came around 4:30 Friday afternoon, heading into the weekend before Christmas.

Initially, I was told I only had until 5:15 to pick up the billboard decision at the city's zoning counter. I joked that I hoped there wouldn't be a problem with the counter staying open for me past 4:15. In the end, they were able to fax a copy to our newsroom.

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UPDATE 2: Pittsburgh's Emergency Overseers

Pittsburgh's state-appointed Oversight Board is holding an emergency meeting at 9 AM. Here's an excerpt from my e-mail to the board's attorney, chair, and executive director:

A few quick questions:

By what legal definition is the Tuesday, December 23rd, 2008 meeting of the ICA an "emergency"?

How does it differ from a regular meeting?

How much advance legal notice of your public meetings is required if they are not labeled an "emergency"?

What percentage of ICA meetings have been labeled an "emergency" or "special" over the past three years, and for what reasons?

Update 1:

From Pennsylvania's Sunshine Law:


Section 703. Definitions

"Emergency meeting." A meeting called for the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.

Section 709. Public notice

(a) Meetings. An agency shall give public notice of its first regular meeting of each calendar or fiscal year not less than three days in advance of the meeting and shall give public notice of the schedule of its remaining regular meetings. An agency shall give public notice of each special meeting or each rescheduled regular or special meeting at least 24 hours in advance of the time of the convening of the meeting specified in the notice. Public notice is not required in the case of an emergency meeting or a conference.

In my experience with the ICA (Intergovernmental Cooperation Authority), notice of its public meetings comes late or not at all. The most memorable instance was when it issued a faxed news release in the afternoon, after a morning meeting had already occurred. I believe that on at least one occasion, a public notice on the ICA's website appeared to be dated earlier than its actual posting online. The ICA contracted a media consultant to help handle release of its Fire Bureau study, but -- after three years of requests -- it still hasn't been able to provide consistent notice of its public meetings.

Update 2:

An e-mail exchange with Oversight Board Chair Barbara McNees:

McNees: "Mr. Mahone [ICA's solicitor] can explain the language. This is a year end to clear up approvals. Mostly administrative. Should only take 10 minutes at most. Henry [Sciortino, ICA Executive Director] was to post agenda on web site."

Mayo: "I did some quick research myself, and the material [I've quoted from the Sunshine Law] may prove informative. As a reporter, what I'm asking for is that the ICA honor the spirit of the Sunshine Law.

Now, let's check Post-Gazette reporter Rich Lord's story on this morning's meeting, "City, oversight board near agreement on debt payments":

"The city of Pittsburgh and its state-picked fiscal overseers are close to finishing an agreement on paying off future municipal debt, officials from the Intergovernmental Cooperation Authority said at a hastily called meeting today."

So, as it turned out, this was a newsworthy meeting and not simply "clean up". Continuing from the PG:

"Councilman Patrick Dowd, who has asked repeatedly for the terms of the agreement, attended the meeting and wasn't satisfied with the level of detail provided. He said there was no guarantee that setting aside $45.3 million now would shave $51 million off of future city debt payments, as called for in the city's five-year plan."

Perhaps if the ICA had not treated the "mostly administrative" meeting as "an emergency", members of the general public and representatives of city retirees and employees would have attended to offer public comment as well.


In a followup e-mail exchange, Oversight Board Chair McNees responded to my request that the ICA honor the spirit of the Sunshine Law:

McNees: "I agree. Reed Smith was supposed to have posted in normal manner. Unfortunatley [An attorney for the ICA] had a sudden death in the family and notice dropped through the cracks. We needed to get year end meeting in and most people not available next week."

Mayo: "I'm sorry to hear about [the attorney's] loss. My concern reflects the cumulative conduct of the ICA on Sunshine matters over the course of three years, however, and not simply the current instance."

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Next:

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From: Mahone, Glenn R.
Sent: Tuesday, December 23, 2008 3:33 PM

Subject: RE: ICA EMERGENCY MEETING

Bob:

Please pardon my delay in getting back to you with answers to your inquiry.

Today's meeting was not an "emergency", as defined under the Sunshine Act, and it should not have been so noticed. I understand that my Partner [...] prepared a notice of special meeting and sent the notice for newspaper publication in last Friday's paper; however, the notice was not published as requested. We were so notified on Monday. [...] is out today due to a death in his immediate family, and I do not have all of the details. As you may know, the Sunshine Act requires, among other things, no less than three day's notice of the first meeting in each calendar or fiscal year. Special meetings require 24 hours notice, and emergency meetings, as you might expect, require no notice.

In the absence of sufficient time to notice the 12/23 meeting as a "special meeting" following the failed publication, and in the spirit of the Sunshine Act, we emailed the notice to representatives of the major media in the area.

See the Sunshine Act for more details on Regular, Special and Emergency meetings. Most Authority meetings are regular meetings. The Authority has held special meetings, but I do not recall any emergency meetings. The minutes of each meeting are posted on the website, including meeting notices. Both will indicate whether the meeting was regular, special, or emergency.

We can return to courtesy emails of meeting notices to major media.

Let me know if you need additional information.


Glenn R. Mahone
Reed Smith LLP

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My response:

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Mr. Mahone,

As you'll see in reviewing my e-mail exchanges with Chair McNees, I've already quoted to her the same passages of the Sunshine Law that you've quoted to me.

I'm glad to hear that there is no emergency ("a real or potential emergency involving a clear and present danger to life or property") as defined by the law.

I've lost exact count of the many times over the past three years that I've complained to Mr. Sciortino about the public notice practices of the ICA.

I note that the ICA e-mail notice sent to some -- but not all -- local news organizations includes the city government beat reporters for the PG and the Trib but excludes me, despite my numerous requests as our station's reporter covering city government. It was also sent on less that the 24 hours notice you cite in the law.

While a copy went to the assignment desk at WTAE, no fewer than four staffers at the Tribune-Review were included in your e-mailing.

Also missing from the list are KQV Radio, which covers city government, The Associated Press, The New Pittsburgh Courier, The Pittsburgh Business Times, Pittsburgh City Paper, KDKA Radio and WDUQ Radio.

(In updating your media e-mail list, you should note that WPGH TV's news department ceased operations a few years ago. Also note that the city hall reporter for the Trib is JBoren@tribweb.com , not jboreu@tribweb.com . )

In quoting the Sunshine Act, you omitted the passage which says the ICA " shall give public notice of the schedule of its remaining regular meetings" when it "give[s] public notice of its first regular meeting of each calendar or fiscal year, not less than three days in advance of the meeting". I don't recall the ICA ever giving public notice of the schedule of its remaining regular meetings at the start of the year. Does it intend to begin doing so in 2009?


Bob Mayo

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This final exchange of e-mails with Chair McNeees -- from more than a year ago -- illustrates my past requests to the ICA. It was preceded and followed by many similar communications with Executive Director Sciortino:


From: Bob Mayo
Sent: Thursday, August 16, 2007 10:26 AM
To: Barbara McNees
Subject: Next ICA Board Meeting

Dear Ms McNees,

Is there any word yet on when the ICA board will hold its next meeting?
I'd submitted a question via the ICA's "contact us" web form a couple of days ago, but hadn't heard back.
Who can provide information about [this. How] far in advance will the ICA be giving notice to the general public and to the media, and by what means?


Thanks for your help.

----- Original Message -----
From: Barbara McNees
Sent: 08/20/2007 09:09 AM AST
To: Bob Mayo
Subject: RE: Next ICA Board Meeting

Henry Scrotino has been on vacation. Sorry for the delay. We have not scheduled a meeting yet for the Fall. I will make sure we give plenty of advance notice.

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PG: "City Ethics Panel Skirts Law With Private Meeting"

From today's Post-Gazette:

The task of the city's ethics board is to "advance transparency and accountability" in city government, according to a rewrite the board approved yesterday of city rules on gifts, tickets and charitable events.

That being the case, it was ironic that the board met behind closed doors to discuss the new rules.

..and...

Sister Patrice Hughes, the board's chair, said the five board members were "very careful" not to debate the regulations, which they were given in advance. "All it provided was clarity. There were no decisions made" in private, she said.

City Solicitor George Specter, who also sat in on the closed-door session, said the board members have been getting "input from various aspects of the city" on the regulations and were merely "discussing their thoughts" about them.

Those explanations didn't pass muster with legal experts at the Pennsylvania Newspaper Association, who monitor open meetings and open records matters statewide.

It was 13 months ago this week that I began my persistent exchanges with Ethics Board members and the City Solicitor's office over this:

Pittsburgh's Ethics Board is still refusing to release its secret memo from the City Law Department. The secret? The Law Department's advice on how to obey Pennsylvania's Sunshine Act--the law mandating that meetings be open to the public.

You can track the serpentine tale by clicking this link. Tracing the entries backward or forward, I think it will give you some insights into the history there.

At the time, the most interest the PG could muster in the Sunshine Act as interpreted by the City Solicitor's office was in this satirical turn.

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Oh, The Things You Can Count: My Ethics Board Request

56 days after my third e-mail request, and

92 days after I first asked in person,

Pittsburgh's Ethics Board is still refusing to release its secret memo from the City Law Department. The secret? The Law Department's advice on how to obey Pennsylvania's Sunshine Act--the law mandating that meetings be open to the public.

My fourth request was answered within two hours on Friday--not by the Ethics Board itself--but by City Solicitor George Specter.




You can read Specter's letter below, in a separate post. Soon, I'll be blogging a closer look at the elements of the Law Department's response...and how it relates to the issues raised in my requests.

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Ethics Board Request: The City Solicitor Answers

City Solicitor George Specter

Here's the City Solicitor's response to my requests to the Ethics Board.

January 11, 2008

Bob Mayo
WTAE TV
400 Ardmore Boulevard
Pittsburgh, PA

Dear Mr. Mayo:


Thank you for your recent inquiry to Sister Patrice Hughes and the members of the Pittsburgh Ethics Board regarding the Board’s compliance with the Sunshine Act, 65 Pa.C.S. §701 et seq. However, in the future, I would ask that you direct all further inquiries in hard copy to my attention.
Please rest assured that the Board has received instruction about the purview of the Act from the City’s Law Department and is aware of the restrictions it imposes upon their activities. In response to specific questions to have posed, we respond as follows:

1. The memo authored by the law department summarizing the law is not subject to disclosure under Pennsylvania’s Right to Know Act, 65 P.S.
§66.1 et seq.

2. The Board intends to comply with the mandate of the Sunshine Act which requires open meetings in all cases where there is a quorum present, and where official action is taken or agency business deliberated. 65 P.S. §703. Whether the Board chooses to hold open meetings in situations not covered by this provision, for example when there is no quorum present, is a matter for their discretion.

3. There may be times when a meeting which otherwise meets the criteria of Section 703 may fall within one of the six enumerated exceptions for an executive session. In these cases, as you note, the Board is obligated to give a brief recap of the matters discussed in the executive session. At all future meetings which are preceded by a closed session, the Board will honor this practice.

4. We agree that mere briefings on other cities’ ethics codes would not fall within one of the six stated reasons for an executive session. However, as such a briefing would not involve official action or deliberation on agency business, it is outside the scope of Section 703, and no public meeting is required.

Your letter appears to suggest that the Board may never meet or communicate outside of an open meeting. We do not interpret the Sunshine Act in so draconian a manner, and the clear language of the statute supports our position.

Please be assured that compliance with the Sunshine Act is a priority for the Ethics Hearing Board.


Sincerely,


George R. Specter

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Ethics Board, The Lost Letter

You may recall two past posts (here and here) about my requests to the members of the ethics board. Their meeting scheduled this morning prompted me to send them this e-mail message this afternoon:

From: Bob Mayo
Sent: 01/11/2008 02:22 PM EST

To: Chair Sister Hughes & Members of The Pittsburgh Ethics Hearing Board

It's been nearly two months since I sent the e-mail quoted below. Can you please answer the questions posed in that message?

Thank you.

Bob Mayo
Reporter
WTAE-TV

Tomorrow, I'll post the two-months-in-coming answer that I got within less than two hours. Can you guess who responded? (Hint: it wasn't a member of the ethics board.)


For those of you who didn't read my last e-mail to them, I'll recap it below.

Meanwhile, Jeremy Boren of the Trib reports that a member of the Pittsburgh Ethics Hearing Board has resigned.

Apple "Pages" Icon

First posted November 19, 2007:

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."

...and...

"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.


Thanks again.



Bob Mayo
Reporter
WTAE-TV

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Requests Redux For Ethics Board

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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."

...and...

"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.


Thanks again.



Bob Mayo
Reporter
WTAE-TV

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Ethics Board Response

Sister Hughes, chairing an Ethics Board meeting.

You may recall my recent requests to Pittsburgh's Ethics Hearing Board.

Here's a response from the panel's chair, Sister Patrice Hughes.
On Monday, I'll be sharing with you my message back to her.

From: Sister Patrice Hughes
Sent: 11/13/2007 05:58 AM PST
To: Bob Mayo
Cc: Kathleen Buechel, Kate DeSimone [Blog note: DeSimone is an Assistant City Solicitor.], Rev. John Welch, Rabbi Daniel Schiff, Penny Zacharias
Subject: Sunshine Act


On behalf of the Ethics Hearing Board, I thank you for your prodding us to examine carefully the PA Sunshine Act as it refers to Executive Sessions. We are now very aware that information can be shared and discussions can be held, but no decisions can be made during these sessions. As ethical persons, we shall conform to the law.

Let me also thank you for the coverage that you have given to our meetings. You are keeping the public informed and adding to our credibility.


Sister Patrice Hughes

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My Requests To The Ethics Board

[The following e-mail was first sent on October 14, 2007. It was my follow-up to the story described in this blog post one day earlier.]

• From: Bob Mayo
Subject: Requests To The Ethics Board
Date: October 14, 2007 6:47:32 PM EDT
To: Sister Patrice Hughes
Cc: Bob Longo, Roberta Peterson, Bob Mayo

Sister Patrice Hughes
Chairwoman
Pittsburgh Ethics Hearing Board


Dear Sister Patrice,


I'm writing to you in my role as a journalist who covers city government. This e-mail concerns the Pittsburgh Ethics Hearing Board proposal to hold bi-monthly closed-door "Executive Sessions". Among the board's stated uses of these sessions would be to educate its members about the ethics laws of other cities and how those laws are applied. At Friday's meeting, you noted that Assistant City Solicitor Kate DeSimone had provided board members with a memo which serves as the legal basis for these closed-door meetings.

The city law department refused to provide me with a copy of that memo, which outlines its synopsis of the Sunshine Act, so I did some research on my own.

Here's my understanding of the law.

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.) None of them apply to the educational and informational meetings the board is considering.

The Sunshine Act does provide for a "Conference" meeting of the board, which it says "need not be" open to the public. (Section 707 b, Exceptions, Conference. Section 703, Definitions. ) The wording "need not be" suggests that such a conference _could be_ open to the public. As a journalist who covers your meetings, I formally request that you do open the meetings, and I request that you forward this e-mail to your fellow board members for their consideration.

As you know, Kate DeSimone says that her boss "advised against" releasing the memo in question. 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.

The assistant city solicitor was 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 board members individually reconsider and provide us with a copy.

I also request that the board adopt the practice required by law: announce at every open meeting--immediately prior or subsequent to an executive session--the specific reasons that the public was excluded.


The Sunshine Act, section 708 b (Executive Sessions, Procedure) states:

"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*. If the executive session is not announced for a future specific time, members of the agency shall be notified 24 hours in advance of the time of the convening of the meeting specifying the date, time, location and purpose of the executive session."

A 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" 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."

...and...

"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."

The Governor's Center publication is available online at this link:

http://www.penntrain.net/NewFiles/Boards/SunshineAct.pdf


Section 703 of the Sunshine Act 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". The same section defines 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".


To recap, I am requesting that the ethics board:

-provide a copy of the law department's memo;
-not attempt to use "executive sessions" for its educational briefings on other cities' ethics laws;
-use "conferences" for this purpose and open these conferences to the public;
-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.

I also ask that you please forward this e-mail to your colleagues on the Pittsburgh Ethics Hearing Board.


Finally, here's a link to a post on my blog, in which I discuss my difficulties in getting a specific citation of the law from the law department. There's a link to an online copy of the Sunshine Act at the end of the blog post.

[Link]

Thanks for your time and attention to these concerns.


Sincerely,


Bob Mayo
Reporter
WTAE-TV




This next e-mail was sent three days later.

• From: Bob Mayo
Subject: Requests To The Ethics Board
Date: October 17, 2007 4:08:14 PM EDT
To: Sister Patrice Hughes, Kathleen Buechel, Rabbi Daniel Schiff, Rev. John Welch, Penny Zacharias
Cc: Bob Longo, Roberta Peterson, Bob Mayo




Dear Ethics Board Members,

The e-mail below [Blog note: I'm referring here to the October 14th e-mail] was originally sent to Sister Patrice on Sunday. I've since learned that she is out of town for a few weeks, so I'm passing this along directly to you as well. I didn't want too much time to pass before your next meeting without giving you the opportunity to review it.

If it appears that I've used an incorrect e-mail for any of the board members, please let me know.

I look forward to your feedback.

Thanks.


Bob Mayo
Reporter
WTAE-TV

That evening, I received this response from an ethics board member.

From: Rabbi Daniel Schiff
Subject: RE: Requests To The Ethics Board
Date: October 17, 2007 9:38:21 PM EDT
To: Bob Mayo, Sister Patrice Hughes, Kathleen Buechel, Rabbi Daniel Schiff, Rev. John Welch, Penny Zacharias
Cc: Bob Longo, Roberta Peterson, Bob Mayo

Dear Bob:

I am sure that I speak for all on the Ethics Hearing Board when I thank you for your keen attention to this matter and for your exhaustive research. I know that we will want to consider your points carefully.

Please be aware that Sister Patrice, our chair, is currently in Israel. Kathy Buechel, our Vice Chair is also out of town for the next week. I believe that Penny may also be travelling.

Consequently, you should not expect any response to your email within the next week to ten days. After that, we will have to deliberate on the questions you have raised, and that might not allow us to respond until after the next meeting.

I just wanted you to be aware of the movements of my colleagues, so that you do not interpret any failure to respond in a timely fashion as a lack of concern about the issues raised. As I indicated - in public - at the last meeting, we certainly desire to maximize public access to the Ethics Hearing Board and its deliberations.

Best,

Rabbi Danny Schiff

Earlier this week I spoke by phone with Sister Patrice Hughes, who is now back in town. She notes that the next meeting of the Pittsburgh Ethics Hearing Board is scheduled for Friday, November 9th.

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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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Reminder: You're Invited!

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[UPDATE: Our event will be in the Lower Lounge of the William Pitt Union, off of the Main Floor lobby. If you enter from the 5th Avenue side of the William Pitt Union, walk in towards the center of the building and you will find the Lower Lounge atrium is to your left.]


This is a reminder that you're invited to join us for a special event Saturday afternoon.

If you're coming, please note the traffic advisory at the bottom of this post.

We think you'll find the event interesting, whether you work in the news media or you're someone who wants to learn more about your rights as a Pennsylvania citizen to access public records.

It's a Forum on Open Government & Pennsylvania Open Records Law Workshop on September 15, from 1 to 4 p.m. in the William Pitt Student Union on Pitt's Oakland campus. The event is co-sponsored by the Pittsburgh Chapter of the Society of Professional Journalists and the Pennsylvania Freedom of Information Coalition.

The event is free and you don't have to pre-register, but please RSVP if you can.

You can learn more about it by checking out Pittsburgh SPJ's website, and using the "click here for details" link in the top banner. If there are updates to the program, we'll provide them there. The Pennsylvania Freedom of Information Coalition's (PaFOIC) website is a great place for exploring the subject.


Thanks.


Please note the likelihood of traffic delays due to work on the Parkway East.
I'm providing links below to a newspaper article on the subject.


Parkway East will be down to 1 lane each way - Pittsburgh Tribune-Review


The following detour suggestion is from a PennDOT website:

Ramp Closures at Bates Street

• I-376 WestBound Off Ramp to SR 885 North (3B)
Suggested Detour:
- Take Exit 1C (Grant St)
- Make right onto Blvd of Allies (SR 885 North)
- Can access both SR 885 and Second Ave.

• I-376 EastBound On Ramp to SR 885
Suggested Detour:
- Take Second Ave. west to the Blvd. of the Allies
- Access I-376 EB from Blvd. of the Allies

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Invitation To Open Up?

The above image is from the website of PassOpenRecords.org, which describes itself as "A Movement to Lift the Lid on Pennsylvania Government".

It's a good site to learn more about the topic of our free special event this Saturday. Did I mention that you're invited?

I also recommend checking out OpenRecordsPA.com to learn more on the issues.



Here are some good columns on the topic by:

the PG's TechMan,

the Trib's Dimitri,

and the Trib's Brad Bumsted.

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"Right To Know": An Editorial Sampling

Looking ahead to this Saturday's free Forum on Open Government and Open Records Workshop, here is a sampling of editorials on the topics from the Trib, PG, and other sources.


Public test / Pennsylvanians still struggle for the right to know
May 27, 2005

You need better access to public records
December 6, 2006


Open season: The governor wants to expand the right to know
March 11, 2007


Editorial: Let the sun shine / Pennsylvanians still have problems with records
March 14, 2006


Transparent government: Opening its records
April 26, 2007


Newspaper group pushes for broader open records law
April 29, 2007



The right to know: Make it real
June 12, 2007


Burden of proof: A key change of heart may pry open public records
June 14, 2007



Open access to public records allows citizens to be informed
August 10, 2007



Open records: One step forward, one step back
August 10, 2007


Some bite, please
August 14, 2007


Open records law: Accountability at last
August 16, 2007


Join effort to defend 'right to know'
September 2, 2007

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Oh, The Places You'll Go: The Reporter-Free Zone

Follow along?

Out a restricted access side-door, down a private corridor, out an electronically-locked back door, down a less-used elevator, across a long lobby, immediately back onto another elevator, and back upstairs again.

That's the circuitous path the Pittsburgh Ethics Hearing Board nominee took out of city council chamber, thanks to an aide to the mayor and a city law department lawyer.

What happened with Ethics Board Nominee Penny Zacharias after her questioning by council became much more interesting than her appearance itself. ( She was welcomed with polite, brief, encouraging comments by council members.) Elaine Effort of KQV and I were the only reporters covering her appearance, and I was there without a photographer. We were going to introduce ourselves and ask the nominee a few basic questions.

Now, the unexpected intrigue.




Instead of walking out of council chamber's public door, Mayor Ravenstahl's Manager of Policy Gabe Mazefsky and Assistant City Solicitor Kate DiSimone led Penny Zacharias out through a private side-door to the city clerk's office. Elaine Effort and I left council chamber by the main door; from the hall, we could see the trio standing behind council's reception area. We approached. They retreated down the private council hallway.

I asked a city clerk official if we could speak with Zacharias, and she told us they were apparently meeting. Three minutes later, she told us that they were gone.

Elaine and I headed for the City-County Building lobby, checking out the exits on the Ross Street side and Grant Street side. I phoned mayor's aide Mazefsky, who told me the nominee had left. At that point, Elaine called to me. She'd spotted Zacharias and DiSimone. The pair had gotten off an elevator on the opposite side of the building from city council, near Ross Street. They were standing around a corner next to the elevator, away from wider view.

Remember, I don't have a photographer, just my microcassette. Elaine Effort approached Zacharias with her KQV microphone and audio recorder to ask a few questions, but Zacharias refused and started walking away.

Elaine pointed her microphone and began recording, and I clicked on my microcassette. Zacharias and the assistant solicitor kept walking--so we did too, recording as we went. The audio on my cassette is hard to hear because of the lobby's accoustics, but here's what I can make out:

Effort: "Why can't you answer just a few-- a simple question?"

Nominee Zacharias: "I'm not answering (unintelligible)."

Mayo: "Would you be willing to talk to us about how you came to serve on the board? Had you sought out a position, or were you nominated or invited?"

Effort: "It's a public board..."

Solicitor DiSimone: "She was nominated by the mayor."

Mayo: "Right. So the question was: was she recruited for the position? Did she volunteer?"

Effort: "How did it come to you? Why are you uncomfortable talking about a public board that people are interested in seeing reconvened? Why is it a problem? It's a public board."

Nominee Zacharias (not breaking stride): "That's correct, and I'm very excited to serve on it, and I'm looking forward to it."

Mayo: "Would you be willing to stop walking and chat with us, and answer a few basic background biograph(ic)al questions?"

( At this point, Zacharias and the assistant city solicitor get back onto another elevator--this one on the opposite [i.e. Grant Street] side of the City-County Building. I hold the elevator door open and Elaine joins me in doing so.)

Solicitor DiSimone: "I'm going to show Miss Zacharias where our meeting is going to be on Friday."

Mayo: "You are (who); I'm sorry?"

Solicitor DiSimone: "My name is Kate DiSimone, I'm with the city law department and will be meeting this Friday..."

Mayo: "Do you know what time and the location of the meeting?"

Solicitor DiSimone: "The meeting is scheduled for 10 o'clock. I'm not sure of the location yet." ( Editor's note: see two answers earlier, above.)

Mayo: Okay, and under the Sunshine Act, it will be open and we'll be able to attend, correct?

Solicitor DiSimone: "We're not sure if it's going to be a business meeting yet, based on the fact that only three members have RSVP'ed to us so far, so..."

Mayo: "Nonetheless, you're covered by the Sunshine Act. You can't, unless..."

Solicitor DiSimone: "We are covered by the Sunshine Act, and certainly it's an Ethics Board meeting; we're not interested in hiding...from the media or from publicity. But one of the first orders of business will be for the board to elect a chairman, and the members really don't know each other very well yet. So perhaps the first order of business... well, not business, but... The first thing for them to do is get to know each other a little bit and decide how to move forward on the chairmanship."

Mayo: "What members are available for the meeting?"

Solicitor DiSimone: "We have Penny, we have Sister Patrice Hughes, and I believe Kathy Buechel."

Mayo: "Okay, and I guess she (Zacharias) won't be confirmed by then, so they (council) won't vote until next week."

Solicitor DiSimone: "No, they will not vote next week, but judging from the tenor of the council meeting today, I don't think there's going to be any problem."

Mayo: "It will be a get-acquainted session."

Solicitor DiSimone: "I believe so."

Mayo (to Zacharias): "And again, why were you declining to just stand still and talk to us...and why'd you duck out the back door?"

Nominee Zacharias: "I was in a meeting, actually after the meeting. I was getting some materials that were mentioned at the meeting. Nothing to hide. Just going on with Miss DiSimone right now."

Mayo & Effort: "Okay, thank you. Thank you." ( The elevator doors closed. )


( Note: while Mazefsky said Zacharias had left, she had actually walked halfway around the City-County Building's fifth floor, rode an elevator down to the first floor, walked across the lobby to the side where she began, and then rode an elevator back up again. Some members of the general public must do that to get to areas on floors divided by locked doors and restricted access. With her escort, however, it doesn't appear the nominee had any trouble passing through restricted areas.)

I'm recounting all of this here for a few reasons. For one, it's a window into what reporters sometimes face in gathering the most simple information from public officials. For another, it shows a reason why I'm so interested in the slow-to-revive ethics board. The most simple answers and access somehow become complicated and difficult-to-get when covering this story. It's the sort of thing that naturally gets a reporter's attention.

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PA Sunshine: Videotaping Public Meetings

A Look At Pennsylvania’s Sunshine Law

What does Pennsylvania law say about someone videotaping a meeting of a public body?

A thank you to Mark Rauterkus for calling attention in this post to an attempt by the chair of the City Planning Commission to block his use of a video camera. It prompted me to do some checking online and in person.

Here's what I found:

From the minutes of the January 23, 2007 meeting of Pittsburgh's Planning Commission:

" (Chairwoman) Ms. Watson advised the people in the audience that video taping or recording is not permitted at this meeting and requested that the person video taping please stop."


From the agenda for the meeting this afternoon:

“PLANNING COMMISSION AGENDA, March 6, 2007, 2:00 p.m.

E. Director’s Report

...Staff Recommendation on Video Taping...”

I wasn’t able to attend the meeting. Earlier in the day, however, City Planning Director Patrick Ford assured me that the staff recommendation was not to ban videotaping, but to establish a written policy. He promised to e-mail that recommendation to me.

Some other background:

A 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" notes:

“Recording Devices
The Sunshine Act allows persons attending public meetings to record the proceedings with recording devices.

This right extends to the use of videotaping equipment. (1) Public agencies are permitted to adopt reasonable rules governing the use of recording devices.

Persons who attend and verbally participate in public meetings must expect to have their statements recorded. (2)

Since zoning hearing board hearings are public meetings under the terms of the Sunshine Act, any citizen has a right to tape record the session.

Individuals speaking at the hearing must expect to have their statements
recorded. They can have no expectation of privacy which would afford them protection under the Federal Wire Tap Act.

References
1. Hain v. Board of School Directors of Reading School District, 641 A.2d 661, 163 Pa.Cmwlth. 479, 1994.
2. Harman v. Wetzel, 766 F.Supp. 271, E.D. Pa., 1991."

The PA Sunshine Act itself says:

"Section 711. Use of equipment during meetings
(a) Recording devices. Except as provided in subsection (b), a person attending a meeting of an agency shall have the right to use recording devices to record all the proceedings. Nothing in this section shall prohibit the agency from adopting and enforcing reasonable rules for their use under section 710 (relating to rules and regulations for conduct of meetings)."

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