The Sunshine Law & City Council's New Year's Eve Veto Override Attempt

Okay, I think I've solved this.

• There's nothing in the City's Home Rule Charter that bans council from holding a meeting on less than 24 hours notice. You can check the pdf file here.

• There is something in the Rules of Council (incorporated into the City Code) that says the city clerk should give council members (not the public) at least 24 hours written notice of a special meeting.

• That 24 hour notice requirement can be waived by a vote of 6 out of 9 council members.


...BUT...


• A special meeting of City Council called with less than 24 hours public notice would violate Pennsylvania's Sunshine Law.


Here's the quote. The PA Sunshine Law says:

" An agency shall give public notice of each special meeting"..."at least 24 hours in advance of the time of the convening of the meeting specified in the notice".

Section 709 adds that a "Public notice is not required in the case of an emergency meeting" -- but it strictly defines an emergency as:

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

So, hypothetically, if Council had mustered the six votes, first to hold the meeting on short notice and then to override Mayor Ravenstahl's New Year's Eve veto, what could have happened?

The Sunshine Law says a legal challenge to the meeting could be filed within 30 days. If a judge ruled the meeting broke the Sunshine Law, he or she would have the option of invalidating any action taken at that special meeting. Note the passage uses the words "may" and "discretion". It's not an automatic loss.

"Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any or all official action taken at the meeting shall be invalid. "

(That's in Section 713, titled "Business transacted at unauthorized meeting void". )


What's the punishment the council members involved would have faced? A hundred dollar fine:

Section 714. Penalty
"Any member of any agency who participates in a meeting with the intent and purpose by that member of violating this chapter commits a summary offense and shall, upon conviction, be sentenced to pay a fine not exceeding $100 plus costs of prosecution."

[Update: Chris Potter also fact-checks these topics in a comment here and in his City Paper blog posts .]

A couple of open questions:

1) Are there any previous cases anywhere in which legislative bodies were stymied from taking override votes because of the timing of vetoes?

2) Does anyone see anything in the law or in court rulings that addresses the legality of a veto or an override vote in a case like this? Let me know.


Below are some document links, if you want to check them out.

• City Home Rule Charter

• Pittsburgh's City Code

• Rules of City Council

"The Clerk shall give written notice to the members of any special meeting not less than twenty-four hours previous to such meeting."

See Article V: Legislative, Chapter 151: Council, § 151.01 Regular And Special Meetings, , section (c).

"No rule shall be suspended except by an affirmative vote of two-thirds of the members elected and such vote shall be taken without debate."

See Rule VIII h.

• Pennsylvania's Sunshine Law

See Sections 709, 713 714.

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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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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

Apple "Pages" Icon

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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"Ain't No Sunshine"

From the Society of Professional Journalists. ( H/T to PassOpenRecords.Org . )

For Immediate Release:


SPJ National President Clint Brewer and National Freedom of Information Chairman David Cuillier sent a letter Wednesday to Pennsylvania lawmakers to oppose amendments to the state's open records law (H.B. 443) currently before the legislature.

If passed with the amendments, the bill could make Pennsylvania one of the most secret states in the nation. Below is the text of the letter:

Oct. 24, 2007


Hon. Josh Shapiro
105B East Wing
PO Box 202153
Harrisburg, PA 17120-2153


Dear Hon. Shapiro:

The Society of Professional Journalists, the largest association of working journalists representing news media outlets, college student journalists and journalism educators, writes to voice its strong opposition to the amendments added to the open records bill (HB 443) and urge you to send the measure back to committee for discussion and reconsideration, or vote it down outright. The bill as amended, ironically, would make Pennsylvania one of the most secret states, if not the most secret state, in the nation.

We support several provisions in the bill, such as putting the burden on the government to prove why a document should be kept secret, and allowing the requestor to choose the format of the record if it is available in print or electronically. Also, some of the exemptions are acceptable, such as for open investigations and medical records. However, we find the bill lacking and deviant from most other states in several ways:

First, the bill exempts far too much material that is routinely provided in all but a handful of other states, including e-mail, 911 tapes, agency audits, disciplinary and discharge records in government employee personnel files, and the addresses and birth dates of people included in government records. These exemptions will not protect people from privacy invasion and identity theft, but will only allow malfeasance to go unnoticed.

Second, the law should apply to all records, regardless of when the records were created, and should not pertain only to records created once the law is passed. We know of no states that grandfather in secrecy when updating their open records laws. It just doesn’t make sense. When women were provided the right to vote in 1920, the law applied to all women, including those born before ratification of the law.

Third, the ability for an agency to deny a request because it is deemed by an official as “burdensome” or an attempt to harass the agency is overly broad, vague and likely to result in blanket denials. Also, many states require a response within three or five days, not 10, and the ability to provide the record 20 days after the determination further delays access beyond reason.

Fourth, the public records office executive director should be appointed by the State Ethics Commission, which oversees the office, not by the governor. The more hands-off the person is from the agencies regulated the better.

Many more changes are needed to the bill, in conjunction with those who know how this legislation will work in real life. This bill has promise, but it needs more work and the revisions should be done in the light of day with full transparency and input from the citizenry and affected groups. If it does not go back to committee, then the bill should be voted down in the House. Although we speak on behalf of thousands of journalists, we do not see open government as a “media” issue. Studies show that about two-thirds of public records requests are submitted by businesses, a quarter by citizens, and about 6-10 percent by journalists. This is a public issue. Those framing the legislation ought to look at what is reasonable and what works in other states. Otherwise, Pennsylvania will be the poster child of secrecy and the courts filled with citizens litigating over legislative language that is vague, confusing and unworkable.


Sincerely,


Clint Brewer, National President
Society of Professional Journalists


David Cuillier, National Freedom of Information Chairman
Society of Professional Journalists

(Original link at SPJ National website.)

PS: Coming soon, I hope to provide an update to this post
by sharing my recent letter to Pittsburgh's Ethics Hearing Board.

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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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"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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What Do Other Ethics Panels Do?

Here are some quick facts for comparison.



Allegheny County's "Accountability, Conduct and Ethics Commission has its own website via the county. Its members were appointed in December, 2002. A reference in this document shows they met the very next month. They publish their meeting minutes and annual reports online, and those records show that the the county's Ethics Commission members meet an average of seven times a year. In their first full year, they met eight times. Their meetings are open to the public in accordance with Pennsylvania's Sunshine Act. I covered their January 25, 2007 meeting. When they had to hold a portion of their meeting in executive session, they followed the letter of the Sunshine law: announcing the reason during their public session first, and then inviting the public back in at the conclusion of the closed-door executive session. Member names and their complaint form are available online.



Pennsylvania's State Ethics Commission has extensive information available on its website. Meetings of its members are not only open to the public, they're available via streaming video on the state's site.





Philadelphia installed its new Board of Ethics members in November, after action by voters last spring to create an independent panel. A news release dated December 18, 2006 refers to members' "fourth public meeting in its first three weeks of operation". Their website has a special section dedicated to spotlighting their "WhistleBlower Protection Policy".

(Links updated April 3, 2007.)

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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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