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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Ethics Code Update Coming?

Ethics Board File Photo

Jeremy Boren reported in this morning's Trib that Pittsburgh's Ethics Hearing Board today planned "to discuss publicly for the first time its recommendations to overhaul the section of the city's ethics code that lays out seven exceptions for when it's OK for public officials to accept gifts or favors".

That indirectly prompted this question from Bram Reichbaum over on The Burgh Report -- what happened? The short answer: nothing just yet, but something is in the works. A longer response, in the form of my e-mail to Bram R, follows.

Bram,

I can tell you that the City Ethics Hearing Board has taken no action yet.

I spoke with Vice Chair Kathleen Buechel. (A dentist's appointment delayed my arrival until after today's half-hour long ethics board meeting had ended, but I crossed paths with her on the fifth floor of the City County Budiling as she was leaving Council' s offices. ) Buechel tells me they decided to delay releasing anything until after they've had a chance to further consult with the City Law Department. She anticipates they will hold a special meeting sometime between today and the next regularly scheduled meeting in November.

Of course the recommendations of the working group will face a vote by the full ethics board. Those final recommendations will then be submitted to city council for consideration.

PS: Thanks for asking -- I needed a fresh blog post.

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Ethics News Roundup

The city's website notes that Rabbi Daniel Schiff's term on the Pittsburgh Ethics Hearing Board expires August 1, 2008. That's Friday of next week. The board's next meeting is the following Friday. Ethics Board Chair Sister Patrice Hughes told me a few months back that she and her fellow board members were going to request that Mayor Ravenstahl appoint Rabbi Schiff to an another term.

Rabbi Schiff appears twice, briefly, in my July 13, 2007 Channel 4 Action News report.

While the city website lists a vacancy on the board, City Council actually approved Daniel Devinney as the replacement for Penny Zacharias some time back.




Pennsylvania's Ethics Commission is scrupulous in not discussing any cases under its investigation or review. As a result, Lawrence Fisher the attorney for Urban Redevelopment Authority Director Pat Ford is currently the only source available to answer questions about the status of the commission's ethics review of Ford.

The Trib headlined Tuesday: "Decision to investigate suspended city development chief delayed", reporting:

The state Ethics Commission might decide by month's end whether it will press on with a full investigation of Pittsburgh's suspended development chief or exonerate him, his lawyer said.

...and...

"The state Ethics Commission failed to timely docket the inquiry resulting in a purely bureaucratic delay," said Ford's attorney, Lawrence Fisher.

So far, Attorney Fisher hasn't responded to my e-mailed request for an on-the-record statement.


As posted here, Mr. Fisher had said previously he was advised via phone by the Ethics Commission's Executive Director John Contino that the preliminary inquiry of Ford began around May 19th.

To recap, before any formal investigations, by law the state ethics commission first opens a preliminary inquiry, which can take up to sixty days. At that point, the ethics commission's executive director makes a determination whether to move forward with a full investigation. The Post-Gazette reported in June 9 that "Mr. Fisher said the commission is expected to dismiss the matter or launch a full investigation by July 18". That would be sixty days after May 19th, and is consistent with the timeline I've reported.

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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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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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The Busman's Holiday's Holiday

Years ago, I was vacationing in New York when I turned on a hotel room TV only to see a national news report showing smoke rising from Western Penitentiary and detailing an inmate uprising there. It was a strange experience for me as a reporter--watching an event from afar that I would most surely be covering if were I home and on duty.

Western Penitentiary In Happier Times. [No, I was not a reporter at the time of this etching]

So far, there's been no breaking news story to overshadow my current vacation, but the week is still young. At least now I can blog about it if something happens.

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I'm still in town while vacation this week, though did I spend last Friday in Akron covering the sentencing of Donna Moonda. That assignment put me out of the loop for the moment in covering the city budget. City communications staffer Joanna Doven was nice enough to agree to set aside for me a hard copy of the mayor's 2008 budget and five-year-plan. (It's a sign of my long-standing acquired taste for covering city government that I missed being there for the media presentation. )

I e-mailed a welcome to the mayor's new press secretary, Alecia Sirk on Monday. I note the latest news releases from the mayor's office still have Joanna's name on them; perhaps there's a delay in the transition.

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Rauterkus

UberBlogger Mark Rauterkus posted about my vacation before I did. In his role as a candidate for city controller, he sent me links to his flurry of complaints filed with the Pittsburgh Ethics Hearing Board. The PG's Early Returns noted the details in this post, under the headline "Can't muzzle Mark". Mr. Rauterkus managed to create an online access complaint form for the ethics board, while the city has not yet done so. The ethics board was unable to meet as planned recently (because of concern it could not muster a quorum, according to the law department). Their next scheduled meeting will be the second Friday in October.

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Speaking of prolific Pittsburghers, PG reporter and columnist Dennis Roddy's latest podcast is online. You can check out his reflections on the Pittsburgh Organizing Group's anti-war protests here.

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Mayor Before Ethics Board: Notes & Quotes

Mayor Luke Ravenstahl came before Pittsburgh's Ethics Hearing Board to answer its questions about two corporations paying his way at a charity golf outing.

Board members do not accuse the mayor of breaking the law. They wanted a public dialog with Ravenstahl about the implications of UPMC and the Pittsburgh Penguins picking up the $9,000 tab for his playing at the Lemieux Celebrity Invitational.

The price for a threesome playing two days in the Lemieux charity golf event was $27,000. The Penguins--who struck an arena deal with Mayor Ravenstahl and other government officials--paid the mayor's way for one day. UPMC--which has business and regulatory dealings with the city--hosted him for the other.

Board members questioned whether the public might perceive an appearance of impropriety, even though the city's ethics law clearly provides an exemption for accepting admission to charity events. Ravenstahl says that exemption applies here.

Republican candidate for mayor Mark DeSantis issued a statement charging that Ravenstahl "continues to cling to the letter of the law in an effort to defy its spirit".

Video of my Channel 4 Action news report is on the Pittsburgh Channel website.


Here are some notable quotes from Mayor Ravenstahl's appearance before Pittsburgh's Ethics Hearing Board and from interviews afterward.


Ethics board chair, Sister Patrice Hughes:

• "...these facts might appear on some level to compromise the impartiality of decisions you might make on contracts or other matters."

• "...would the public think that you might be beholden in some direct or indirect way to those who invite you to such an expensive and exclusive event?"



Mayor Ravenstahl:

• "I am proud to have been a participant, and i gladly accepted upmc's invitation. The only thing of value i received was knowing that i played a small part in seeing the work of the foundation will continue."

• "In fact it wasn't a gift. The $9,000 that you reference was given to the Lemieux foundation. In no way did I directly benefit from that."

• "While i recognize the need for close scrutiny of public official, we must allow them to part of the community in which they serve."



Ethics board member, Rabbi Daniel Schiff:

• "...UPMC provided you with the benefit of being at this rather exclusive event, is that an appropriate way to understand it?"

• Schiff: "...a larger benefit monetarily might be of concern." Mayor Ravenstahl: "I would only argue I-- it would be different if I'm receiving the monetary value of the event. This was not a gift to me. I received nothing from UPMC."



Hughes, after the meeting:

• "I think that we pretty much agree that the charitable exemption applied."



Ravenstahl, afterwards:

• "I thought it was a tremendous opportunity for me to restore the faith in the residents of the City of Pittsburgh. That nothing wrong was done there. That my attendance was appropriate."

• "There's no quid pro quo in my administration, and there never will be. So, I will continue to attend these charity events. I will continue to participate. I think it's the mayor's responsibility and duty..."

• "I interact with people who do business in the City of Pittsburgh on a daily basis. That's not going to change. That's healty. But I do want to stress that there's no quid pro quo. There was not with UPMC and there will not be with any organization in the city."



Republican mayoral candidate Mark DeSantis on the mayor's appearance before the ethics board:

• "It's a sad state of affairs that it has to happen at all, number one. But let's hope that the mayor acknowledges the fact that he made a mistake and it was bad judgement. It just reflects bad judgement on the part of the mayor."

•"It's not just understanding the spirit, the letter of the law. It's understanding the spirit of the law, and avoiding even the appearance of impropriety."

• "He took a gratuity for attending a charity event. I have nothing wrong with the mayor or anyone else, any public official attending a charity event. Just don't take your gratuity."

• "You should not accept gratuities from those organizations as mayor, period. No gratuity whatsoever, from any organization that's doing business or seeking to do business with the city."

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Podcast--Ethics Board on Mayor's Golfing with UPMC

I've podcast a seven minute segment of the Pittsburgh Ethics Hearing Board discussing the controversy over Mayor Ravenstahl's golfing event. You can listen to it at this link.


Video of one of my Channel 4 Action News reports is on the Pittsburgh Channel.

Here are some key quotes from the board's discussion that were in my TV reports:

•City Ethics Bd Member Rabbi Danny Schiff : "It seems to me that the mayor is certainly in violation of the codes in front of us. Not only the Pittsburgh city code, but perhaps the state ethics act."

•Ethics Bd Vice Chair Kathy Buechel: "We don't want to stop involvement in charitable activity, but something that's worth $27,000 does, I think, seem to the average citizen, to be a perk. "

•Board Chair Sister Patrice Hughes: "It was such an excessive amount of money...even though it was for a charitable cause."

•Rabbi Danny Schiff: " It leaves the public with an impression that there is a gift being given in order to curry favor with the mayor.">



The mayor's office released this statement from Mayor Ravenstahl:


“I was proud to attend and support, and honored to be invited to, the Mario Lemieux Foundation Invitational, a charitable event that has raised millions of dollars to support cancer, neonatal and medical research. My attendance at the event was entirely appropriate under Section 197.07(e) of Pittsburgh’s City Code which addresses admissions to charitable events. I will meet all necessary reporting requirements under the State Ethics Act, such as Statements of Financial Interests, with respect to my attendance at the Lemieux Foundation Invitational. A question was raised about a gift bag I received at the event. Though the value of the gift bag was arguably nominal, and thus permissible under Section 197.07(c) of the City Code, I will return it.

I attended the Foundation Invitational as a guest of two of our region’s greatest assets: the Pittsburgh Penguins and the University of Pittsburgh Medical Center. As Mayor, you cannot address matters of City business such as job growth, economic development, and payments in lieu of taxes without talking. During the Invitational issues importance to the City were discussed, including my trip to Harrisburg where I lobbied for state budget appropriations relevant to arena funding, and UPMC’s ongoing partnership with us to contribute payments in lieu of taxes.”

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What's The Ethics Board Up To?

Pittsburgh's Ethics Hearing Board has plenty on its "to do" list.

Friday was the board's second meeting. During that session:


• It made public a letter it received from Mayor Luke Ravenstahl. In that letter, the mayor calls on the panel to examine the case of Redd-Up Crew members who wore campaign t-shirts backing Councilman Jeff Koch while on city time. Board members decided to seek more information on the Public Works Department dress code, as well as a definition of the "political activity" prohibited by law for city employees during work hours.


• Councilman Bill Peduto urged the board to come up with ways to strengthen Pittsburgh's ethics code. Peduto addressed the board during its public comment period. He told the members "there is a great need for this board. You serve as the watchdog to keep ethical behavior within city government--as long as you use the power." Peduto pledged to introduce legislation to strengthen the city's ethics law, based on the board members recommendations.


• The ethics board went into executive session to privately discuss a citizen complaint against a city employee. It's been previously reported that Jason Phillips intended to file a complaint against Koch staffer Eileen Conroy for allegedly making a campaign call from the councilman's government office.

Some ethics board members said once again that they want to emphasize ethics education in addition to enforcement. When questioned by reporters, board chair Sister Patrice Hughes insisted that doesn't mean a de-emphasis of the panel's enforcement duties. "We can subpoena people, we can investigate. No, I don't mean to infer in any way that we are watering down the responsibilities that we have, and our commitment to be very credible servants of this city", said Hughes.

This meeting of the ethics board was moved from City Council Chamber to a room at 200 Ross Street. A check with council's office revealed no conflicting event to explain the move, however. Peduto urged the ethics board to use Council Chamber for future meetings, so they can be cablecast.

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Ethics Board Meets Friday (Update)

Pittsburgh's Ethics Hearing Board still plans to meet Friday morning at 10, but it won't be using the City Council chamber this time.

The law department says the meeting's location has been shifted to the large conference room on the first floor of the building at 200 Ross Street.

The ethics hearing board web page hasn't been updated yet.

At last word (Early Returns, third story) , the panel--created 17 years ago--wasn't accepting complaints from the public because it hadn't come up with a complaint form. Allegheny County's complaint form is online at this link, and the state provides its complaint form here.

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UPDATED: Catching Up On A Few Things

Update:

The Patrick Dowd campaign issued a statement this afternoon that claims a widening lead over Councilman Len Bodack. The news release says:

-"It was reported on Friday that six manually counted absentee ballots that had been incapable of being processed by optical scanning equipment resulted in an increased margin for Mr. Dowd of three additional votes. Of those absentee ballots, four votes were cast for Patrick Dowd, one vote cast was for Len Bodack, Jr., and one Republican ballot was cast that did not affect the Democratic primary result".

-"Today, it was announced that eight emergency ballots cast manually in voting district 11-10 due to an early morning machine malfunction had been counted this morning. All eight votes went to Patrick Dowd. Patrick Dowd's vote margin is currently calculated at 92 votes."

-"Dowd attorneys... remain confident that it is not mathematically possible for Councilman Bodack to change the course of the election by overcoming this deficit".

-"...the Dowd campaign sees Councilman Bodack's concession as inevitable."

The PG has more here.

(Below you'll find my original post, which includes an audio link to Bodack's refusal to concede.)

• Councilmen Len Bodack and Jeff Koch spoke with us briefly about the election results. These condensed sound clips are from interviews done after last Thursday's council meeting. The audio on the shortened questions are boosted for clarity.

The Bodack sound file runs under a minute.

The Koch sound file lasts just over two minutes.

I wouldn't call these podcasts, given their length. Dennis Roddy's latest Audio Journal does offer a podcast on his election day adventures.

• Bram of The Pittsburgh Comet and I crossed paths last Friday on Grant Street. He asked why I hadn't blogged about the city ethics board's first meeting.

Since I had to cover President Bush's visit on the day the board met, I didn't feel I had anything to add to the Trib and PG coverage.

The ethics board members are planning to use City Council Chambers for their meetings on the second Friday of every month. I do hope to be there for the June 8th meeting. The monthly sessions are scheduled for at 10 a.m. (We can watch their city web page for updates.)

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Ethics Board Meets Friday

(H/T to Maria of 2 Political Junkies for use of the above photo.)

UPDATE: It turns out that I won't personally get to cover the first ethics board meeting; I'm part of our team coverage of the visit by President Bush to St. Vincent College. I'm told they're hoping for regularly scheduled meetings from now on. I was looking forward to covering the first, but other duties call.

The controversy over some Redd Up Crew workers wearing the above pictured t-shirts will land in the laps of Pittsburgh Ethics Hearing Board members. Mayor Ravenstahl has referred the issue to them.

That panel plans to hold its first official meeting with all five members present this Friday morning. It's set for 11:00 on May 11th in Pittsburgh City Council Chamber.

My Channel 4 Action News report on the controversy includes a new allegation: that a member Councilman Koch's staff made a campaign call from Koch's government office. That claim also appears to be headed for the ethics board. (I've added a video link here to a story on The Pittsburgh Channel.)

Regular readers of Pittsburgh's burgosphere have noticed lapses in posts by a variety of bloggers-about-town lately. (Was there a vacation package offered at that Boot Camp Pittsburgh seminar? Now I really wish I'd attended. ) Now, just as others have reappeared, I find myself temporarily going longer between offering blog posts. My apologies. I hope to pick up the pace again in a couple of weeks, but I won't be absent entirely in the meantime. For now, I'm a bit sleep-deprived from making sure that one of our beloved cats stays in his e-collar while recovering from a medical procedure.

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Being "Circumspect" Isn't A Bad Thing

I've gotten some questions about my reporting that Pittsburgh Ethics Hearing Board members were "very circumspect" in their answers.

Some readers felt perhaps "circumspect" is a negative description. It's not. In some professions--like the judiciary and journalism--it's a virtue.

Merriam-Webster's Online Dictionary says "circumspect" means "careful to consider all circumstances and possible consequences : Prudent ".

The Oxford American Thesaurus describes "circumspect" and "vigilant" as synonyms for: careful, cautious, wary, watchful, and alert.

It says "to be circumspect is to be watchful in all directions and with regard to all possible consequences ( | these journalists have to be circumspect, not criticizing anyone too harshly)".

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Ethics Board Podcast...& A Look At Its Powers

Update: I've redone the podcast, organizing it by topic
instead of using the raw audio.

As promised, here's a link to a podcast based on Q&A with city ethics hearing board members Kathy Beuchel & Sister Patrice Hughes and board nominee Penny Zacharias.

All three are very circumspect in their answers. They emphasize what they see as the educational and service role of the Pittsburgh Ethics Hearing Board.

That's not to say the board will lack powers and duties to investigate alleged ethical violations and hold hearings on complaints.

The city code gives them the authority to issue subpoenas and take sworn testimony, require evidence, and issue orders and penalties.

The code makes it clear they can launch investigations on their own, with or without a complaint.

Section 197.12 (a) (1) (INVESTIGATIONS) says:

"Upon a complaint signed under penalty of perjury by any individual or upon the Ethics Hearing Board's own motion, the City Solicitor shall conduct a preliminary inquiry into any alleged violation of the city provisions." [Emphasis added.]

(The city's ethics handbook is available online. It reviews the city's code of conduct and the powers of the ethics hearing board.)

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Ethics Board: Closer, But No Quorum

This post is based on my Channel 4 Action News report.
I hope to add a podcast this weekend.
The Trib's story is at this link. The PG's coverage is here.

The allegations against Councilwoman Twanda Carlisle prompted city council and the late Mayor Bob O'Connor to revive Pittsburgh's ethics board, but the panel still hasn't managed to start its job since it was confirmed last summer. Today, some members gathered to try to get things in gear.



Those criminal charges against Councilwoman Carlisle don't appear to be on the radar of the ethics board members, at least not yet. They did, however, answer some reporter questions about the job facing them when they finally do get a quorum and start dealing with the business of city ethics.

It was the kickback conspiracy charges against Twanda Carlisle filed by District Attorney Stephen Zappala that prompted the mayor to ask the city ethics board to try again to hold it's first meeting. Today, they still couldn't muster a quorum, but the two members and one nominee who did make it don't seem inclined to take up the Carlisle case.

Sister Patrice Hughes said "that sort of has been turned over to Steve Zappala's office. Would we be beating a dead horse if we picked this up?"

Her fellow ethics board member Kathy Beuchel said "I think you look to what's important for this commission to do going forward."

Sister Hughes did answer that they could look at spending by city officials: "that's a critical issue, and I think we've seen examples, terrible examples of expenses that really are not promoting good government, that are self-serving. And that would be something that should be looked at".

But Hughes, Beuchel, and ethics nominee Penny Zacharias, are all more focused on teaching city officials and workers about ethics than launching investigations. Bbeuchel spoke of "charting a course that has a strong education and prevention component to it, so that all of the city employees and those that are considered public interested can really have the right context."

Zacharias said "we have a great opportunity to open up all aspects of the authorities of the board. Education is obviously a very important one of those, though."

Two ethics board members are out of the country, preventing the panel from having a quorum--at least until Mayor Ravenstahl's nominee is confirmed by pittsburgh city council next week. Rev. John Welch is in Canada and Rabbi Dr. Daniel Schiff is in Israel, according to an aide to the mayor.

Here's a link tracking back my previous posts on the ethics board. So far, the Pittsburgh Channel version of my story does not include the video.

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