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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Sisyphus & PA Open Records

"Sisyphus, in Greek mythology, was a king punished in Tartarus by being cursed to roll a huge boulder up a hill, only to watch it roll down again, and to repeat this throughout eternity."
-Wikipedia

A recent editorial in the Sentinel warns that a state agency is proposing to use Pennsylvania's new Open Records Law to more difficult to obtain, not less.

A provision covering the hundreds of local district courts across the state to take effect next year is intended to make access to public information more uniform. That means information publicly available in one local court wouldn't be under a blackout in another.

That's where a draft proposal by the Administrative Office of Pennsylvania Courts comes in...but apparently not in the way you might expect.

According to the Sentinel:

Court proposal a step back for public access

....The rules also propose giving courts as long as seven weeks before complying with a records request, limiting the number of documents that could be viewed in a day, requiring citizens to put their requests in writing and even restricting records access to certain days or times.

Clearly, this policy was developed strictly from the viewpoint of court personnel and not the public. These rules, if adopted, would be very convenient for them but ignore completely the spirit of open records law — namely, that the people have a right to keep an eye on the people’s business. And it’s not as if these courts have been burdened in the past by records requests or that they have any reason to expect a flood of requests under the new law. They haven’t and they don’t.

Making public a citizen’s arrest, charges, trial and the outcome is a protection for the defendant. In many parts of the world today, it is still possible for someone to be arrested in the dead of night, thrown in prison and never be seen again....

The state court system provides more information and a link for public comment on its website.

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The Dueling Billboard Subpoenas That Might Have Been

Dueling subpoenas and depositions could have marked the start of a long and messy legal battle involving City Council members, Mayor Luke Ravenstahl, and Lamar Advertising. It appears that won't happen, thanks to a resolution of the conflict over the original permit for a large electronic billboard downtown. Here's a closer look at excerpts from the legal documents I covered in my Channel 4 Action News report. They show what that peacekeeping apparently averted.

In this post you'll find images of now-voided:

• Subpoena requests targeting Mayor Luke Ravensthal, Chief of Staff Yarone Zober, and URA Executive Director Patrick Ford, and

• Subpoena requests targeting communications with news organizations and with bloggers on the part of five City Council members.

These are the public records:

• subpoena and discovery motions from attorneys for City Council members Shields, Peduto, Kraus, and Burgess and subpoena and

• subpoena and discovery motions from attorneys for Lamar Advertising.

They were filed with the city Zoning Board this past week, before City Solicitor George Specter, attorneys for Lamar and attorneys for Councilman Dowd reached their agreement on how to resolve the dispute over the billboard permit.

Again, the subpoena requests and discovery motions are all now considered moot, but they would have covered a wide range of records:

• "including, but not limited to, correspondence, notes, letters, documents, emails, text messages, voice mails, cell phone records, calendars, receipts, check registers, calendars, log books message slips or other statements of correspondence) of communications", including many with "news organizations", "members of the press or blogs".

Note that the section dealing with communication with reporters and bloggers appears to have been much broader than the one that would have targeted only billboard related matters. It appears to have sought all "non-privileged records" of communications with reporters and bloggers.

First, click "Read More..." to expand the post and reveal the documents.

Then you can start clicking on each of the images to enlarge them to readable size.

(You can also click this permalink to see the entire post, images and all, in a separate window.)

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From the filing by the attorney for Council members Shields, Peduto, Kraus, and Burgess:







From the filing by attorneys for Lamar Advertising:

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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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Paper Chases, Pennsylvania Style

Here are some interesting twists involving proposed changes in Pennsylvania's open records law.


Open records law: Maimed but breathing
The Morning Call, Editorial

"For instance, e-mails would be excluded. As open-records advocate Timothy Potts put it, in the 21st century, that's like exempting paper."

Politicians fight against openness
Editorial, The Daily Review

And, in a true revelation of how these politicians view the public, agency officials would be allowed to deny any request they deem “harassing.”

Citizen: “I’d like to see how much of my money you spent on travel last year.”

Public official: “Stop harassing me.”

Public records bill comes under fire
Philadelphia Inquirer

"HARRISBURG - The proposed new open-records law for Pennsylvania declares that any document created by a public or government agency shall be considered an open record.

Unless, of course, it falls under an exempted category. That list runs six pages."

You can read more about the issues at PassOpenRecords.Org and The Pennsylvania Freedom of Information Coalition .



Finally, there was an attempt to keep from public view this vital state secret: the locations where Pennsylvanians can vote in Tuesday's election.

The (real) Associated Press story:

HARRISBURG (AP) (October 26, 2007, 2:31 a.m.)- State officials have decided not to publicize their list of polling places in Pennsylvania, citing concerns that terrorists could disrupt elections in the commonwealth.

...inspired this (satirical) column by Rich Lewis:


More great ideas for protecting us from terrorism
By Rich Lewis, Sentinel Columnist

After discussions with my colleagues over at State, it is clear to me that our long-standing practice of putting the names of cities on highway signs is imprudent in these dangerous times, and so I am ordering all such signs removed immediately. To further thwart potential terrorist activity, we will erect special “Distractor Signage” close to densely populated areas. For example, signs on the outskirts of Philadelphia will say, “PHILADELPHIA 200 MILES OTHER WAY.”

The Sentinel's editorial takes a more serious tone:

Secrecy officials’ default mode
By The Sentinel

"Fortunately, Gov. Ed Rendell on Friday stepped in and reversed the policy. Noting that withholding the information was a violation of the state’s open records law, he also correctly acknowledged that the information is easily obtained from county elections offices — making the Department of State’s move not only outrageous but pointless."

"But it is yet another indication that those running the state operate in a culture of fear and secrecy. Concealing information is second nature to them."

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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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Reminder: You're Invited!

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


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

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

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

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

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

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


Thanks.


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


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


The following detour suggestion is from a PennDOT website:

Ramp Closures at Bates Street

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

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

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Invitation To Open Up?

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

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

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



Here are some good columns on the topic by:

the PG's TechMan,

the Trib's Dimitri,

and the Trib's Brad Bumsted.

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"Right To Know": An Editorial Sampling

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


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

You need better access to public records
December 6, 2006


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


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


Transparent government: Opening its records
April 26, 2007


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



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


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



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



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


Some bite, please
August 14, 2007


Open records law: Accountability at last
August 16, 2007


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

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Open Government, Open Records: You're Invited!

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Team 4 Investigative Reporter Jim Parsons and I have been working on a special event and you're invited to join us.

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

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

I'm on the local SPJ board, and Jim's on the board of the PaFOIC. It turns out that both organizations were working on similar programs, so we decided to pool our efforts and invite the public to join us. The event is free and you don't have to pre-register, but please RSVP if you can.

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

In the days ahead, I'll be posting links to articles and information of interest on related topics here on The Busman's Holiday.

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