Sunshine Law Violation - A Matter of Interpretation

The one thing that has driven me to keep this site going is the belief that connecting people and sharing information is good for the community. I know this to be true.

One of the aspects of the New Government Center that has particularly bothered me has been the process. Like many others, I don't believe that the process has been open. It hasn't been open to alternatives and it hasn't been open to the public. From the Councils' perspective this may not be the case, but from outside looking in, it seems to be.

During the Public Comment period of the 7-10-06 Business Meeting I asked some questions following Councilman Davis' explanation of the process. His explanation was that two committees were formed based on the strategic plan, one to address the police and one to address the administrative building needs. Each had two committee members. The two committees soon realized they were doing the same work and formed one committee and in compliance with the Sunshine Law they did not have a Council quorum.

My question was first how could two independently assigned committees decide to form one committee - under what authority was this done, and second if the committee held meetings were they publicly announced.

I knew that the Committee had met at least twice following the May 25 public meeting, because at the last two workshops Councilman Davis, who chairs the committee, noted that his committee met and discussed the public comments and issues raised.

Each time he commented it struck me because I didn't recall these meetings ever being announced. I looked on the Borough's web site and the calendar did not include them (see here), but it did include other committees. Other Committee chairs noted when and where their meetings would take place and encouraged people to attend during the workshop and public comment period, but not the new building committee.

Instead of stating that the meetings were announced, the Borough Solicitor, Al Pierce, stated that they were administrative, not legislative, and therefore were not subject to the PA Sunshine Law. He further stated that most committees were administrative and only were announced as a courtesy.

Here is my take on the PA Sunshine Law based on this particular situation. You can read the law for yourself here.

• Section 702 states: "The General Assembly hereby declares it to be the public policy of this Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this chapter." Discussed or acted upon does not specify in a legislative or administrative capacity.
  
• Section 703 clarifies definitions:
• Administrative Action: "execution of policies...previously authorized or required by official action of the agency adopted at an open meeting of the agency. The term does not, however, include the deliberation of agency business." The Committee was deliberating a course of action not executing an approved course of action.
• Agency: "The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business," The Committee fits this definition.
• Agency business: "The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action." As noted above the Committee was not taking administrative action, it was deliberating and its work has created a liability with the engineer and architect. Its proposal will also create additional liabilities by contract.
• Deliberation: "The discussion of agency business held for the purpose of making a decision." Twice Councilman Davis noted that the committee met and considered the public comment and decided to first proceed as planned and second to send plans back to the architect and engineer to scale them back. Each action is a deliberation by the committee.
• Meeting: "Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action." The committee members met, deliberated and took action in form of making recommendation to Council.
• Official Action: "(3) The decisions on agency business made by an agency." The Committee made decisions on agency business.
• Section 704 defines an Open Meeting: "Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered)." The committee took action and deliberated. The committee is an agency as defined above. Therefore, they need to be exempt from each of the following to not be covered by the Sunshine Law:
  
• Section 707: Executive Session, Conference, or Certain Working Sessions. The Meetings were neither an executive session nor a conference. Exempted working sessions is specific to Boards of auditors specific to accounts. The Committee is not exempt under section 707.
  
• Section 708: Specific to Executive Sessions, which the Committee was not. The Committee is not exempt under section 708.
  
• Section 712: Specific to the General Assembly. The Committee is not exempt under section 712.
  
• Section 709 requires public notification.

In my thinking since the Committee is not exempt, is considered an agency, and has deliberated - as they have, then they are subject to the Sunshine Law. Since it has been acknowledged that notice was not provided of the at least two meetings that were held, then the Committee is in violation of the Sunshine Law.

Solicitor Pierce's interpretation of legislative vs. administrative does not appear within this law. It may be based on case law, but not on the law as it is written.

So what does this mean? I don't know if it means much of anything, I guess in many ways it is more principal and belief. I hope in the future it will lead the Council to announce all meetings unless they relate to personnel and other items absolutely covered by exemptions.

What do you think - mountain or mole hill? Does it matter if the committee violated the Sunshine Law? Would the public care if these meetings were announced? Would they have shown up?