Non-Disclosed, Non-Compliant, and Wondering Why?

Despite many calls for more open government in Nazareth, it seems the Nazareth Borough Council has continued to put aside open meetings in favor of closed or at least non-disclosed ones. And I have to wonder after all that has happened this past summer, why?

On Thursday it was mentioned in passing that a committee was meeting weekly in regard to the transition to the new facility. On Monday, it was twice mentioned that a committee was meeting weekly. At one point during Public Comment Councilman Bowers noted that the Public Property Committee was focused on the transition to the new building. As a result, I asked Council President Dan Chiavaroli if the Public Property committee was the one meeting weekly or if a new one had been formed, what was the committee doing and were the meetings open to the public. He stated there was a new committee. It was not Public Property, but that Conrad Bowers was chairperson of both.

The new committee was not announced. The meetings were not on the web site calendar for October or November. No committee report was given at Thursday's workshop or Monday's meeting regarding the committee's activity. It was noted that the committee has been meeting in a room at the Lafayette Bank Building with Councilmembers Bowers, Kopach, and Herbst at 2:00 p.m. on Fridays and that the Secretary Paul Kokolus, Police Chief Ruch, and Mayor Keller were also in attendance and serving on the committee.

It was further noted by Council President Chiavaroli that the determination regarding whether or not a meeting was open was the discretion of the Committee Chairperson.

While Councilman Bowers noted his meetings were open, he also stated that the public could not just come into the bank building. A process would be determined by the committee and provided at a later time.

So we have a daisy-chain.

1. Ultimately, the choice in Nazareth to comply with the Sunshine Law is up to the individual Council Member. I'd recommend that each Council member take it upon him or herself to serve only on committees that comply to the fullest extent possible (for instance don't discuss personnel or contract information publicly, but keep everything else out in the open) and to respectfully resign from those committees that do not comply.
2. Each Committee Chairperson must decide to be open with meetings by announcing them, having minutes recorded, and reporting on the meetings at workshop sessions.
   
3. The Council President ought to take it upon himself to encourage open meetings by supporting a motion that requires all council meetings to be open to the public unless the meeting's agenda was specifically in regard to personnel or contractual matters.
4. The mayor ought to encourage open meetings in all possible circumstances to encourage public input and transparency of government actions.
   
5. The solicitor ought to encourage open meetings in all instances except when having an open meeting would open the Borough to legal action.

Feel free to read this list in either order, top down or bottom up.

The principle of the law, or the details of the law can be argued (read about the sunshine law here, or NewsOverCoffee articles on the sunshine law here).

It is inherently better to practice open government than closed government. There is nothing good that will come of a closed meeting if it doesn't expose you to legal action. If it is closed, people become suspicious. Good ideas are deemed 'too good to be true' and cynicism abounds. Why fuel the fire of cynicism with closed meetings? Why give people a reason to distrust government?

Open meetings or be on the defensive for everything you do.

Regarding the law I wrote the following this summer in regard to the committee that had been meeting (and spending money to write up plans for the new government center that has yet to be declared). I've slightly modified my italicized comments based on a generic committee as opposed to the committee led by Mr. Davis (but the original is still available in a link in the post above):

You can read the Sunshine 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 as Solicitor Pierce delineates.
  
• 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 question becomes, has a course of action been deliberated or was it being executed? If deliberated, then it must be an open meeting.
  
• 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 a course of action.
• Deliberation: "The discussion of agency business held for the purpose of making a decision." The purpose of the committee is to deliberate courses of action on a variety of transitional issues.
  
• 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 quorum is not of the Council, but of the agency, which is a committee by definition. If there is a scheduled time to meet, it is prearranged and they are meeting to make decisions/recommendations to the full Council they are having a meeting.
• Official Action: "(3) The decisions on agency business made by an agency." Based on the above, a committee that makes decisions on agency business is in clear violation.
• 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.

Given this, and again I am no lawyer, it seems the Nazareth Borough Council must step up from both ends of the equation - top down and bottom up - to demonstrate its willingness to be compliant by law and in principle with the Sunshine Law.

The only significant means of enforcement of the Sunshine Law is the people's ability to vote out those not in compliance, which is why I am recommending members resign from non-compliant committees. Committee chairs without full committees will be viewed as non-compliant. At the same time, I encourage pressure on the other leaders, both elected and paid. The leaders, the Mayor and Council President, need to lead the borough in the best way possible while being advised by the solicitor. They need to push the solicitor and challenge him to provide Nazareth with the most open government possible, not the most restrictive.