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Nazareth, Pa., United States

Monday, May 16, 2016

How NorCo Council Evades Sunshine Act

Late last week, NorCo Council member Bob Werner sent this email to his fellow members of Northampton County Council.
For the record, I am opposed to recommending a replacement as acting director [due] to the fact that there has been little presence, if any, at our council or committee meetings and we have had little or no updates as to what has been accomplished or what the committee as a whole has done or is working on.
I respectfully requested the Economic team 's presence at our May 5th council meeting.and no one showed.
I am now requesting , with ample time in advance, to have all Economic team members at our next council meeting to [respond to] unanswered questions and concerns that still are open.
Actually, Werner's comments are not "for the record" at all. They are instead the technological equivalent of the back room meeting. He is deliberating, which is defined as the "discussion of agency business for the purpose of making a decision," but is doing so behind closed doors.

Pennsylvania's Sunshine Act clearly requires that "official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public."  

Instead of expressing his disdain for Northampton County's Department of Community and Economic Development in an open meeting, President John Cusick and other Council members are evading the law by conducting agency business via email. In fact, it could even be shielded from public disclosure under the Right to Know law as an "internal, predecisional deliberation."

Obviously, there is nothing improper about providing Council members with information or letting them know that you want a department to attend a meeting. Fact finding can also take place in private. But Werner's other points cross the line, and need to be said at an open meeting instead of through daily email chains in what certainly seem to be a pre-arranged cyber meetings.

When he was a member of council, Lamont McClure discouraged these cyber back rooms, out of the public eye. But Ken Kraft tells me that the new Council is ignoring this sage advice. During meetings, I have heard discussions of daily emails going back and forth. This practice may go on in Lehigh County as well.

It does result in short, pro forma meetings and very bad government.


Anonymous said...

Huh? Don't quite get the violation you cite. But this spat certainly enlightens us on possible reasons why Donaher suddenly resigned from the beleaguered DCED. She avoided public embarrassment at a council meeting for her lack of leadership and poor results. Rather than ride out on a rail, she chose to sneak out while her fragile reputation was still intact.

Bernie O'Hare said...

Who are you, the Royal We?

Deliberating on agency business in regular emails to all council members is a Sunshine Act violation.

Anonymous said...

If it's happening in Lehigh County we should let it happen here, Lehigh County isn't stuck in the 1800's and their economic development and growth shows it.

Bernie O'Hare said...

It constantly amazes me how uninformed people can be when it comes to the Sunshine Act. It does not matter what county issue Werner is discussing. The fact remains that he is sending an email to all Council members, behind closed doors, announcing his intentions on a policy matter. This is a Sunshine Act violation. The fact that LC may engage in the same practice is no justification for a violation in this county. These email exchanges among Council members have become so frequent that they are in effect prearranged gatherings of a quorum of Council for the purpose of deliberating on county business. This needs to be out in the open.

A request to have people made available is not deliberation. The observation that DCED staffers do not show at meetings is not deliberation. But a statement that Werner is opposed to the appointment of an acting Director is deliberation. This is going on concerning other matters coming up before council and totally defeats the purpose of having a public meeting.

Anonymous said...

Still don't get the concern. Werner is entitled to express his opinion in an e-mail to colleagues. It is not official until it is expressed or voted on in a public meeting. It is just his opinion. E-mail communications among public officials falls under Open Records, so what's the fuss? People will know about it regardless, if they are that interested. It is a moot point anyway since council cannot block the administration from filling that position. They can vote against the candidate, but that would happen at a council meeting. Werner's not stating that he is against X-Y-Z candidate, just that he is opposed to filling the position. But that is not his call, or anyone else from council. So, no harm, no foul.

Anonymous said...

2:16. What? You must be Werner

Bernie O'Hare said...

You are being purposely obtuse and are attempting to justify disregarding a state law designed to bring people close to the government, not take them away. In fact, the legislature specifically determined that "the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decisionmaking of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society. " It's a pretty big deal, not the triviality you present.

Under the specific provisions of the Sunshine Act, all official actions and deliberations by a quorum of an agency must take place in an open meeting, not some Internet back room. (See Section 704).

Werner's statement, "for the record," that he opposes the appointment of an acting DCED Director is "deliberation" because he is discussing agency business for the purpose of making a decision.

The only real question is whether these email exchanges constitute a "meeting" for purposes of the Sunshine Act.

The Sunshine Act defines a "meeting" as 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."

I would agree that comments on one issue in an email exchange involving all of Council is not a "meeting" as defined by the Sunshine Act. But when Council members regularly engages in deliberation of agency business in emails that are sent to all Council meetings, then the deliberations become pre-arranged.

It's a very convenient way to exclude the public, and frankly, is exactly what I would expect from John Cusick, who acts with disdain for the public and members of Council who get in his way.

This issue was raised three years ago in Luzerne County, whose Council members were discussing county business in emails behind closed doors. The Pa News Media Ass'n accused Luzerne's Council of doing an end run around the Sunshine Act.

Also, to your point about emails being subject to RTKL, you do not know the law. Though I now have ALL of the emails in response to a RTK request, my request could be denied under the "internal predecisional deliberation" exception.. Ironically, the Council could deny my request to see deliberations that the Sunshine Act clearly states must be conducted openly.


Anonymous said...

Don't look like no one cares, sun shining out side, government gonna do what governement gonna do no matter whose in their

Anonymous said...

Rules and laws are fine but if not enforced...what good are they? Corruption knows this and continues to flourish because no one calls them on it! Ethical behavior is a minority trait in politics and nearly extinct. Sad..