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Nazareth, Pa., United States

Tuesday, May 17, 2016

NorCo Council, Emails and the Sunshine Act

The following is an email I sent to all members of NorCo Council late yesterday:

Members of Council:

As most of you are aware, and as I am often reminded, I am a suspended lawyer unable to practice law. But I am a fervent believer of local government transparency and accountability. Your practice of engaging in regular email exchanges may run afoul of the Sunshine Act. I am alerting you to this possibility so that you do not cross the line. I am copying your own able Solicitor on this matter. To the extent he disagrees with me, I would urge you to disregard my rant.

In previous meetings, I have heard vague discussions about a daily email going out to Council, along with exchanges that were taking place online instead of at meetings. Late last week, I became aware of a series of emails exchanged over John Brown's appointment of an Acting Director of Community and Economic development. I have since filed a RTK, and the entire online conversation was produced immediately. Most of it is completely innocuous. But a few comments in these exchanges constitute deliberation. This can only occur in an open meeting.

Pennsylvania's Sunshine Act was adopted because "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." 65 Pa.C.S.A. § 702.

Bob Werner indicated in these email exchanges that he won't support an Acting Director Appointment. John Cusick stated he felt Council should approve the Acting Director by resolution. Ken Kraft said that such a vote would usurp the Executive's power to appoint an Acting Director. All of this is "deliberation."

The Sunshine Act defines "deliberation" as "discussion of agency business held for the purpose of making a decision." Id. § 703. The Act further provides, "Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public." Id. § 704.

I believe the practice of discussing Council business via a cyber back room crosses the line.

I do not believe that the discussion of the DCED Director, however, is a Sunshine Act violation.

The word "meeting," as defined in the Sunshine Act, requires a "prearranged gathering of a quorum." Id. § 703. This discussion appears to have been more spontaneous. Nevertheless, as more and more issues are discussed by a quorum in a cyber back room, they will in effect become prearranged gatherings of a quorum that violate both the spirit and letter of the law. I am asking you, therefore, to refrain from deliberating county issues online.

To be clear, there is absolutely nothing wrong with fact finding and sharing information of interest.

This issue did arise in Luzerne County in 2013, and the Pennsylvania NewsMedia Association reached the same conclusion as I. Council responded by posting all emails exchanged among them online.

I think that is overkill, and that most of you wish to follow the law.


Anonymous said...

Erring on the side of discussing nearly everything except employees should be the norm. Anything else except selling/buying property and law suits should be public fodder as talking points. The law is pretty clear but power mongers do whatever they can get away with including their solicitors who are advising them. Way too many secrets and stuff hidden in closets.

Anonymous said...

These clowns want to do what they want and when they want. To usurp the Sunshine Act is a no-no, but these jokers, think they're above the law. This is a another Pennsylvania political corruption foray conducted by elected officials who do not care about the people they serve!

Anonymous said...