What's wrong with the Sunshine Act

PNA members may use this editorial freely for reprint in their own publications.

By Teri Henning, General Counsel
Pennsylvania Newspaper Association

As a lawyer for the Pennsylvania Newspaper Association, I am often asked what's wrong with Pennsylvania's open meetings law, also called the Sunshine Act. Why is it that public officials all across the state are able to conduct so much public business behind closed doors, and without any repercussions? I talk to hundreds of reporters and editors during the course of a year about closed meetings and "secret" decisions. Last month alone, our Legal Hotline received about 50 telephone calls from reporters with questions about whether agencies were complying with the Sunshine Act.

As a result of these conversations, it has become clear that the main problem with the Sunshine Act is not really the Act itself. The real problem with the Act -- and this probably won't surprise anyone -- is that public officials ignore it. The penalties under the Act are insignificant and very rarely imposed. Worse, the Pennsylvania courts have repeatedly permitted public agencies to ignore the Act's requirements by holding that agencies can "cure" Sunshine Act violations. This means that they can discuss and decide matters in private, in violation of the Act, and as long as they "redo" their vote in public, their decision can stand. But this misses the whole point of the Sunshine Act.

The purpose of the Sunshine Act is to allow the public to witness agency decisions and, with limited exceptions, the discussions leading up to those decisions. Allowing agencies to "cure" violations so easily deprives the public of any ability to understand how decisions were reached. And it provides very little incentive for agencies to follow the strict requirements of the Act.

Some agencies routinely conduct the public's business in private. They hold "informational sessions" and claim that because they are not making any decisions, they can conduct them in private. They bring in outside consultants to talk about school or government policy, but claim that because they are "gathering information" or conducting a "question and answer session" with the consultant, and not discussing the matter among themselves, they can hold the meeting behind closed doors. They pass out secret "board packets," and then vote on items without identifying or describing them to the public in attendance. They engage in "serial" phone calls or group e-mails, or take "phone polls" on issues.

The list goes on and on.

It has become obvious that the only hope for stopping these practices is to amend the Act to specifically prohibit them, and to strengthen the penalty provisions to create a real disincentive to violating the Act. The Act should make it even clearer that discussions, including informational sessions, must be open (unless they qualify under an executive session exception). It must specifically address e-mail communications, make it clear that agencies cannot "cure" a violation simply by retaking a vote in public, and require agencies to keep minutes or recordings of "private" sessions. That way, if they are found to have met in violation of the Act, the public will have the opportunity to witness and understand the agency's "secret" discussions.

In 2007, the Pennsylvania Newspaper Association will be collecting examples of Sunshine Act violations across the state. At the end of the year, we plan to organize the stories by region, share them with legislators, and use them to work for legislative changes to the Act. Anyone interested in sharing a Sunshine Act story should feel free to send it to the Pennsylvania Newspaper Association, 3899 North Front Street, Harrisburg, PA 17110, or e-mail it to terih@pa-news.org

Public officials are making critical decisions and committing your money to projects every day. They decide the salaries and benefits of public employees. They decide how much your local taxes are going to be. They decide when it is necessary to commit millions of dollars to a new high school, and they decide when and how much to pay to settle a lawsuit. Too often, the public is cut out of vital discussions and decisions. It's time to change that

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