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Dare Inquire Representatives Truth


THE LAW OF PENNSYLVANIA

PA Legislation: Sunshine Act Amended Oct. 1998


WHEN SOMEONE SAYS:

"Your lack of knowledge of the law reveals your stupidity."

Be armed with the knowledge of the Open Government and Meetings Law of the state of Pennsylvania.


Post-Gazette
Stronger open records law faces battle in Legislature
Sunday, March 26, 2000
John M.R. Bull, Harrisburg Correspondent
HARRISBURG
State Rep. Larry Roberts won't copy the floppy disc of his campaign reports for constituents who might be trying to dig up dirt on him.

When he files those reports on paper, which is required so the public can inspect them, he includes blank pages. That way, anybody getting a copy of his file will pay 50 cents for each blank sheet he's mixed in.

"I do it on purpose," said Roberts, D-Hopwood. "I'm not going to make it easy for them. There's some people I have told just to not come back to my office. I just don't like unscrupulous people going through this."

Roberts said he believed in open records only to a point. He regards himself as a typical public official in that way as the state Senate begins to listen to proposed changes that would strengthen the state's Right to Know Law.

The changes are fine in concept, he said, but safeguards must be built in to protect public officials from unfair reporters, political operatives looking to sling mud in a campaign and gadflies wanting negatives to use on talk radio programs.

Roberts said he expected to hear lots of blathering from fellow state lawmakers who say they support a new law, but that that didn't mean they would vote for it.

"It's an election year. A lot of people will talk about it, but few will vote for it," he said.

Lawmakers' records would be open to more scrutiny and "that's why I think most legislators wouldn't be in favor of it."

The bill, Senate Bill 1333, was introduced March 6 by state Sen. Stewart Greenleaf, R-Montgomery. The bill has picked up 13 Senate co-sponsors from both parties, one-third of the chamber.

The proposal is likely to be the subject of committee hearings this summer in the Senate and perhaps a vote later this year.

It is not a priority at the moment for some Senate Republicans, who are in the majority party. Budget preparation is going on now and there's an election in November to keep everyone busy.

In the House, the bill may face similar indifference.

House Majority Leader John M. Perzel, R-Philadelphia, said he supported the concept of reasonable access to state and local government records. But it is too early to say if he would support this bill if it were to be introduced in the House, said his spokesman, Stephen Drachler.

"We don't know what bill the Senate is going to pass or what they're going to send us," Drachler said.

Gov. Ridge was briefed repeatedly as the bill was written and supports the concept of an expanded law that covers documents that government agencies keep on computer.

"The governor shares the view that the law could and should be broadened," spokesman Tim Reeves said. "But when we really talk turkey line by line, he might have serious objections to parts of the bill."

Because Ridge's staff hasn't analyzed the bill, Reeves said he couldn't comment further.

The proposed Senate bill would repeal the 1957 state Right to Know Law, considered one of the weakest in the country, and install a sweeping measure that would establish a fundamental right to inspect and copy all government documents unless they are specifically exempted.

The burden, for the first time, would be on government to prove something is not a public record, not the other way around.

Under the bill, records kept on computer and in electronic databases would be deemed public records for the first time. E-mails pertaining to government business also would be public records.

A deadline for releasing information would be established, something currently not specified by the law.

The bill would mandate that simple requests for information be honored on the same day, and more difficult or voluminous requests within 10 days.

Fees for copying documents could be no higher than the rates charged by private businesses in a community. That would eliminate some public officials' use of fees to discourage information requests and to make a profit.

In Roberts' case, his floppy disc of campaign records would be considered a public document and he would have to copy it for any constituent, at the cost of a blank disk, said Kara Dolphin, director of government affairs for the Pennsylvania Newspaper Association, which helped draft the proposal.

Under the bill, a newly created Office of Access to Public Records would rule on disputes, saving residents from having to hire a lawyer and sue to obtain public records.

The proposed law would, for the first time, carry a penalty for those who willfully violate it. The fine would be $1,000 and the cost of attorney fees.

The bill is supported by various media groups, as well as Common Cause of Pennsylvania and the American Civil Liberties Union.

"Our experience has been that Pennsylvania's Right to K-N-O-W, is too often 'Right to N-O,"' said Richard Wyckoff of the Pennsylvania Association of Broadcasters.

A joint project last year by 14 newspapers, including the Pittsburgh Post-Gazette, found a wide disparity from agency to agency on what is considered a public record. One-third of requests were denied on grounds that the information was not deemed a public record.

"I was unable, no matter what I did, to obtain the salaries of principals in the Bermudian Springs School District in Adams County," said Dennis R. Heltzel, editor and publisher of the York Daily Record and chairman of the government affairs committee of the newspaper association.

"I would have had to file a lawsuit to get this information -- something that clearly is in the public domain."

Unlikely allies have been found in organizations that often are at odds with the media over what is a public record, including the Pennsylvania League of Cities, the Pennsylvania Municipal Authorities Association and associations for school boards, boroughs, townships and counties.

Those groups have wanted a new open records law for years and support the Senate proposal, said Doug Hill, executive director of the county commissioners association.

City and county officials are tired of fighting over what is or isn't a public record, he said. Most of the information requests to local government officials come from constituents, not the media.

"Now the only records that are open are paper records. You can't make a decision on what to do with e-mails when the bill was written in the day of typewriters," Hill said.

Records specifically exempted from the proposed law include personnel records, medical records, proprietary information about businesses, police investigation documents, drafts of bills crafted by state lawmakers and documents related to budget discussions among the governor's staff.

Many Western Pennsylvania lawmakers surveyed by the Post-Gazette said they supported the Senate proposal, also known as the open records law, as it is currently written.

"I don't have any fear about it," said state Rep. Thomas Petrone, D-Crafton Heights. "I don't know who would legitimately fear it."

State Rep. William Robinson, D-Hill District, took the same stance. "I'm 100 percent supportive of this. None of us representatives like the media combing through our expenses. They are very good at making us look bad. But open records reinforce the confidence of people in the ability of government to manage their money."

Other legislators said they had qualifications to their endorsement of the bill.

"Right now, on the surface, I would support this," said state Rep. Timothy Pesci, D-Freeport. "But if someone tries to sneak in an amendment that would exempt some particular office, like the attorney general's office, I would fight that. If the amendment passed, I would have to vote against the entire bill. It must be fair for everyone."

Computerized records should be treated the same as print documents, especially in this day and age, said state Rep. Joseph Preston, D-East Liberty. "What do we have to hide?" he said.

Numerous representatives said they could not comment because they had not reviewed the bill, noting that it has yet to be introduced in the House.

"I might like the first eight pages, but something later in the bill might blow it all up" for me, said state Rep. Harry Readshaw, D-Carrick.

State Rep. Frank Pistella, D-Bloomfield, said he did not like the Senate proposal, which he said could burden understaffed local governments with having to evaluate too much information to decide whether it should be released to the public.

He said it might be easier to amend existing law to specify that some computerized records are public records, instead of enacting a whole new law.

Also, a closer look should be taken at what documents are exempted from disclosure in the proposed law, he said. For example, he said, property assessment records would be considered open records, as they are now, but the House recently voted to prohibit their publication on the Internet.

"The issue is whether we can incorporate existing technology and the public's access to it through existing law," he said.




OBJECTION: YOUR RIGHT AT ANY PUBLIC MEETING OF ELECTED SERVANTS

Sunshine Law Section 710.1. PUBLIC PARTICIPATION (10.1) (280.1)(c) Objection:

Any person has the right to raise an objection at any time to a perceived violation of this act at any meeting of a board, or council, of a political subdivision or an authority created by a political subdivision.”

PUBLIC MUST BE ALLOWED TO COMMENT BEFORE VOTE

At Public Meetings

§ 710.1. PUBLIC PARTICIPATION. (A) GENERAL RULE.--EXCEPT AS PROVIDED IN SUBSECTION (D), THE BOARD OR COUNCIL OF A POLITICAL SUBDIVISION OR OF AN AUTHORITY CREATED BY A POLITICAL SUBDIVISION

SHALL PROVIDE A REASONABLE OPPORTUNITY

AT EACH ADVERTISED REGULAR MEETING AND ADVERTISED SPECIAL MEETING

FOR RESIDENTS

OF THE POLITICAL SUBDIVISION OR OF THE AUTHORITY CREATED BY A POLITICAL SUBDIVISION OR

FOR TAXPAYERS

OF THE POLITICAL SUBDIVISION OR OF THE AUTHORITY CREATED BY A POLITICAL SUBDIVISION OR FOR BOTH

TO COMMENT

ON MATTERS OF CONCERN, OFFICIAL ACTION OR DELIBERATION WHICH ARE OR MAY BE BEFORE THE BOARD OR COUNCIL

PRIOR TO TAKING OFFICIAL ACTION.

THE BOARD OR COUNCIL HAS THE OPTION TO ACCEPT ALL PUBLIC COMMENT AT THE BEGINNING OF THE MEETING. IF THE BOARD OR COUNCIL DETERMINES THAT THERE IS NOT SUFFICIENT TIME AT A MEETING FOR RESIDENTS OF THE POLITICAL SUBDIVISION OR OF THE AUTHORITY CREATED BY A POLITICAL SUBDIVISION OR FOR TAXPAYERS OF THE POLITICAL SUBDIVISION OR OF THE AUTHORITY CREATED BY A POLITICAL SUBDIVISION OR FOR BOTH TO COMMENT, THE BOARD OR COUNCIL MAY DEFER THE COMMENT PERIOD TO THE NEXT REGULAR MEETING OR TO A SPECIAL MEETING OCCURRING IN ADVANCE OF THE NEXT REGULAR MEETING. THE BOARD OR COUNSEL HAS THE OPTION TO ACCEPT ALL PUBLIC COMMENT AT THE BEGINNING OF THE MEETING.

19970S0254B2218




FAYETTE COUNTY COMMISSIONERS VIOLATE OWN RULES


Statement to board April 5, 1999


At the March 25, 1999 board meeting, I was raising an objection to the board’s proceedings under what I feel is protected speech.
Pennsylvania Sunshine Law Section Section 710.1 Rule (c)
(Pennsylvania Sunshine Act. 1986, July 3, P.L. 388, No. 84.
Amended SB 254 P.N. 2218, October 6, 1998)
Objection: Any person has the right to raise an objection at any time to a perceived violation of this act at any meeting of a board, or council, of a political subdivision or an authority created by a political subdivision.”
The law doesn’t say “only reporters, only lawyers.” The law says any person. The law doesn’t say when Commissioner Vicites recognizes the person making the Objection. The law says at any time at any meeting of a board.
After Agenda Item No. 25 was read, Chairman Vicites called for a motion. A motion was made and seconded. The seconded motion contained an acreage change proposed during the public comment period by Fayette Industrial Fund representative, Lori Omatick.
My initial objection concerned the negligence of the board to follow its own rules adopted July 23, 1998(Nos. 32, 34)
The rules were changed to necessitate for a majority vote of the board in order to alter or add items and to allow public comment on any altered or added item at the time of its alteration or addition before the board voted.
Though Commissioner Harry Albert did note the acreage change, he didn’t offer that the board amend the agenda, and then allow public comment.
The board continued its official action with a motion on the floor and in its official stage of discussion.
I now believed the seconded motion (now proposed to have another parcel of land included) without calling for public comment before official action is taken constituted a perceived violation of the Sunshine Law.
Refer to SB 254.
The situation could have been avoided had the board’s own rules been applied, and had the solicitor been present during the meeting and advised the board.
I want to know whether threatening to evict a citizen when a citizen is raising an Objection under Section 710.1 is a violation of the law.
At the meeting, after several threats of eviction, I was permitted to speak on one aspect of the original motion. Then the board continued to revise the original motion, and added a parcel of land not approved to be on the agenda. This was altering the item again.
As my citizen agenda items, first have the solicitor draft a board policy to permit such objection at any time during board meetings, so that citizens aren’t threatened with possible criminal charges for disorderly conduct when making such objection.
Second, it should be board policy to have the county solicitor, or assistant solicitor, present at all county commissioners’ meetings. When such Objection is made the solicitor will give an opinion on the Objection.
Also, often motions are not clearly made because of such alterations. The board should have the Chief Clerk read back any motions altered. The public should also be able to call for a clarification of the motion in such cases.

Faxed portion comments

There were other displays of negligence by the board:
The chairman permitted Ms. Omatick to speak longer than the allotted 2-minutes for public comment on agenda items, and permitted Ms. Omatick to speak again after a motion was made and seconded, and before claifying that public comment was now permitted without threat of eviction.
Does this action constitute taking additional testimony from the group representative seeking the rezoning?
Not only did the chairman violate the board’s rules not to let any person speak twice, the chairman did not clarify why Ms. Omatick was commenting again.
Could this action be considered taking additional testimony for a rezoning case, and is that legal? Should the case be reopened to take testimony from others?
I would also like the following addressed:
  • altering the acreage sought from 48 acres to 18.3, and pertaining to Commissioner Cavanagh’s motion to make passage of Item No. 25 contingent upon a legal review by the solicitor. What are the results of the legal review? When is the rezoning effective?
  • adding the rezoning parcel (M-1 to M-2) without allowing public comment before official action is taken.
  • whether the board’s violation of its own rules constitutes an additional possible violation of the Sunshine Law considering that the board did vote to have a policy that is in fact equal to the Sunshine Law?
  • whether evicting me while making a 710.1 Objection would have been a violation of the law?

    Sunshine Act. Section 10.
    Rules and regulations for conduct of meetings:
    Nothing in this act shall prohibit the agency from adopting, by official action the rules and regulations necessary for the conduct of its meetings and the maintenance of order.
    The rules and regulations shall not be made to violate the intent of this act.
    § 1111. Supplemental Provisions:
    Any governmental body may adopt requirements to supplement this chapter, provided that no such requirements shall in any way be less restrictive than the chapter.



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