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Open Government can be so pesky
Submitted by Dan U-A on Fri, 05/02/2008 - 8:10am.
Open government can be a real pain in the butt.
It is something easy to promise during a campaign. And there are some facets of open government that are easy and palatable- like the Mayor putting his daily itinerary online. But, and I mean this without any sarcasm whatsoever- truly open government can be a real pain for those in power. That is true even for a new Mayor who I think genuinely believes in transparency and sunshine.
I bring this up because yesterday, this happened:
Mayor Nutter, who ran for office on a promise of making City Hall business more transparent, yesterday tried to have reporters removed from a budget briefing that he held for City Council.
A Nutter aide, joined by a police officer, insisted that the briefing was a private matter. Reporters, citing the state's Sunshine Act on public meetings, refused to leave.
After some debate, Nutter started the briefing by saying that the briefing could be private if Council didn't deliberate or make any decisions.
"I'm not going to waste anybody's time arguing about it," said Nutter, adding that he reserves the right in the future to hold private briefings.
Reporters remained for the 30-minute briefing.
The article summarizes the Sunshine Act pretty effectively, and I encourage you to read it. What they Mayor was trying to do was to get around the Act so that he and Council could negotiate on the budget, making any official meetings more formalities than anything else. This is a page straight out of the worst days of the SEPTA Board, where they would meet privately, decide to hike fares, then publicly come out and vote. It is unacceptable for a guy who campaigned the way Nutter did, with ambitious promises about how government would conduct its business.
I really hope those close to the Mayor will hold him accountable here, because his position- that he can meet in private as long as he gives a legalistic definition of "deliberations," is far from the best practices of open government that he promised. I don't think this means he is evil or doesn't think open government is a good thing. But, I do think it shows that certain promises are a lot easier to make when you aren't in power. And when you really have a couple things you would like to hash out with City Council without those damn reporters listening in, this is what you do.
Additionally, you can read between the lines a little and tell that the media present in the room felt bullied by the Mayor to leave (ie, the presence of the police officer, etc). So, to the City Hall press corp- from Patrick Kerkstra of the Inquirer, and Catherine Lucey and Chris Brennan of the Daily News, to Mike Dunn from KYW and Susan Phillips of WHYY (see her account at It's Our Money)- a big, big thank you comes from all of us who believe in both the importance of the media as a watchdog, and in open government generally.
Later today, we will have yet another official open records request for the City. In the meantime though, it is cool that members of the local media have the back of those who believe that sunshine is the biggest disinfectant.
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For the most part I agree
For the most part I agree with your comments. Even as a Republican I supported Michael Nutter's candidacy very early own, even donating a modest amount to his campaign. In fact, he is probably the only Democrat for which I have done that. However, your comment "I really hope those close to the Mayor will hold him accountable here" is completely misplaced.
Hoping that "those close to the Mayor will hold him accountable" sounds like something that you would wish for from the Soviet politburo, not a democracy. Its up to us THE VOTERS AND CITIZENS to hold him accountable. This is also another classic example of the problems of the one party system in this CIty and demonstrates the value of a "Loyal Opposition" in all levels of government.
Wally Zimolong
Maverick Republican for State Representative
182nd Legislative District
www.wallyzimolong.com
It's Our Money
Kudos to the reporters who stormed the meeting and demanded that the public have a right to know what's going on with our money.
WHYY reporter Susan Phillips was there and provided a first hand account to It's Our Money. You can read it by clicking here.
Very cool. Thanks for the
Very cool. Thanks for the link and the additional names. It sounds like Mike Dunn is a real troublemaker.
It was a briefing!
In my tenure on Council, this is how budget negotiations work:
1) Council's CFO develops a wish list from all Councilmembers' budget requests complete with fiscal impact.
2) Council leadership (less than a quorum) negotiates with the Mayor and reports back to Council.
3) Councilmembers are then broken up into 2 or 3 groups to avoid a quorum - and there are meetings to discuss feedback on the wish list.
4) Council revises the wish list - and the process repeats itself until there are at least nine members who agree on a budget - with or without the Mayor.
No Mayor is crazy enough to negotiate with all 17 members - it was a briefing.
The purpose of the briefing was to curtail Council's wish list by raising new fiscal concerns.
The Mayor probably didn't want a negative media spin on the fiscal concerns - hence, the need for a private briefing.
There was no chance that any negotiating could take place before the fiscal concerns or the Council wish list is finalized for discussion.
Once again, from my experience, the Mayor invites ALL councilmembers to briefings, but never invites ALL councilmembers to a budget negotiation.
And, for the record, Council has not privately met on the budget - unless I wasn't invited. :)
WWGjr
Clarification, councilman
The article linked says that there's a law prohibiting council from conducting public business behind closed doors. Are you saying that because it was a briefing, (or maybe because there wasn't a quorum?), it wasn't in violation of that law?
It wasn't our meeting...
15 of 17 members accepted an invitation from the Mayor to receive a briefing on new budgetary issues.
There were definitely enough members for a quorum ... but a quorum for what? It's against the law for a quorum to deliberate in private. That's not what we were invited to do and that's not what happened.
And because the media was present ... they can attest to what happened ... as opposed to what they thought was going to happen.
I received a letter from the Mayor asking me to attend a private briefing. I went - as did 14 other councilmembers. If 7 others had shown up at 2:30 - and then a different 7 at 3:30 after the first 7 had left- then it's OK for me to be there?
Yes. And it was OK with 14 other members in the room as long as there is no private deliberation.
Am I saying just trust us? No.
I'm saying we didn't break the law just because you don't trust us.
That's profiling. :)
WWGjr
With all due respect
With all due respect Councilman, you are wrong.
First, the Sunshine Act, 68 P.S. § 701, et. seq. defines deliberation as "the discussion of agency business held for the purpose of making a decision." 68 P.S. § 703. I found it hard to believe NOTHING was discussed that would ultimately lead Council to make a decision. In other words, deliberation - as Act defines - is not voting or the discussion of voting, as you answer seems to suggest.
Second, private meetings are against the public policy of the Sunshine Act which is "to insure the right of [the] citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon." 68 P.S. § 701(b).
Third, if it simply were a matter of trust then why even have the Sunshine Act? Perhaps you were speaking off the cuff, but asking the citizens to "just trust us" files in the face of not only the Sunshine Act but democracy itself.
Wally Zimolong
Maverick Republican for State Representative
182nd Legislative District
www.wallyzimolong.com
Whatever...
1)The purpose of the meeting was determined by the Mayor ... you should read my post a bit closer.
2)It was not an agency meeting ... you should read my post a bit closer.
3)I didn't say just trust us ... you should read my post a bit closer.
Maybe we should pass the "No REPUBLICAN Left Behind Act" to improve your blog comprehension.
You're not just wrong ... you clearly can't comprehend the legislative intent of the Sunshine Act.
But maybe you should sue us ... you might get some nice press before you lose the election.
WWGjr
I am not looking to sue
I am not looking to sue anyone - although the Act allows it - or to pull some sort of political stunt. I am not here to slam you because you are a Democrat, and frankly I do not even know what the "no REPUBLICAN Left Behind Act" comment means. I am just calling it like I see it.
I do not need to read your blog post closer or get better at blog comprehension. I have the Sunshine Act in front of me. The Sunshine Act controls not your blog post. The Sunshine Act defines "meeting" pretty clearly and I think what Council engaged in clearly falls within the definition.
I am not sure I really need to comprehend the legislative intent of the Sunshine Act. Its pretty much spelled out therein "the General Assembly find the right of the pubic to be present at all meetings of agencies and to witness the deliberation, policy formation, and decisionmaking of the agencies is vital to the . . . proper functioning of the democratic process." 68 P.S. 701(a)
Finally, the comment about me losing the election, well I would have expect a more civil comment from someone who has been elected to represent the citizens of the City of Philadelphia. But, maybe the ability to have a civil conversation about the interpretation of a law is another place where we differ.
Wally Zimolong
Maverick Republican for State Representative
182nd Legislative District
www.wallyzimolong.com
It was not an agency meeting ...
comprehend?
WWGjr
"Agency business" . . .
Is defined as:
"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." 65 Pa.C.S.A. § 703.
A meeting is defined as "[a]ny 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." Id.
The following are "official actions":
"(1) Recommendations made by an agency pursuant to statute, ordinance or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order."
Id.
It seems a bit gray, but honestly, if it was just a briefing--and not an instance where the agencies, i.e. city council or the executive branch were deliberating or taking "official action", then perhaps the Act doesn't apply.
I'm not going to prepare a brief on the issue, but if we are throwing out definitions, I figured I'd place them all out there.
I am working to elect Larry Farnese to the General Assembly. Unless otherwise expressly stated, this and every comment or blog I post on YPP and any action I take hereon is solely attributable to me and not Farnese or Friends of Farnese
Meeting Was a Meeting of the Agency
As someone whose objective is better information flow, more transparency and a more open government, and as one who has challenged government agencies on the PA Sunshine Act before, I understand both arguments of it being an open meeting and it not being an open meeting. That being said, I believe it is irrelevant as to whose meeting it was. The Act does not state that the meeting needs to be a meeting called by the agency in order for the meeting to be a public meeting. The Act states that a meeting is "Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency . . ." I believe the fact that a quorum of an agency was in attendance at the meeting makes it a meeting of the agency for purposes of the Act.
That being said, the Act itself is often recognized as being weak and is somewhat ambiguous in terms of some of the language in the Act not matching up well with the legislative findings in the Act. Hopefully the Act will be rewritten and strengthened as a followup to the new PA open records law.
You leave out a crucial part
You leave out a crucial part of the definition: " . . . held for the purpose of deliberating agency business or taking official action."
Either way, whos meeting it was many not have as much impact on whether it was an agency meeting. But, the intent of who called the meeting can be important in weighing the purpose of the gathering, the agenda and whatever is accomplished, if anything.
I agree with much of your last paragraph.
I am working to elect Larry Farnese to the General Assembly. Unless otherwise expressly stated, this and every comment or blog I post on YPP and any action I take hereon is solely attributable to me and not Farnese or Friends of Farnese
Perhaps more to the point?
There definitely seems to be some ambiguity as to whether the law applies to this meeting, such as it was. But another question is just why did Nutter object to the presence of press - especially given what transpired at the meeting? Particularly if the what happened in the meeting is what Nutter intended to happen - then his reason for trying to keep the press away is that much more confusing. If his intent was something other than what transpired (I don't assume that's the case since Goode said he was invited to a "briefing," and a briefing is what took place) then it would support the contention that in fact, his trying to keep the press away was defintely in violation of the law.
Councilman Goode makes an interesting comment:
I find the use of the word need troubling there. I don't think not wanting negative spin on fiscal issues trumps the public's right to have access to information. Why is there a "need" to keep there from being negative media spin?
I used the word "probably" ...
I don't actually know why the press wasn't invited but the law doesn't say that the public has to be at every meeting that the Mayor has - it applies to Council and other public agencies.
The Nutter administration has opened up more meetings to the public than previous administrations.
Is anyone suggesting that the Mayor can't have a private meeting ever?
Give him a break... it was a briefing.
WWGjr
Councilman, please correct me if I'm wrong, but you seem
to be saying that a meeting can be closed to the press simply because it's a "briefing." I think our lawyers would argue that a "briefing," by definition, is part of the preparation or deliberative process and thus subject to the Sunshine Act. The mayor can certainly have private meetings. What he can't do, in my opinion, is have a private meeting with a quorum of City Council in which the taxpayer's business is discussed.
It was the Mayor's private meeting ...
It was the Mayor's private meeting ...to which he invited all 17 members of Council.
No member of Council knows if at least 8 other members will show up to a briefing.
I attended several Mayoral briefings under the Street Administration where there were no media present - but there also was not a quorum.
We, as a Council, can't violate the Sunshine Act simply based upon the number of Councilmembers in a room - instead, the issue is why we are there and what we do while we are there.
In all sincerity, a lawsuit might settle this issue.
Once again, we shouldn't be accused of breaking a law because of what someone thinks we might be capable of doing - that might be called "profiling" in other circumstances.
For the record, I've introduced 51 bills during my tenure:
47 of the 51 have already been approved by Committee.
46 of the 51 have already been brought to a final Council vote.
45 of the 51 have already been signed into law.
44 of the 51 were uunanimously approved by Council.
Only 2 of the 51 never had a hearing
Only 1 of the 51 failed - and by only one vote (8-9).
And 1 more is pending a Committee vote that I expect to be favorable.
My point is - does my legislative record look like I need to violate the Sunshine Act to get things done?
No.
And I don't need to.
I prefer to do business on the Council floor.
But I DO have a concern about my lack of coverage in a certain paper this term. If you objectively compare it to a certain other paper, you might uncover an ethical issue right under your nose - with the reasons well-documented in that certain paper.
But I shouldn't accuse people of something simply because I think that they are capable of it - should I?
WWGjr
Again, councilman
The issue of legality notwithstanding, what I find particularly interesting is that Nutter seemed willing to risk ruffling feathers in order to prevent press from being present at a briefiing. To me, that doesn't make sense.
Sure, he has a right to have a private meeting - but why would he want to bar press from a briefing on the budget? You've suggested (by implication) that the reason (probably) would be that he wouldn't want the press to be at a meeting where information wasn't being spun in a particular direction. Numbers are numbers. They don't need to be spun. They shouldn't be spun. You present the numbers and then you give your spin in talking about how they should be interpreted. If you're concerned about "spinning" the numbers themselves, then you're presenting "mis-information." I'm expecting better than that from Nutter.
Ironically... there were no numbers... just a general briefing..
1) There will be a shortfall in real estate transfer tax revenue - no actual #s yet.
2) There will be a request for additional local revenue from the School District to cover their nearly $40m deficit - no actual #s yet.
3) The pension obligation bond legislation will not be offered during the budget cycle - and therefore, it will not produce the estimated savings in next year's budget - roughly $50m. (I read IN THE PAPER that pension investment yields will make up most of the difference). But no actual #s yet.
The purpose of the briefing - I suspect - was to curtail Council's budgetary wish list without creating major financial alarm publicly. It was the prelude to a negotiation.
I could be wrong.
But I'm definitely right about not being brought there to negotiate the budget - without any new #s.
It was what it was.
WWGjr
A side question
I thought the new state rules applied to all government in the state of PA outside certain exceptions (Police Department records being the noticiable exception). So reading elp's comment above about the new state laws language being stronger than the local ordinance in this one instance, wouldn't the stronger state law actually apply?
I'm not a lawyer and my question is more out of curiosity rather than related to this one meeting where I'm inclined to believe that the way in worked out was what the law actually intended in the first place.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Sunshine Act and Right to Know Laws Are Separate Laws
There are two separate areas and separate laws. The first is the PA Sunshine Act, which applies to meetings of agencies, which is available at http://www.pa-newspaper.org/web/2005/10/sunshine_act.aspx . The second area concerns right to know (i.e. access to public records). A new PA law in this area was passed earlier this year and it takes effect on 1/1/09, it is available at http://www.openrecordspa.org/pdfs/09RTKlaw.pdf . I do not have a link that is readily available to the current public records law. The issue in this matter is covered by the PA Sunshine Act. I suggested earlier that now that the new Right to Know Act has passed and corrected many issues in the old law, it is time to work on the Sunshine Act to fix some of its flaws and remove some its ambiguities.
Thanks
Thanks for the useful clarification.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.