Opinion: Sunshine Act is clear
From The
Philadelphia Inquirer •
Regional Commentary
By Michael Berry
Levine, Sullivan, Koch & Schulz
It's no secret that our economy is hurting and that the city needs to address a budget shortfall. So, recently Mayor Nutter and City Council met to discuss the budget - in secret.
That private meeting was no isolated incident. This was the third time this year that the public has been barred from city budget briefings.
Philadelphia does not stand alone in blocking public access to budget meetings. In September, Lower Merion Township's Board of Commissioners held its annual "budget workshop" behind closed doors, and other municipalities routinely discuss policy in private meetings.
These secret sessions violate a central tenet of good government - transparency. They also violate the law.
The Pennsylvania Sunshine Act requires that "official action and deliberations by a quorum" of council members "take place at a meeting open to the public." This mandate is simple and straightforward. If City Council votes on an ordinance or discusses city policy, it must do so in public.
The law itself could not be more clear. Indeed, the act declares that citizens have a right to "attend all meetings . . . at which any agency business is discussed."
Nevertheless, the mayor has taken the position that the public can - and should - be barred from his budget meetings with City Council.
Citizens should be outraged. When public officials talk about how to tackle a budget deficit, prioritize municipal spending, or discuss the intricacies of the city's finances, the public should be able to witness the discussion - even if that discussion simply provides a budget overview to City Council. It's the public's money after all.
So what can citizens do when they are shut out of the discussion? The short answer is not much. The Sunshine Act's enforcement provisions are shamefully weak.
A citizen can file suit when government meetings are closed. But lawsuits are expensive, and courts generally take a "no harm, no foul" approach, holding that any Sunshine Act violation is cured if the government voted in public, never mind that the public has no way to know what factors influenced the vote.
And although the law says that government officials who violate the law can be penalized, the penalty is only $100 and is rarely enforced.
The public should demand that the General Assembly give the Sunshine Act some real teeth.
First, the penalty for breaking the law should be increased. Last year, the state Senate passed a bill raising the penalty for first offenses to $1,000 and setting the penalty for subsequent offenses at $2,000. The bill also would bar the government from paying the penalty, forcing officials to pay fines out of their own pockets. These proposals would make government officials think twice about excluding the public. But the bill is stalled in the state House.
Second, if the government closes a meeting based on an unreasonable reading of the Sunshine Act, it should be required to pay the attorney's fees of any citizen who successfully sues to open up the meeting. The tremendous cost of challenging Sunshine Act violations stands as a real barrier to citizens seeking to vindicate their right to attend meetings and allows the government to run roughshod over that right.
Finally, the law should block any actions taken at meetings that violate the Sunshine Act, at least until government officials deliberate and vote at an open meeting. The government should not be able to ignore the Sunshine Act's mandate of openness and should not be rewarded for depriving the public of an opportunity to see its deliberations.
The General Assembly should put these three common-sense reforms near the top of its agenda when it returns to Harrisburg in January.
In the meantime, the public should demand more from our local leaders. With elections in two days, the economy teetering, and the financial future of our municipalities up in the air, this is no time for the public to be shut out of budget deliberations. As the Sunshine Act itself says, "Secrecy in public affairs undermines the faith of the public in government."
The public's right to attend meetings and witness policy discussions is vital to our democracy and critical to holding government accountable. Our leaders should be safeguarding that right - not guarding the door so the public can't get in.
By Michael Berry
Levine, Sullivan, Koch & Schulz
It's no secret that our economy is hurting and that the city needs to address a budget shortfall. So, recently Mayor Nutter and City Council met to discuss the budget - in secret.
That private meeting was no isolated incident. This was the third time this year that the public has been barred from city budget briefings.
Philadelphia does not stand alone in blocking public access to budget meetings. In September, Lower Merion Township's Board of Commissioners held its annual "budget workshop" behind closed doors, and other municipalities routinely discuss policy in private meetings.
These secret sessions violate a central tenet of good government - transparency. They also violate the law.
The Pennsylvania Sunshine Act requires that "official action and deliberations by a quorum" of council members "take place at a meeting open to the public." This mandate is simple and straightforward. If City Council votes on an ordinance or discusses city policy, it must do so in public.
The law itself could not be more clear. Indeed, the act declares that citizens have a right to "attend all meetings . . . at which any agency business is discussed."
Nevertheless, the mayor has taken the position that the public can - and should - be barred from his budget meetings with City Council.
Citizens should be outraged. When public officials talk about how to tackle a budget deficit, prioritize municipal spending, or discuss the intricacies of the city's finances, the public should be able to witness the discussion - even if that discussion simply provides a budget overview to City Council. It's the public's money after all.
So what can citizens do when they are shut out of the discussion? The short answer is not much. The Sunshine Act's enforcement provisions are shamefully weak.
A citizen can file suit when government meetings are closed. But lawsuits are expensive, and courts generally take a "no harm, no foul" approach, holding that any Sunshine Act violation is cured if the government voted in public, never mind that the public has no way to know what factors influenced the vote.
And although the law says that government officials who violate the law can be penalized, the penalty is only $100 and is rarely enforced.
The public should demand that the General Assembly give the Sunshine Act some real teeth.
First, the penalty for breaking the law should be increased. Last year, the state Senate passed a bill raising the penalty for first offenses to $1,000 and setting the penalty for subsequent offenses at $2,000. The bill also would bar the government from paying the penalty, forcing officials to pay fines out of their own pockets. These proposals would make government officials think twice about excluding the public. But the bill is stalled in the state House.
Second, if the government closes a meeting based on an unreasonable reading of the Sunshine Act, it should be required to pay the attorney's fees of any citizen who successfully sues to open up the meeting. The tremendous cost of challenging Sunshine Act violations stands as a real barrier to citizens seeking to vindicate their right to attend meetings and allows the government to run roughshod over that right.
Finally, the law should block any actions taken at meetings that violate the Sunshine Act, at least until government officials deliberate and vote at an open meeting. The government should not be able to ignore the Sunshine Act's mandate of openness and should not be rewarded for depriving the public of an opportunity to see its deliberations.
The General Assembly should put these three common-sense reforms near the top of its agenda when it returns to Harrisburg in January.
In the meantime, the public should demand more from our local leaders. With elections in two days, the economy teetering, and the financial future of our municipalities up in the air, this is no time for the public to be shut out of budget deliberations. As the Sunshine Act itself says, "Secrecy in public affairs undermines the faith of the public in government."
The public's right to attend meetings and witness policy discussions is vital to our democracy and critical to holding government accountable. Our leaders should be safeguarding that right - not guarding the door so the public can't get in.