Closed budget briefing sparks Sunshine Act debate
The Legal Intelligencer
By Amaris Elliott-Engel
In a legal opinion over the state's Sunshine Act that has sparked some criticism, the City of Philadelphia Law Department has concluded that a quorum of City Council may meet with the mayor behind closed doors if city leaders don't establish policy or conduct debate that could lead to policy-making.
City Solicitor Shelley R. Smith wrote in an Oct. 23 memorandum to Mayor Michael A. Nutter that meeting with a quorum of City Council "to provide information on specific issues," but not to debate or set official policy, would be permissible under the Pennsylvania Sunshine Act.
Nutter can convene a quorum of City Council behind closed doors to brief City Council on financial matters, the memorandum said. The opinion was given to reporters who wanted to attend a budget briefing Nutter gave Oct. 23 in City Council President Anna Verna's office to a quorum of City Council.
City leaders are grappling with a city budget gap that could grow to more than $850 million. Nutter is expected to announce a budget plan today.
Some First Amendment lawyers say that Smith's narrow interpretation is taking the sunshine out of the Sunshine Act. But two former city solicitors said that Smith's interpretation strikes the appropriate balance between the public's right to know and the public servants' right to gather information away from tempestuous public meetings.
In the memorandum, Smith said that general discussion, informal questions and answers, sharing of information, fact-finding and information gathering are permissible in a closed-door meeting. The memorandum draws a line between permitting a closed-door meeting in which City Council discusses and debates issues informally and a closed-door meeting in which City Council takes official action or conducts official deliberation "for the purpose of making a final decision."
In meetings that do not take up official action or official deliberation, Smith concluded: "In the scenario here, subject to certain limits, the members of City Council would not appear to be deliberating or voting on agency business. So long as no official action is set and no official policy is formalized, the meeting would appear to be permissible."
Nutter wrote in The Philadelphia Inquirer Monday that the meeting in Verna's office was not for the purpose of deliberation and was not illegal. He noted that he has held two public briefings about the city budget and that many more public forums will be held.
"On occasion and for the sake of economy, whether at my request or at the invitation of Council President Verna, I meet with the entire Council," Nutter wrote. "When we meet, I make an informational update and make absolutely certain that we remain within the strict bounds of the Sunshine Act. As we have from Day One, we will continue to operate ethically and legally."
Robert C. Clothier, a partner with Fox Rothschild who concentrates his practice in First Amendment law and other media issues, said he disagrees with Smith's interpretation of the Sunshine Act. He said a closed-door discussion of the city's financial crisis is going to eventually lead to final decision-making about the city budget, and any such deliberation makes the Sunshine Act kick in. The act doesn't distinguish between "official deliberation" and more casual deliberation, Clothier said.
The public has the right to witness the thought processes of elected officials, Clothier said.
"She reads the word deliberation right out of the Sunshine Act," Clothier added.
While other mayors in the past might have gotten around the Sunshine Act by conducting briefings with smaller groups of City Council, such a maneuver "violates the spirit of the Sunshine Act, even though if it's not a quorum it may not violate the letter," Clothier said.
Clothier also noted that the city's Home Rule Charter also has its own rule requiring public access to City Council meetings.
Michael Berry, a First Amendment lawyer with Levine Sullivan Koch & Schulz who wrote a column in the Inquirer challenging Smith's Sunshine Act interpretation, said he was most concerned about a footnote in the memorandum that noted that "any violation can be cured at a subsequent open meeting where official action takes place."
"As a member of the public I'm flabbergasted at the suggestion that even if it is a violation that it's OK because the government can cure it by voting in the public later," Berry said. "The point of the Sunshine Act is for disclosure and deliberations to occur in plain public view, and the government shouldn't make any efforts to skirt the law."
Berry said he wants the Sunshine Act to be amended to make the law stronger, including letting courts block any policies made at closed meetings from proceeding until decision making is deliberated and voted on at an open meeting.
Malcolm J. Gross, of Gross McGinley in Allentown and who has handled Sunshine Act cases for newspapers like the Allentown Morning Call , said he found it unlikely that a legal closed meeting could be held just to discuss information about a budget crisis because such a discussion will ultimately lead to decision-making.
The original Sunshine Act allowed for closed meetings as long as votes weren't held behind closed doors, Gross said, and the act was specifically changed to disallow discussions behind closed doors that might lead to public policy decisions.
Discussions aren't "simply held in a vacuum with the information not going anywhere. That doesn't strike me as very likely," Gross said.
Mark A. Aronchick, a shareholder with Hangley Aronchick Segal & Pudlin and former city solicitor under former Mayor William J. Green, said that Smith has found the right place to draw the line between public access to officials' decision making and the need for officials to do methodical, considered fact-gathering.
"Believe it or not, the line is important to draw and it's often not obvious," Aronchick said. "As important as sunshine is, it's just as important that ... lawmakers can pursue a full understanding of what they're trying to make decisions about. Sometimes in short or open or raucous or contentious public meetings, it's not conducive to reflective, calm fact-gathering."
Aronchick said he was happy to hear the Nutter administration has conducted a private meeting with City Council during the most important budget process in recent years. He said the public could trust City Council to avoid official deliberations behind closed doors until council moves from the briefing stage of the budget crisis into the decision-making stage.
"They're not all one unified group of lemmings," Aronchick said. "They're very active, involved, brilliant people. ... They're going to know when they're past briefing and more into advocacy persuasion."
Pedro Ramos, of Blank Rome and a former city solicitor and managing director under former Mayor John Street, said the briefings behind closed doors are permissible under the Sunshine Act. And while there might be a policy debate over whether every single piece of information that informs public policy decisions is given in public, Ramos said it's a good idea to conduct some closed-door briefings to keep public officials informed on issues when they don't have a specific proposal in front of them to act on.
"I don't think that extreme is good policy," Ramos said. "I think that it doesn't hurt transparency and probably helps the deliberative process."
Smith said in an interview she finds it "absurd" to conclude that "simply because a quorum of City Council members is present, agency business or official action must be conducted." The law does contemplate the possibility that a quorum of a legislative body meets without taking official action, she said.
While the issue of a closed-door meeting with a City Council quorum could be avoided by briefing City Council in smaller groupings, Smith said that's just a way to get around the language of the Sunshine Act to avoid criticism.
In her view of the Sunshine Act, it shouldn't be necessary to perform "some kind of gyration ... when the caselaw gives us the right to do what we've done," Smith said.
She also said this analysis meets the Home Rule Charter's requirement for open meetings.
The proposed meeting "seems analogous" to the Commonwealth Court's ruling from 1989 in Conners v. West Greene School District, the memorandum said.
In the Conners case, appellant Barbara H. Conners challenged the West Greene School District's budget and authorization of a property tax increase, according to court papers. The Commonwealth Court found that Conners had presented insufficient legal facts to support her cause of action under the Sunshine Act. Conners based her challenge on a published news account, which reported that several of the school district board members had gathered together during a meeting recess to discuss the budget before it was approved later in the meeting, according to the opinion.
The Conners opinion noted that there is a "'substantial difference between discussion and deliberation'" and that the Sunshine Act didn't require school board members only to learn about the school's budget at a public meeting.
Berry countered that in another decision rendered in 1989 by the Commonwealth Court, Ackerman v. Upper Mount Bethel Township, in whichthe court found a violation of the Sunshine Act when a quorum of two of three township supervisors had an informal meeting with petitioners who wanted a zoning ordinance amendment.
Clothier said the Conners case is not on point because that case didn't involve a quorum of board members conducting a closed discussion.
Zack Stalberg, president of the good government group the Committee of Seventy and a past editor of the Philadelphia Daily News , said when he and others asked Mayor John Street's administration to conduct budget briefings in public, the Street administration skirted this Sunshine Act issue by meeting with subgroups of the City Council. But information tended to slip out of those multiple meetings, which gave the media and the public an idea of what was being considered, Stalberg said. Leaks are less likely in an en masse meeting, he noted.
Stalberg also said that he wished the Sunshine Act question had been reviewed by outside legal counsel instead of Smith, so the "mayor's lawyer" is not making the decision.
"The mayor ran as a reformer who believed in transparency and this is a transparency issue, so I would have preferred that he and the administration came down on the side of something somewhat more open," Stalberg said. "I understand it's inconvenient and difficult, but it's also not the transparent way to do business." •
By Amaris Elliott-Engel
In a legal opinion over the state's Sunshine Act that has sparked some criticism, the City of Philadelphia Law Department has concluded that a quorum of City Council may meet with the mayor behind closed doors if city leaders don't establish policy or conduct debate that could lead to policy-making.
City Solicitor Shelley R. Smith wrote in an Oct. 23 memorandum to Mayor Michael A. Nutter that meeting with a quorum of City Council "to provide information on specific issues," but not to debate or set official policy, would be permissible under the Pennsylvania Sunshine Act.
Nutter can convene a quorum of City Council behind closed doors to brief City Council on financial matters, the memorandum said. The opinion was given to reporters who wanted to attend a budget briefing Nutter gave Oct. 23 in City Council President Anna Verna's office to a quorum of City Council.
City leaders are grappling with a city budget gap that could grow to more than $850 million. Nutter is expected to announce a budget plan today.
Some First Amendment lawyers say that Smith's narrow interpretation is taking the sunshine out of the Sunshine Act. But two former city solicitors said that Smith's interpretation strikes the appropriate balance between the public's right to know and the public servants' right to gather information away from tempestuous public meetings.
In the memorandum, Smith said that general discussion, informal questions and answers, sharing of information, fact-finding and information gathering are permissible in a closed-door meeting. The memorandum draws a line between permitting a closed-door meeting in which City Council discusses and debates issues informally and a closed-door meeting in which City Council takes official action or conducts official deliberation "for the purpose of making a final decision."
In meetings that do not take up official action or official deliberation, Smith concluded: "In the scenario here, subject to certain limits, the members of City Council would not appear to be deliberating or voting on agency business. So long as no official action is set and no official policy is formalized, the meeting would appear to be permissible."
Nutter wrote in The Philadelphia Inquirer Monday that the meeting in Verna's office was not for the purpose of deliberation and was not illegal. He noted that he has held two public briefings about the city budget and that many more public forums will be held.
"On occasion and for the sake of economy, whether at my request or at the invitation of Council President Verna, I meet with the entire Council," Nutter wrote. "When we meet, I make an informational update and make absolutely certain that we remain within the strict bounds of the Sunshine Act. As we have from Day One, we will continue to operate ethically and legally."
Robert C. Clothier, a partner with Fox Rothschild who concentrates his practice in First Amendment law and other media issues, said he disagrees with Smith's interpretation of the Sunshine Act. He said a closed-door discussion of the city's financial crisis is going to eventually lead to final decision-making about the city budget, and any such deliberation makes the Sunshine Act kick in. The act doesn't distinguish between "official deliberation" and more casual deliberation, Clothier said.
The public has the right to witness the thought processes of elected officials, Clothier said.
"She reads the word deliberation right out of the Sunshine Act," Clothier added.
While other mayors in the past might have gotten around the Sunshine Act by conducting briefings with smaller groups of City Council, such a maneuver "violates the spirit of the Sunshine Act, even though if it's not a quorum it may not violate the letter," Clothier said.
Clothier also noted that the city's Home Rule Charter also has its own rule requiring public access to City Council meetings.
Michael Berry, a First Amendment lawyer with Levine Sullivan Koch & Schulz who wrote a column in the Inquirer challenging Smith's Sunshine Act interpretation, said he was most concerned about a footnote in the memorandum that noted that "any violation can be cured at a subsequent open meeting where official action takes place."
"As a member of the public I'm flabbergasted at the suggestion that even if it is a violation that it's OK because the government can cure it by voting in the public later," Berry said. "The point of the Sunshine Act is for disclosure and deliberations to occur in plain public view, and the government shouldn't make any efforts to skirt the law."
Berry said he wants the Sunshine Act to be amended to make the law stronger, including letting courts block any policies made at closed meetings from proceeding until decision making is deliberated and voted on at an open meeting.
Malcolm J. Gross, of Gross McGinley in Allentown and who has handled Sunshine Act cases for newspapers like the Allentown Morning Call , said he found it unlikely that a legal closed meeting could be held just to discuss information about a budget crisis because such a discussion will ultimately lead to decision-making.
The original Sunshine Act allowed for closed meetings as long as votes weren't held behind closed doors, Gross said, and the act was specifically changed to disallow discussions behind closed doors that might lead to public policy decisions.
Discussions aren't "simply held in a vacuum with the information not going anywhere. That doesn't strike me as very likely," Gross said.
Mark A. Aronchick, a shareholder with Hangley Aronchick Segal & Pudlin and former city solicitor under former Mayor William J. Green, said that Smith has found the right place to draw the line between public access to officials' decision making and the need for officials to do methodical, considered fact-gathering.
"Believe it or not, the line is important to draw and it's often not obvious," Aronchick said. "As important as sunshine is, it's just as important that ... lawmakers can pursue a full understanding of what they're trying to make decisions about. Sometimes in short or open or raucous or contentious public meetings, it's not conducive to reflective, calm fact-gathering."
Aronchick said he was happy to hear the Nutter administration has conducted a private meeting with City Council during the most important budget process in recent years. He said the public could trust City Council to avoid official deliberations behind closed doors until council moves from the briefing stage of the budget crisis into the decision-making stage.
"They're not all one unified group of lemmings," Aronchick said. "They're very active, involved, brilliant people. ... They're going to know when they're past briefing and more into advocacy persuasion."
Pedro Ramos, of Blank Rome and a former city solicitor and managing director under former Mayor John Street, said the briefings behind closed doors are permissible under the Sunshine Act. And while there might be a policy debate over whether every single piece of information that informs public policy decisions is given in public, Ramos said it's a good idea to conduct some closed-door briefings to keep public officials informed on issues when they don't have a specific proposal in front of them to act on.
"I don't think that extreme is good policy," Ramos said. "I think that it doesn't hurt transparency and probably helps the deliberative process."
Smith said in an interview she finds it "absurd" to conclude that "simply because a quorum of City Council members is present, agency business or official action must be conducted." The law does contemplate the possibility that a quorum of a legislative body meets without taking official action, she said.
While the issue of a closed-door meeting with a City Council quorum could be avoided by briefing City Council in smaller groupings, Smith said that's just a way to get around the language of the Sunshine Act to avoid criticism.
In her view of the Sunshine Act, it shouldn't be necessary to perform "some kind of gyration ... when the caselaw gives us the right to do what we've done," Smith said.
She also said this analysis meets the Home Rule Charter's requirement for open meetings.
The proposed meeting "seems analogous" to the Commonwealth Court's ruling from 1989 in Conners v. West Greene School District, the memorandum said.
In the Conners case, appellant Barbara H. Conners challenged the West Greene School District's budget and authorization of a property tax increase, according to court papers. The Commonwealth Court found that Conners had presented insufficient legal facts to support her cause of action under the Sunshine Act. Conners based her challenge on a published news account, which reported that several of the school district board members had gathered together during a meeting recess to discuss the budget before it was approved later in the meeting, according to the opinion.
The Conners opinion noted that there is a "'substantial difference between discussion and deliberation'" and that the Sunshine Act didn't require school board members only to learn about the school's budget at a public meeting.
Berry countered that in another decision rendered in 1989 by the Commonwealth Court, Ackerman v. Upper Mount Bethel Township, in whichthe court found a violation of the Sunshine Act when a quorum of two of three township supervisors had an informal meeting with petitioners who wanted a zoning ordinance amendment.
Clothier said the Conners case is not on point because that case didn't involve a quorum of board members conducting a closed discussion.
Zack Stalberg, president of the good government group the Committee of Seventy and a past editor of the Philadelphia Daily News , said when he and others asked Mayor John Street's administration to conduct budget briefings in public, the Street administration skirted this Sunshine Act issue by meeting with subgroups of the City Council. But information tended to slip out of those multiple meetings, which gave the media and the public an idea of what was being considered, Stalberg said. Leaks are less likely in an en masse meeting, he noted.
Stalberg also said that he wished the Sunshine Act question had been reviewed by outside legal counsel instead of Smith, so the "mayor's lawyer" is not making the decision.
"The mayor ran as a reformer who believed in transparency and this is a transparency issue, so I would have preferred that he and the administration came down on the side of something somewhat more open," Stalberg said. "I understand it's inconvenient and difficult, but it's also not the transparent way to do business." •
