A secret meeting, and a broken law

Published February 25, 2012

Last weekend, board President Karen Peetz and Vice President Keith Masser decided it would be a good idea to host a board “retreat”  in State College. And like any leaders who are committed to transparency, they decided to keep their gathering under wraps and deny its stakeholders a chance to be a part of one of the most important issues facing Penn State today.

Don’t tell anyone about the meeting. Don’t invite anyone into the discussion. And at all costs, break the law to get away with it.

Wait, what? Break the law?

This might be news to Peetz & Co., but Penn State has to follow the Sunshine Act, the law that governs public meetings in Pennsylvania. By holding this meeting, they broke it.

First, let’s look at the official Penn State press release about the meeting, which says the board met “to review options for its operating structure moving forward. No decisions were made and no business deliberations occurred.” Is a meeting about the future of its operating structure something that has to be open to the public?

Yes. To prove it, let’s consult the Sunshine Act. It says “official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless” it’s an executive session.

That means three things need to be in place before a meeting has to be open to the public: 1) The group has to take official action or deliberate; 2) there has to be a quorum, and; 3) it has to be an agency subject to the law.

Requirement number three is well established. Penn State and its sister state-related agencies are subject to the Sunshine Act.

But did official actions or deliberations take place? The press release says no decisions were made, which probably means no official action took place. But deliberations? Um, yes, they had deliberations. Here’s why.

Under the Sunshine Act, deliberations are “the discussion of agency business held for the purpose of making a decision.” So in order for the law to apply to this retreat, the trustees had to have been discussing “agency business,” while intending to make a decision about said business.

“Agency business” is “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.”

Now, back to Penn State’s official press release, which said the board was “reviewing options for its operating structure moving forward.” It’s pretty clear that qualifies as “preparing” to enact policies, unless the trustees had absolutely no intention of doing anything about their discussion.

So we know that 1) there was a qurorum at the rereat; 2) there indeed were deliberations about Penn State business; and 3) the tustees are subject to the open meetings law. Ergo, it had to be open to the public. Since it wasn’t, Peetz & Co. broke the law.

But none of this really matters. The board leadership promised to be more transparent, and one of the first things they did was hold a secret meeting about an issue that’s extremely important to many Penn Staters.

That’s what transparency looks like so far under Karen Peetz.