Trustees’ attorney responds

Lanny Davis’ defense of last month’s Board of Trustees’ closed-door retreat  stumped me. He took issue with the conclusions of some experts who question the meeting’s legality. I wrote about his defense last week.

But even with my vast knowledge of, and experience with, open meetings and open records laws, I just couldn’t understand his rationale. So I asked him to elaborate. Surprisingly, and pleasingly, he responded almost immediately.

As expected, his justification was fairly laughable. The Sunshine Act says that “deliberations” must be held publicly. Deliberations are “the discussion of agency business held for the purpose of making a decision.” But one of Davis’ associate attorneys – not Davis himself – advised board members that it was OK to deliberate in secret because trustees weren’t meeting “for the purpose of making a decision.”

The argument is ridiculous because right after the secret meeting was revealed, the board announced its intention to vote on the outcome of those discussions. So nobody believes they didn’t intend to eventually “make a decision” during that retreat. If board members didn’t intend to decide anything about what they were discussing, they wouldn’t have called 32 people to State College for a weekend.

I’ve listened to conniving attorneys make creative arguments about why meetings shouldn’t be public. They can do that, because there’s virtually no consequence to violating the Sunshine Act. But I’ve never heard this one before.

Essentially, Davis and his associate believe that in order to trigger a Sunshine Act requirement, somebody has to stand up and officially declare that the group intends to make a decision about something. It simply defies logic, is unreasonable and at least contrary to the purpose of the Sunshine Act.

We must elect people who know about and believe in transparency laws.  If elected, I will oppose all closed meetings that aren’t absolutely necessary, and whenever there’s a question about a meeting’s lawfulness, I’ll advocate for it to be open to the public, something every public official should do.

You can read our exchange below.

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On March, 15, 2012, Lanny wrote …

Dear Ryan:

The attorney for the Board advised the Board that the Board retreat was not held for the purpose of making a decision — the standard for triggering the Pa Sunshine Law’s requirement for public meetings– but rather was a working session to come up with some preliminary ideas on a variety of subjects.

He reasons that if “for the purpose of making a decision” were to be interpreted as applying to all discussions, then it would have no meaning — which is contrary to standard rules of statutory construction.

Meetings held by groups of Board members at the retreat were not for decision-making purposes and were not “committee” meetings until the Board votes, if it votes, to approve the new committees to come into existence.

That being said, I agree that there are grey areas of interpretation on which reasonable people can differ, ie, when a “discussion” becomes “for the purpose of making a decision” and when it is not for such purpose.

Sincerely,

Lanny Davis

And later that same day, I wrote …

Hey Lanny,

First, I have to thank you for taking the time to respond. You certainly have more important things to do with your day than get into an argument with someone who’s probably going to disagree with you no matter what.

Second, as I’m sure you know, there’s no such thing as a “working session.” It’s either a meeting or it’s not. Not that you were arguing that “working sessions” aren’t subject to the Sunshine Act, but attorneys oftentimes refer to the gathering as something other than a “meeting” to get around the law (ahem, a “retreat,” for example).

Third, I appreciate the admission of a gray area, however, I would hope that in those circumstances attorneys would advise their clients to err on the side of meeting in public instead of in private. Similarly, I would hope that members of public bodies would urge each other to do the same on their own. That rarely happens, unfortunately, especially in Pennsylvania.

Finally, your colleague’s reasoning is certainly creative, but ultimately incompatible with the Sunshine Act. It would allow any public body to meet privately about any matter so long as it hadn’t made an official declaration to vote, relegating everything but the actual vote to the back room. That is of course completely contrary to the purpose of the Sunshine Act, which gives citizens the right “to witness the deliberation, policy formulation and decision making of agencies,” not just the final vote. Discussions at the February retreat clearly constituted policy formulation, no matter how preliminary it may have been. And such discussion is exactly what the Sunshine Act intended to shine light on.

Nonetheless, your argument defies the facts surrounding the February retreat. This was a formal, prearranged gathering to discuss a particular topic. To say that so many people traveled to the same location for the purpose of deciding or doing nothing is, frankly, laughable. Public bodies don’t plan to meet without purpose. In this case, there was obviously an intent to decide something about the board’s structure, even if that something wasn’t clearly determined in advance or eventually turned out to be nothing.

For your argument to work, you’d have to answer the following question: at what point did the board or its leaders decide to make a decision? I’m sure you realize how ridiculous that question sounds, because people don’t decide to make decisions. We just make them, oftentimes after preceding discussions. Common sense holds that the decision to hold the gathering triggered the Sunshine Act requirements.

What’s so upsetting to those of us watching is the total disregard for transparency that continues to permeate this board. Your argument is far a stretch from the normal interpretation of what constitutes a “deliberation.” It is weak, an even irresponsible, especially in today’s climate.

When future circumstances arise, I ask that you urge your colleagues to advise the board to meet in public. There’s nothing to be afraid of. Trust me. It’s done all the time.

Thanks for listening, and hang in there.

-Ryan