Boosting Open Government With A Sunshine Commission

Pennsylvania has a very good Sunshine Law. Admittedly, such a statement might seem suspect to taxpayers, who regularly uncover secretive actions taken and decisions made by their public officials that appear contrary to the spirit and letter of the law. But carefully examine individual controversies, and most difficulties arise from faulty interpretations and minimal enforcement of Sunshine, rather than defects in wording.

Understanding how the law was designed and meant to be implemented sheds useful light on the current problems. The Sunshine Law was constructed to encourage compliance. The chief reason was all sides acknowledged enforcement would be contentious, costly, and time consuming. Actually, those words apply equally to the conception of the modern law. Five years of intensive debate and negotiation were required to craft legislation, get sufficient agreement among the principals inside and outside the legislature, and run it through the legislative process and have it signed into law. Nothing was rushed or given cursory consideration.

Time has confirmed emphasizing compliance was the right approach. Nevertheless, Sunshine advocates clearly underestimated two things. The first was the astounding legal contortions solicitors would use to give justification to officials who evade the spirit, letter, and plain meaning of the law. The second was the almost serial reluctance of those charged with enforcing the law to do so with any constancy or enthusiasm.

In a way, prosecutor reluctance to pursue Sunshine violations is understandable. Like it or not, defending the taxpayer interest does not rate the same investment of time and resources as chasing after criminal thugs, drug dealers, abusers, and fraudsters. Secrecy is not life-and-limb stuff; the loss is in public trust, which is not quantifiable in crime reports. While loopholes have been plugged and penalties for intentional violations have been strengthened, trying to provide greater incentive, it is hard to detect much improvement in policing. Not even when blatant or barely disguised violations offend and arouse citizens, public interest groups, and media watchdogs.

Frustration comes because complying with Sunshine is easy. Thought and effort must be poured into evading it. There is enduring mystery why the bulk of suspected Sunshine violations involve the actions of school boards. From the beginning, their state association offered the best and most complete explanation of Sunshine requirements and responsibilities. Obviously, good guidance does not guarantee compliant practices.

Somehow, we need to get off the treadmill of disagreement, litigation, disappointment, and dissatisfaction. After thirty years of practical experience, the standard remedies have failed to yield consistent enforcement or stronger deterrence of violations. A number of bills offered would materially improve the law, but they do not change the unfortunate dynamic of a system that presents too few real consequences for secrecy.

This was colorfully demonstrated when a city councilman flaunted a gem of arrogance: “Sunshine, grapevine, I don’t give a (darn). My vote will be in secret.”

So how does Pennsylvania get out of this box?

Early on, good government groups touted establishing a Sunshine Commission. In theory, this agency would do for open meetings what the recently constituted Office of Open Records (an inspired and functional operation) does toward resolving right-to-know issues and conflicts.

But the dynamic of open meetings is quite different from open records. The number of jurisdictions holding public meetings and the number of meetings held are imposing. Actions are not as tangible as physical records. A document can be legally defined more precisely than a decision. Actions have the crucial element of immediacy that records requests do not. It is not possible to instantly determine the facts and render a snap judgment on the legality of an action based on a one-sided oral description.

That does not rule out a commission entirely. Perhaps the answer is structuring a commission to take a less confrontational approach to breaking the knotty and unsatisfactory impasse surrounding Sunshine compliance and enforcement. To begin, make it broad-based in membership, pulling in state and local officials, solicitors from both sides of the fence, media representatives, citizen’s advocates, law enforcement officials, and judges. Give it an unconventional purpose – creating a forum for discussing and thrashing out Sunshine disputes. Citizens would benefit from having a direct, no-cost avenue for airing their concerns and posing questions. Plus, points can be conceded during discussions that are highly unlikely during formal litigation.

This Sunshine commission could:

*Serve as a clearinghouse for complaints. Central to this would be separating unintentional misunderstandings of the law from intentional misapplications of it. When a Sunshine violation hotspot emerges, such as Lancaster County seems to be in recent years, the commission could hold public input hearings.

*Issue advisory opinions, highlighting good practices and alerting to common inadvertent violations. In reality, not every violation is malicious in intent or democracy threatening in impact. The right to cure in law is a sensible way to fix the smaller errors and get things done properly.

*Make recommendations for legislative changes to the law, to close a loophole, or to give greater clarity to a commonly misinterpreted provision, or to address an unfortunate court ruling.

*Put out reminders when the intent of the law is frequently misstated. A case in point would be the admonition that executive sessions are allowable for specified purposes, not mandatory and not completely opaque as to content.

*Arbitrate differences to diminish litigation.

The best and the brightest can argue their way through different perspectives on how Sunshine should work, just as happened when the law was assembled. Again, on such an important public interest matter, why not attempt something different to defuse controversy, discourage secrecy, and divert litigation?

There is an additional truth and cautionary note to any Sunshine discussion. Following the law and spirit of open meetings is no guarantee that wise and responsible decisionmaking will result. Quality governance will remain something that taxpayers have to secure and enforce through the ballot box.

They will be better prepared to do that when they enjoy greater access to decisionmaking processes, which is the guarantee at the heart of an effective and functional Sunshine Law.

David A. Atkinson is an Associate with The Susquehanna Valley Center. He has worked extensively on Sunshine issues during his thirty-five years as a staffer for the state Senate.

Nothing contained here should be considered as an attempt to aid or hinder the passage of any Legislation before the General Assembly.

The views expressed here are those of the author and not necessarily those of The Susquehanna Valley Center.