Pennsylvania Sunshine Act fails to ensure open meetings

Entwined in an unavoidable union with government entities, Pennsylvania residents are affected by the decisions of officials protected by the Sunshine Act which fails its mission of shedding light on government decision-making by allowing violations without adequate penalties.

Pennsylvania's current Sunshine Act, which took effect in 1987, requires "public agencies to hold certain meetings and hearings open to the public; and provide penalties," according to the law. The act covers many legislative governments on state and local levels, such as city councils and state school authorities. Under the law, government meetings can only be closed under certain exemptions, such as private information on a state employee being discussed.

To begin reforming the law, legislators need to impose stricter penalties for violations, stop allowing government entities to cure violations and include restrictions on electronic communication. These changes would protect the public from misuse of tax money and make officials more responsible for decisions by forcing compliance with the law.

"Almost from the day this law went into effect, the Achilles' heel has been the lack of meaningful penalties … We have seen public officials from different parts of the state unapologetically violate the [Sunshine] law," Pa. Sen. Lloyd Smucker said in a Jan. 26, 2009 Senate Republican news brief.

The law has failed to require public agencies to hold open meetings. Teri Henning, a lawyer for the Pennsylvania Newspaper Association (PNA), said in a Sept. 11, 2009 editorial on the organizations Web site that "some agencies routinely conduct the public's business in private." Henning also mentioned in the article that she hears hundreds of instances of closed meetings and secret decisions each year.

The law is clearly not working as it was intended. Rampant violations show government officials do not take the law seriously. One problem is the inadequate fine for an intentional violation.

Since the law was first imposed, the penalty for a violation has remained $100. Considering most traffic tickets cost more today, $100 is not enough to encourage government entities to take measures to deter violations. Information discussed in meetings could easily cost taxpayers more. Increased fines would encourage government entities to follow the law.

Smucker is the prime sponsor of Senate Bill 101 that supports increased penalties for intentional Sunshine Act violations from $100 to $1,000. The bill also proposes a fine for second or subsequent offences up to $2,000.

The bill passed the Senate and is currently in the Pennsylvania House of Representatives as House Bill 1324. It has been in appropriations since May 12, 2009. To become law, the bill needs to pass in the House and be sent to the governor for approval. Smucker also mentioned in the January 26, 2009 news brief that increased Sunshine violations was proposed last session. He said the bill died of neglect in the House of Representatives.

If the current bill stops making progress in the House, it will likely meet the same fate of the last proposal. Smucker is right in saying current penalties for Sunshine violations are not sufficient. A fine so minuscule as $100, without an increase for a second offence, does not make a violation appear serious.

In Pennsylvania Senate general assembly meeting on June 1, Smucker said current penalties "do not deter decision makers from erring of the side of secrecy." He further explained the Sunshine law does not justify enforcement by officials compared to other crimes.

The lack of enforcement is what allows violations to continue and possibly go unnoticed. This leaves the potential for information to be hidden from the public. Sunshine laws should represent a states dedication to transparency in government bodies. Without adequate enforcement, the current law is an illusion of transparency.

Also during the assembly meeting, Sen. Andrew Dinniman mentioned that he supports the proposed increase but is "concerned about the innocent public official who gets caught in the middle."

Public officials should be the last concern in making the Sunshine Act more effective. The Act is meant to protect the public, their tax dollars and freedom to information - not government officials' potentially misusing power.

According to the "Pennsylvania Legislator's Municipal Deskbook," a guidebook for legislators on how Pennsylvania municipal government operates, it is acceptable for a violation of the Sunshine Act to be cured by ratifying a decision made privately at a public meeting. This ability protects potential corruption in a government body by hiding the decision-making process.

"Allowing agencies to 'cure' violations so easily deprives the public of any ability to understand how decisions were reached. And it provides very little incentive for agencies to follow the strict requirements of the Act," Henning said in the PNA editorial.

The ability to cure a violation needs to stop. A bad decision by officials to close a meeting, or secretly hold it, without declaring an executive session under Sunshine Act guidelines should be penalized. It is unlikely that a regular citizen would be given a chance to "cure" a violation of any law. Government officials should not be an exception.

A third weakness of the Sunshine Act is the law does not specifically address electronic communications. With the increasing use of technology and the lack of a specific mention to electronic communication in the Sunshine law, a loophole may surface.

The Sunshine Act should specifically address electronic communication between government officials, such as e-mails, telephone conversations and text messages. Can a forwarded e-mail or text message between several members of a government body discussing official business be considered a meeting?