Article By: Bernie O’Hare Special to the Bethlehem Press
Northampton County Council has been discussing the future of its Department of Community and Economic Development, but has been doing so in the back room. Not the proverbial smoke-filled back room. These days, it’s a cyber back room.
Documents obtained in response to a Right-to-Know request reveal council members are busy exchanging emails about the sudden departure of Director Diane Donaher and Executive John Brown’s plan to replace her with Tim Herrlinger as acting director. They are also bothered by a lack of production in that department. But by discussing these matters among themselves instead of during an open meeting, they may have run afoul of Pennsylvania’s Sunshine Act.
This law makes sunshine a disinfectant to bad government. It declares that “the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision making of agencies is vital to the enhancement and proper functioning of the democratic process. It goes on to say that “secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.”
Though most of the emails reviewed are innocuous, council members did engage in deliberation, defined in the Sunshine Act as the “discussion of agency business held for the purpose of making a decision.” John Cusick told the entire council that they need to approve the acting director appointment by resolution. Ken Kraft said that such a vote would usurp the executive’s power to appoint an acting director. Bob Werner said he would oppose any acting director appointment and went on the complain that “there has been little presence, if any, at our council or committee meetings and we have had little or no updates as to what has been accomplished or what the committee as a whole has done or is working on.”
All of this appears to be deliberation, and the Sunshine Act makes clear that “[o]fficial action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public.” Emails to all members concerning council business appear to be invitations to participate in what might be called cyber meetings.
This was happening in Luzerne County in 2013. Though there was no litigation, the Pennsylvania NewsMedia Association condemned the practice.
Several council members contacted about these exchanges acknowledged the need to discuss these matters openly and vowed to be more careful in future exchanges. These email exchanges were produced almost immediately after they were requested.