Sign the Petition To Amend the PA Sunshine Act
Approve Legislative Proposal to Reform Pennsylvania Sunshine Act.
We the York 912 Patriots have drawn a legislative proposal to request our state legislator from YOrk County to advance in the session. The proposal is regarding several fundamental changes to the Sunshine Act that would make the rights of the cisizen paramount over the rights of the local governmental entities as to our rights to transparance. If you would like to sign your name in support, you may do so here. Our intention, after March 31st is to send this to Scott Wagner, Kristin Phillips Hill, Mike Folmer, Seth Grove, Keith Gillespie and Stan Saylor.
The full text is below:
Randy Covington 904-413-3768
10 Candlewyck Ct.
York, PA 17402
Legislative Proposal to Amend Certain Portions of 65 Pa.C.S.A. - The Pennsylvania Sunshine Act
The current statutes findings and declarations of 65 Pa.C.S.A. § 702. are excerpted below.
(a) Findings. � The General Assembly finds 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 and 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.
(b) Declarations. � The General Assembly hereby declares it to be the public policy of this Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this chapter.
In reality, the law is not given the deference intended by the legislature that is necessary to the implementation of the will and intent of the state legislature and the people of Pennsylvania who supported this measure, because of a defect of consequence in the penalties established in section 714. They are:
There is a two pronged approach to enforcement to the provisions of the statute. First, there is the provision that is excerpted immediately below:
65 Pa.C.S.A. § 713. Business transacted at unauthorized meeting void
“A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. The court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any or all official action taken at the meeting shall be invalid. Should the court determine that the meeting met the requirements of this chapter, all official action taken at the meeting shall be fully effective.”
Citizens may seek the intervention of a court to overturn any action undertaken by the governing body that is taken outside the boundaries established by the statute. This places an undue burden on citizens to by requiring them to invest of their own means to pursue relief in a court of law. Secondly, allowing only 30 days after the meeting is too short a time for citizens to gather the evidence they would need.
It also allows the imposition of legislative provision on the rights and condition of citizen that may have been blatantly illegal and outside the bounds and intent of this statute because there is such a short period provided for the filings of relief. This is especially so as the statute provides no safety mechanism to allow proper discovery and formulation of a case in pursuit of seeking the intervention of a court in reversing the course of action the offending body seeks to impel on the citizens of its jurisdiction. This could be especially egregious in effect if the body took efforts to conceal the illegality of the acts and obstructed or concealed the facts beyond the 30 day recision period.
Additionally, an arrogant and unrestrained governing body, emboldened by an imbalance in the provision of leverage where it is due is further compounded by a lack of personal consequence for the actions taken in contravention of the legislative intent and findings of this law. To wit, the only personal penalty an offending elected official may face in violation of the statute, which is proclaimed as “vital to the enhancement and proper functioning of the democratic process”, is stated in the section excerpted below:
§ 714. Penalty
Any member of any agency who participates in a meeting with the intent and purpose by that member of violating this chapter commits a summary offense and shall, upon conviction, be sentenced to pay a fine not exceeding $100 plus costs of prosecution.
First and foremost it is imperative to correct the imbalance in this statute by the following actions:
First, by amending 65 Pa.C.S.A. § 713. to establish an automatic injunction process to suspend the actions of the body to provide adequate time for the processing of Right to Know requests and to allow aggrieved Citizens to present more robust opposition more fully expounding the nature of the violation and grievous injury that may flow from the actions of the governing body. A more sensible period would be to provide an automatic stay of implementation of the action for ninety days after the agency has fulfilled any request for records filed within 30 days after the meeting in question.
During this period, the court should also be compelled by the amendment to provide automatic discovery and subpoena requests to ordinary citizens and citizen representative groups to be used to discover the full circumstances and facts that have lead them to believe a violation has occurred. In deference to equity the court should balance the mere potential for the imposition of burdens on the citizens with more weight than any expressed damage that may be expressed by the governing body for a delay in its enactment or imposition of the the provisions of its disputed action. At the end of the thirty day stay, the court should render its judgment on whether or not to allow the act to proceed. If he finds the governing body acted in violation of the statute, he should vacate the action and prevent its imposition.
Additionally, this provision to the current statute should be extended to provide that if it is subsequently found at any time after the imposition of the action of the body has occurred in violation of this statute that all provisions are void and any contract that arose of the action is deemed to have never existed.
Secondly, the willful violation of this law by an elected official may subject them to prosecution for the commission of a third degree felony under Pennsylvania law based on a referral by the judge to the local district attorney for an investigation as to the full facts and circumstances of the action of all parties. The fine for willful violation based on a finding by the judge shall be set to a minimum of $2,500.00 for each occurrence and a waiver of any protection of sovereign immunity that may attain to an elected official under state statute. The law should be extended to prohibit the discussion of the issue by and between any two or more members of the elected body until the issue is heard at a public meeting and then only in the course of public meetings until the issue has been settled.
In order to provide better opportunities for citizens to monitor their local boards, commissions and governments, an additional section should be amended to require the audio recording of all meetings by entities subject to the statutes and for them to make these available on the internet within 14 business day of the meeting.
Next, in any revision, in the findings clause, it should reflect that the right of the public to request and obtain the records regarding and issue decided by a public body, or heard and discussed at any level between the government and any applicant before the body, are recognized to supersede any compelling interest a body may cite in attempting to reject a records request, unless specifically in alignment with exemptions drawn by the State Legislature.
The correct procedure to enable the citizens to obtain relief in their rights is to state a process of filing mandamus specific to records request where a citizen can file with the court and allege the existence of records based on on some objective evidence and mandate that the courts are bound to compel the entity to produce the records forthwith if the court determines there is sufficient evidence the records exist and further ordering that the governing body deemed to have the records and having refused to produce them be “required” to reimburse the citizen filing the action in full for reasonable attorney fees and filing expenses. Upon the finding by the court their exists records required for production, the implementation of any action in dispute cannot occur prior to 90 days after the fulfillment of the order to produce records.
The stated presumption under law should be that the “compelling interest” of the state is in fully informing the citizenry and making transparency supreme over any interest, short of narrowly drawn exemptions of “compelling interest” Established under state statute.
One item that must also be changed in the statute would be to make all negotiations of collective bargaining agreements by public entities and their employees must occur in the public realm. The right of the public to attend shall not be infringed, although they cannot have any right of participation and are restricted in comment in the public meetings where the contract is to be discussed. Further, the legislation should also state that all collective bargaining agreements agreed to must be read twice and allow for hearing public input prior to any vote to accept the agreement by the full body.
Specific provisions should be included for exemptions where their is a compelling interest to conduct business outside the public eye but preserve fully the public’s right to know. As an example, discussion with legal council regarding litigation or personnel actions.
In such an instance, provide in the statute for executive sessions which must conform to the following:
Prior to occurring, must be on the agenda at the opening of the meeting and announced at the beginning of the meeting as to the date and time the executive session will occur.
The executive session must be recorded on audio tape minimally. A verbatim transcript of the meeting must be made from the recording if the matter or matters under consideration in that session may produce either a termination of personnel or result in any potential damages exceeding $50,000 or result in a contract that would amount to more than $100,000. The transcript and recording of the meeting are to remain in the custody of council until the matter has been resolved by a settlement by all parties, or an official ruling by the courts settling that issue.
Once so resolved, the records from all executive sessions are to be released to the public. There can be no right of confidentiality agreed to in any settlement or ruling that would extinguish this provision.
We the undersigned, as citizens of the Commonwealth of Pennsylvania respectfully request you consider advancing this as legislation for the protection of the rights of all citizens of Pennsylvania and in the spirit of fostering greater transparency for and participation by the citizens.