Sunday, December 30, 2012

RIP: Government Transparency 12/31/2012

Last year at this time I was concluding my final term as a Lynn Township Supervisor. Heading into the closeout meeting, I invited incoming Supervisor Justin Smith to openly discuss his agenda with the Board. He largely declined the opportunity.

The following reorganization meeting, Supervisors Smith and Delong slashed former Zoning Hearing Board members in favor of wholly new appointments who had yet to appear before the Board in any capacity. The same resulted in a wholly new appointment to the Township’s vacancy board.

I have no problem with the Board’s privilege in appointments, even Justin's, especially during a reorganization meeting, but I do wish the process had been done more openly.

In my time, we took applications for consideration by the whole board. Applicants were asked to introduce themselves, so that the Board and the public could consider their appointment.

At that same meeting, Lynn Township ended the practice of recorded meetings.  They claimed the audio IC recorder was not compatible with the Township’s new computer system. New recorders themselves cost about $35.00.

This summer, Lynn Township took its clandestine maneuvering still further. The Township withheld public financial disclosure and secretly authorized the Township Solicitor to fight its demanded release.

No member took responsibility for the Board’s position, which was ultimately reversed by the State. The Pa Open Records Office called the Township's action absurd! Statements of Financial Interests are public documents, period -end of story!

The Township tried to right itself in September. The board voted to stream video of each meeting on the Internet, but that has yet to happen. To date, there is no Internet video; no not one on the Township's website.

In an unrelated matter, Lynn Township’s manager abruptly resigned. Heidelberg’s Zoning officer left previously under nefarious circumstances. Both positions remain vacant.

According to the Northwestern Press, unnamed persons from Lynn Township since approached Heidelberg Township regarding the possibility of sharing an administrator now that theirs [Lynn’s] has resigned . . . Supervisors agreed to arrange an executive session between the two Boards to discuss this.

I’m sorry, but a joint executive session to discuss general policy, even a general personnel policy is not legal. The personnel exception to the Sunshine Act pertains only to a specific prospective public officer or employee or current public officer or employee. See, 65 PA. C.S.A. Sec. 708(a)(1)

So if the two Townships want to share an administrator, that's fine, but talk about it openly. And by the way, they'll need an ordinance. Joint municipal agreements require ordinance approval! See 53 P.S. Sec. 66507.

Not too long ago, our school district superintendent instructed  its Board not to release pre-decisional documents until after the School Board's final vote.  That's pretty bad. Even Lynn Township releases most pre-decisional documents, especially those which may come to a vote.

The Northwestern Lehigh School Board will now also limit what you can say! One may comment only on subjects listed in the School Board’s meeting agenda. Do not speak if it is not on the agenda! They don't want to hear it!

The law does not side with the School Board. There is always the opportunity for “other business” to become before the Board. Most governments specifically advertise any other business, the School District notwithstanding.

By law, a board must provide residents and taxpayers with a reasonable opportunity at each advertised regular meeting and special meeting to comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action. Id. at 710.1(a) (Emphasis on the underline)

Lehigh County has its share of gaffs too. Consider the Commissioner's reorganization meeting last year. A video is posted here

Upon twice reaching an impasse on the selection of Chairman, Commissioner McCarthy moved to recess. During recess, the elected Commissioners formed two groups of three, and one group of two. They deliberated amongst themselves for a while in full view of the public.

Then the group of two traded places with corresponding members in the groups of three. The discussion continued. The gig was blatantly designed to get around Pa's Open Meeting Law.

Thereafter the Board reconvened and voted without impasse. The official video of the meeting moves to an empty podium, but you can catch a scant glimpse of the discussion around minute 22; this as the Board returned to their seats still taking amongst themselves.

I'd thought this blatant violation of the Open Meeting Law might be the real story for the evening. Alas once again, the Morning Call got it wrong. The predicted deadlock and mutiny did not occur, but they missed the real story there.

Which leads us to the County Budget impasse: during the budget amendment's second reading on October 24, 2012, Commissioner Chairman Brad Osborne limited individual public comment on the issue to "2-3 minutes" (video here). Yet department heads and other public employees were allowed to comment fully and freely. You can view the chairman's videotaped instructions here (beginning right around 1 hour 22 minutes.)

Again I caution, a government body can adopt facially neutral directives so as to permit the orderly flow of meetings. A government can not however adopt measures which have the effect of curtailing a message based solely on the message's content. Case in point: Just ask Mr. Toman (video 2hr 10 minutes).

Osborne's directive limited the public comment of budget objectors while letting budget proponents, including a sitting district attorney, an administrative judge etc., go wholly unheeded. Inequality in the speaker's treatment was further shown in the Chairman's public rebuke of Commissioner Ott (2 hours 4 minutes). How dare Ott interrupt Judge Banach with a point of order! Yet the Chairman had no problem limiting mere members of the public! See, video at 2 hours, 48 minutes (rebuking procedural dissenters by threat of removal).

It's fine to limit an individual's time to comment. Some people just don't shut up. But what's good for the goose is good for the gander. Treat them all equally in their period to speak regardless of message. After all, the Constitution gave us all equal rights to redress our government. It created no elite class.

Which takes us to the so-called fiscal cliff, a situation created by Budget Control Act of 2011 signed into law and once praised by the President. Nary a word of sequestration was spoken during the recent election, but hey, that's partly the voter's fault.

So we now have speakers of the House and Senate negotiating behind closed doors with the Administration. Closed door meetings give each the opportunity to blame the other.

As I see it, we don't have so much a revenue or spending problem as we have rather a really big lying problem. Nobody from either party has the balls to tell the truth, but rather each party works real hard to hide it.

Transparency is the light that kills those evils. Lets start with that!


eckville press said...

"At that same meeting, Lynn Township ended the practice of recorded meetings. They claimed the audio IC recorder was not compatible with the Township’s new computer system."

Show Me!

Eckville Press

No Bull said...

On January 4, 2012 Mr. Feinour ("Requester") sought from Lynn Township ("Township") a copy of the audio recording of the January 3, 2012 Lynn Township Board Meeting. ("Request"). A CD was included with the request.

On January 4, 2012 the Township denied his request asserting the Township's system used to make audio copies of the unofficial minutes was not compatible with the recently upgraded computer software. ("Denial letter").

On January 12, 2012 the Requester appealed to the Office of Open Records ("OOR") asserting the Township's denial letter failed to address the record requested and Mr. Deppe did not apply the true intent of the Law. ("Appeal")

On January 19, 2012, during the course of the appeal, the Township provided the Sworn Affidavit of Kevin Deppe, Open Record Officer, deposing "Since that denial, new software has been installed onto the Township computers removing the "bugs" which now allow the Township to create the audio file as requested by Mr. Feinour". ("Townships Response")

Perjury defined: act or crime of willfully giving false testimony or withholding evidence while under oath; a swearing falsely.

no bull said...

"This summer, Lynn Township took its clandestine maneuvering still further. The Township withheld public financial disclosure and secretly authorized the Township Solicitor to fight its demanded release".

One could argue there are no secretes. Mr.Deppe's ("Townships") May 21, 2012 and beyond phone records are public information.

Are we to assume the open records officer was having car trouble on May 21, 2012? Maybe they were planning a golf outing and needed tax-payer funded legal advice. You decide. Just making argument.

No Bull said...

correction: car trouble on May 21, 2012

No Bull said...

On February 13, 2012 Mr. Feinour ("Requester") sought from Lynn Township ("Township") a copy of the audio recording of the December 27, 2011 Lynn Township Board Meeting. ("Request"). A CD was included with the request.

On February 17, 2012 Kevin Deppe ("ORO") responded to his Request asserting "As the Open Records Officer for Lynn Township, I have determined that pursuant to 65 P.S. 67.902 subsection(a)(4), a legal review is necessary to determine whether the record is a record subject to access under the Right-To-Know Law Act, and subsection (a)(7), the extent or nature of the request precludes a response within the required time. A response is expected to be provided to you by March 12, 2012. I cannot provide you an estimate of the appliacble fees owed, if any, when the record becomes available because no determination has been made that such a record exist at this time and/or, if there is a record, whether or not it is a public record and the size of the record".

On February 18, 2012 Mr Feinour contacted DEP to ascertain whether the Township was current on their quarterly water test.

On February 28, 2012 Kevin Deppe ("ORO")
granted the Request, stating "Your request dated February 13, 2012, and received on February 13, 2012, requesting an audio of the December 27, 2011 Lynn Township Board of Supervisors meeting has been granted. The information has been placed on the disk you provided.

Mr. Feinour did not Appeal.