Sunblock: PA’s Worthless Sunshine Laws

Remember that time John Pearson and Pearson’s Girls® thumbed their collective noses at Pennsylvania’s Sunshine Laws?

“Oh, which time is that?” You may be wondering.  “There are so instances of questionable transparency.”

I’m talking about the most recent time, at the July 16 meeting, where John Pearson admitted, for the record and from prepared notes, that not only had a majority of the Board deliberated, but had decided, to take action on the future of the Upper Providence Rec Center.  As a refresher, here is Pearson’s speech (emphasis mine):

As chairman of this board, I take full responsibility for putting the cart before the horse on this fitness center issue.  You are right.  We should have been more transparent about our decision to re-purpose the rec center building.  We should have taken the time to give you, the residents, the courtesy of letting you know our intentions.  So here are our intentions.  We intend to purchase the equipment for $11,000 and not renew our lease for $38,000.  The fitness center will remain open until we come up with a comprehensive plan to re-purpose this facility in the next 18 to 24 months.  We will do another survey to see what the majority for our residents want and we look forward to any positive input that those here tonight would like to contribute.

You may recall (and if you don’t, please see HERE for a refresher) that both of Pearson’s Girls® doubled down on this statement, confirming, in fact, that not only had they deliberated upon the matter outside of a public meeting, but they had decided upon it as well.  I believe Laurie Higgins’ statement to that effect was that it was a “no-brainer.”

Walking on Sunshine

Pennsylvania’s Office of Open Records (OOR) defines the Sunshine Act thusly:

The Pennsylvania Sunshine Act, 65 Pa.C.S. §§ 701-716, requires agencies to deliberate and take official action on agency business in an open and public meeting. It requires that meetings have prior notice, and that the public can attend, participate, and comment before an agency takes that official action.

The Office of Open Records (OOR) does not enforce the Sunshine Act, but it does provide training on the law. Following are answers to the most frequently asked questions the OOR receives regarding the Sunshine Act.

The entire statute can be found at the link in the block quote and some FAQ’s can be found at the PA Office of Open Records website, HERE.

So if not the Office of Open Records, who DOES enforce Sunshine Laws and how does one go about getting them enforced? And what are the penalties?

From the FAQ section of the PA OOR website:

What legal remedies are available for violations of the Sunshine Act?

Section 710.1(c) of the Sunshine Act permits anyone attending a public meeting to object to a perceived violation at any time during the meeting. Additionally, for state agencies, a member of the public can file a complaint with the Commonwealth Court. For local agencies, a member of the public can file a complaint with the local Court of Common Pleas. Any complaint must be filed within 30 days of the public meeting in which the alleged infraction occurred. If the alleged infraction occurred during a closed meeting, the complaint must be filed within 30 days of the discovery of the infraction, as long as it is no longer than one year from when the meeting was held. The person alleging the infraction bears the burden of proof. See Smith v. Township of Richmond, 623 Pa. 209, 223 (Pa. 2013) (“[I]n view of the presumption of regularity and legality that obtains in connection with proceedings of local agencies, the challenger [of an agency meeting] bears the burden to prove a violation”) (internal quotation and citation omitted).

Are there penalties for violating the Sunshine Act?

Yes. In addition to being assessed attorneys’ fees, any member of an agency who is found to have willfully violated the act can face criminal charges and subject to fines of $100 to $1,000 for the first offense, and $500 to $2,000 for the second offense.

I called the Commonwealth Court last week about filing a Sunshine Law Violation complaint, and they directed me to the Montgomery County Prothonotary Office.  The gentleman who answered the phone told me that in order to file a complaint about a Sunshine Law Violation, it would have to have occurred within 30 days of the filing, it would have to be in a standard legal format with appropriate cover sheets (pick the correct form from here), and I would also have to pay a $290 filing fee.

When I confirmed that I, as a lay-member of the constituent public, would be responsible for producing a legal filing and paying a $290 filing fee in order to prosecute a violation that would generate, in all probability, a $100 fine (and no guarantee of recovering the filing fee), I asked, is that really the way it works?

The gentlemen from the Montgomery County Prothonotary’s Office said, “Unfortunately, that’s correct.”

As I mentioned in another blog post (HERE), it’s up to the public to keep an eye on our local elected officials.  There is no government watchdog organization reviewing clips of meetings for Sunshine Law violations; nor does it seem as if there is a really effective way for an ordinary citizen to demand accountability of his elected officials without an initial outlay of 3X the penalty.

So if there are no penalties, what is incentive is there for your local elected officials to remain honest and transparent?

Yeah.  I’m not coming up with anything either.

As a former elected official, I find it rather amazing that there is no real remedy in place for this.  Throughout my tenure, everyone made such a business of compliance with Sunshine Laws: our statewide Association PSATS (the Pennsylvania State Association for Township Supervisors), Township Managers and Township Solicitors.  We always took care to avoid violations, though it never stopped our political enemies from making those accusations by implication.  Back in those days the opposition relied on innuendo through Facebook, and on a couple of memorable occasions, allegedly hiring folks (or was it State paid overtime?) to follow us around after meetings.  Clearly, they came up empty, or you surely would have heard about it since Pearson himself attended the lions share of Board meetings in 2016 and 2017, and Higgins joined him for most of 2017.  But back in those days, they didn’t have the luxury of sitting back and watching the Board Chairman admit, from notes he prepared himself, that he violated Sunshine Laws and then have two other Board members confirm it.  Back in those days, if you wanted controversy, you had to create it out of thin air.

bonfireIt is one thing to try to convince folks that there is smoke where there is no fire; it is quite another to throw a log on an already roaring bonfire.

It seems that there should be some mechanism for the voting public to have these claims investigated by a non-partisan review board without the extraordinary fee structure.

On the other hand, without the fee structure, how would any organization be able to manage what would surely be an overwhelming the case load?  How would that oversight board be able to figure out which cases were legitimate and which were simply politically motivated frivolities?  How would such a government board remain impartial and objective?  Answer: they couldn’t and they wouldn’t.

So we are right back where we started a few weeks ago:  it’s up to YOU, the voting public, to keep yourself informed about local issues and hold your leaders accountable.

This is not the Transparency you were looking for

Perhaps a little refresher on the promises made by the political action committee, Upper Providence First, in service to expanding the Board. 2016:mullin fb

upt1st Zimmerman 110716

UPT1st1107TransparencyUpperProvidence 1st 1101716 FB

“Transparency” is a catchy campaign buzz word, isn’t it?

Oh, and hey, and here’s a fun little letter to the editor from John Pearson himself, stumping for his new position by promising more transparency while hurling thin accusations and outright lies:Pearson Letter to Mercury 110316

Here is Upper Providence First President, Jim White promising more transparency with the five member board:

White Letter to Mercury110716

Jim White, a Republican Alternate Delegate to the RNC, was unanimously voted in as the Board’s new Vacancy Chairman this year by a majority Democrat Board.

The full letters are linked below, as well as my response to Pearson’s accusations.  The Mercury would not let me defend myself against White’s accusations, stating that as an elected official, he could say whatever he wanted about me, but I could not call out anything he said as an outright falsehood, and they refused to print my response.

LETTERS_ Vote ‘YES_ to expand Upper Providence Board of Supervisors

LETTERS_ Too much whining by ex-Upper Providence supervisor

LETTER_ Upper Providence needs expanded board

Here’s another refresher from just last year, when the “Fresh Perspectives” team ran for office.  2017:

1MailersideB2MailerSideB

And let’s not forget that both John Pearson and Upper Providence First have some transparency issues of their own regarding campaign finance, as was detailed in THIS POST from earlier this year.

A Trip Down Transparency Lane

So now that we’re caught up on 2016 and 2017, let’s take a little trip down Transparency Lane in  2018 so far and see how the new Board has fared.

At the 2/5/18 Meeting, John Pearson neglects to read the names of the newly appointed members of the Act 209 Committee in a public meeting, one of whom is Joe Haney, Helene Calci’s husband.

At the 2/5/18 Meeting again, John Pearson says that he does not want the Township Solicitor to appear at the Zoning Hearing Board (contra the recommendation of the Planning Commission) to oppose the Cellco/Verizon cell tower application saying he wants them to be able to “do their thing,” this despite the prior Board recommending it.  Higgins and Calci vote right along with this without posing any questions, suggesting they had been briefed outside of the meeting.  The reasoning for this is ostensibly to let the Zoning Hearing Board come to an objective conclusion, however, Pearson does not disclose to the residents at the meeting that his long-time girlfriend/fiancée/common-law wife, Gail Latch, is a member of the Zoning Hearing Board.

At the 2/5/18 Meeting again, the Pearson, Higgins and Calci are adamantly against implementing a centralized Township ambulance, while all claiming they need more time to “study” the issue. How could they be so solidly against an issue that they admit they don’t know enough about to make a decision?

no sunshineAt the 3/19/18 Meeting, the issue of the Duhovis Farm preservation was discussed.  Pearson had voted against preserving this piece of property in his capacity as a Township Supervisor twice before and had now done an about-face on the issue, primarily because Higgins brought the issue back before the Board after it had been denied in October 2017.  Calci had no questions, but was a solid yes.  How did Pearson get from two previous “No’s” to “Yes” when no significant changes to the proposal were made?

At the 4/4/18 Meeting and at the 4/16/18 Meeting, the Special Meeting on Fire and EMS and the regular Board meeting immediately following it, the Democrats unanimously pushed for the idea of a Medic Responder over a Centralized Township Ambulance.  In the two solid years that the previous Board had debated this issue, the idea of having a medic responder as an alternative to a full service ambulance was never proposed or considered.  Bearing in mind that it was a brand new idea, and remembering that the Democrats’ whole reason for the 60 day delay was to “get educated” on this issue, miraculously, there weren’t any questions on the Medic Responder service from Pearson, Higgins, or Calci.

In fact, the entire Fire an EMS policy appeared to be dictated by the Democrats, who had no questions on the policies after asking for more time to “study” the issue only two months earlier.

At the 4/4/18 Meeting again, the slide show that was presented was introduced as “Staff’s Recommendations,” however, the slide show included a photograph specifically to illustrate Pearson’s usual morality tale, suggesting he had at least some input into “Staff’s” presentation.  And, as a later RTK filed by your humble Blogress revealed, there were multiple changes made from Staff’s original and the Slide Show that was passed off as “Staff’s.”  There were also emails between Staff and Pearson suggesting Pearson’s final approval was necessary.  Those differences were detailed HERE.

It should be noted that the Township’s Fire Chief has since resigned.

At the 4/16/18 Meeting, Calci and Higgins both take the unprecedented step of reading from prepared “signing statements” to approve the new Fire and EMS policy.  It was in response to these coordinated signing statements that Vagnozzi suggested that Staff had been bullied behind the scenes on the particulars of the new policy.

At the 5/21/18 Meeting, Pearson spends a large part of the meeting digging himself out of a hole to explain why he is having conversations with the Black Rock Fire Company “on his own personal time” about Township Business, specifically, improvements to the BRVFC Building that have not been discussed, much less approved by the Board.

At the 5/21/18 Meeting again, the Democrats present a united front on preventing the obvious inclusion of Township’s Fire Chief from holding a spot on the Fire and Emergency Services Steering Committee to Implement the Glorious Milestones on the Road to Fulfilling Campaign Promises made on Quizzo Night. 

At the 6/4/18 Meeting, Pearson again gets himself into a jam, having apparently talked to residents about the Spares Lane Development, skirts right up to the line of pay to play, then suggests that they have discussion on the particulars of the development somewhere other than at a Board Meeting.

At the 6/18/18 Meeting, yet another slide show is presented to the public as “Staff Prepared” regarding the future of the Rec Center.  Prior to this meeting, Rec Center members were emailed about the impending closing.  Barker notes that Public Works is scheduled to perform work at the Rec Center, but he has not been told what it is, nor has any public discussion taken place about the closing of the fitness center prior to emailing members about the closure.

At the 6/18/18 Meeting again, upon discussion of a fee waiver for improvements to BRVFC’s Oaks Fire Station, it becomes apparent that Barker is still not aware of the scope of the work that has been approved to move forward.

Which brings us to the 7/16/18 Meeting, where Pearson, Calci and Higgins all admit that they have had a discussion and made a decision about spending money on the Rec Center.

Some of these issues may have indeed been handled “by the book,” but surely, transparency was lacking.

While the 7/16 meeting provides the most egregious example of Sunshine Law violations—it’s basically a three-way confession—there is an established pattern of non-transparency throughout this Board’s short tenure.

But so what?

As we discussed earlier, PA’s Sunshine Laws have no teeth and nothing is going to happen to any of them, unless some wealthy resident feels like rolling the dice of justice and betting $290 with the Democrat-controlled County Courthouse. The worst this Board can expect is more unpleasant public meetings.

And maybe that’s enough.

More power to the Fembots

The question really is for Calci and Higgins.  Aside from the Duhovis Land Preservation vote, most of these controversies and votes listed above have been in service to Pearson’s own Personal Agenda of Petty Retribution and Political Favor Granting.  So far, either by their silence, their votes, or their words, both of Pearson’s Girls® have been 100% reliable and unquestioning yes votes for his agenda. As a consequence, they have also been exposed by Pearson’s sloppy political maneuvering and have had to take the heat for it at Board meetings, either from the public or from other members of the Board.

Is it worth it?  Is this why you worked so hard to win office?  To get beat up publicly for Pearson’s incompetence?

HigginsDoorKnockingIs this why Laurie Higgins spent the better part of her year last year knocking on doors while Pearson sat back at the Fitz, “holding down the fort?”  I think people sometimes forget that Higgins was actually the winner of the election last year, yet for some reason, both her and Calci seem to think they owe Pearson their unquestioning loyalty.  Higgins rarely speaks during meetings and Calci usually offers concilatory platitudes or excuses when Pearson’s agenda blows up.

Speaking from experience, I know this much to be true:  If you are doing municipal government correctly, partisanship and party affiliation shouldn’t have much of a bearing on the decision-making process.  There shouldn’t only be consensus on small things like grant applications, approval of minutes and EDUs.  If you are doing municipal government right, and operating with the best interests of the Township at heart, there should be more agreement amongst the entire Board on the big policy questions as well.

I get that Higgins and Calci are new to the Board, but municipal government is not rocket science.  They should have figured it out by now.  They should be doing their own homework, coming to their own conclusions, and speaking in their own voices, not submitting to Pearson’s assertions of “experience,” most of which involved his own conformity with the majority Republicans.  Pearson was never a leader on previous Boards, and if he did disagree with the Republicans he sat with, he was never effective at convincing anyone of his point of view.  In all the time I served with him, John Pearson never once threw a “no” vote, though he now seems spitefully hell-bent on undoing most of the good work for which he he voted as part of prior Boards.

CaptureThe residents of Upper Providence presumably voted for five points of view when they voted to expand the Board.  So far, we are only getting one point of view:  John Pearson’s.  And that is not the fault of Pearson, it’s the fault of Pearson’s Girls® and the unfettered support they have given to his agenda. Any meaningful public discussion of consequential Township issues has been effectively silenced due to their complicit participation in deliberations outside of the public eye, either as part of Pearson’s Secret Monday Meetings or elsewhere, and then made law by their meek compliance on the dais every first and third Monday.

So how much longer will Pearson’s Girls® continue to let themselves be controlled by him?

Perhaps when they figure that out, we’ll finally get that five member board we were promised.

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