by Benjamin Herold
for the Notebook and WHYY/NewsWorks
On March 17, 2010, 18 people showed up at the School Reform Commission’s public session to decry the District’s handling of a daylong series of attacks on Asian students at South Philadelphia High three months earlier.
Before the public comment period began, then-Chairman Robert Archie read a prepared statement. After the students and their supporters testified, former Commissioner Johnny Irizarry asked a few questions. And that was as far as the SRC would go in publicly sharing their thoughts on the episode.
“We tried to publicly engage the commissioners, but we were met with a wall of mostly silence,” said Ellen Somekawa, the executive director of Asians Americans United, who was there that day.
What the commissioners did not tell the South Philly High contingent, or anyone else, was that they had discussed the situation with then-Superintendent Arlene Ackerman earlier in the day, behind closed doors, as part of their “executive session” – the governing board’s private session before its public meeting.
That private conversation was just one of dozens over the past two and a half years that may have violated the state’s Sunshine Act, according to documents recently released by the District to the Notebook/NewsWorks.
The Sunshine Act, designed to ensure that public agencies conduct public business in the public eye, requires agencies to conduct all of their official business in public. In addition, groups like the SRC must hold any deliberations by a quorum of their members in public, with the exception of a few narrowly defined topics such as litigation, labor relations, and personnel matters.
But a review of the meeting agendas from 56 SRC executive sessions dating to April 2009 show that the School District of Philadelphia’s powerful five-member city-state board has regularly scheduled closed-door time on topics ranging from the District’s $3 billion budget to charter school renewals to bond issues. They have regularly received private briefings on presentations that District staff will later deliver publicly and scheduled private “Q&A’s” and “Commissioners’ Discussions” on non-permissible or unspecified topics. On occasion, they have also scheduled time on specific resolutions that they will later vote on publicly.
“It is unclear whether [the SRC’s] use of executive sessions is entirely appropriate,” said Melissa Melewsky, an attorney with the Pennsylvania Newspaper Association who reviewed the agendas at the request of the Notebook/NewsWorks. “My review of these documents leads me to believe that Sunshine Act compliance is an issue that needs to be addressed in [the Philadelphia] school district.”
Discussion or deliberation?
The March 17, 2010 agenda shows just how extensive the commission’s closed-door sessions can be. During that executive session, “South Philadelphia High School” was one of four “Hot Items” listed as part of a 75-minute “Superintendent’s Report” to the commissioners. Over the course of six hours, the commissioners were also to receive a report from Chief Business Officer Michael Masch, hear an update on the Renaissance Schools process, adopt a new procedure for handling student expulsion reviews, and hold 30-minutes of apparently open-ended “Commissioners’ Discussion.”
Subject to interpretation is whether the SRC was formally “deliberating” on these topics when they discussed them behind closed doors.
In a prepared statement, District Deputy Counsel Miles Shore stressed that the SRC has always taken official action in public and argued that “there is a substantial difference between discussion and deliberation.”
“It is the position of the SRC and the [District’s] Office of General Counsel that not all questions and answers, briefings and updates from staff to SRC Commissioners constitute ‘deliberation,’” wrote Shore. “Informally discussing …school issues at a closed meeting does not constitute a violation of the Sunshine Law.”
Nevertheless, the SRC, which is in the midst of a significant makeover, is serious about changing the way it does business, said interim Chair Wendell Pritchett. That includes streamlining its executive sessions and holding more discussions in public.
“I’ve served on many boards, and in general, the executive session is relatively short compared to the public session,” said Pritchett. “I think that’s where we should get to relatively quickly.”
The District’s decision to release the partially redacted meeting agendas to the Notebook/NewsWorks came during a remarkable week in which the three current members of the SRC set out to demonstrate they are serious about becoming more open.
Over the course of five days, the SRC and the District responded to a series of Notebook/NewsWorks requests. It made Pritchett available for his first extended one-on-one interview, granted a Notebook/NewsWorks reporter and photographer unprecedented access to an executive session, and released the documents.
“We’re trying to be as open and transparent as possible,” said Fernando Gallard, the District’s Acting Chief of Communications.
In releasing the 56 single-page agendas, the District’s open records officer argued that the District was not legally bound to make the documents public, but was choosing to do so in the interests of transparency.
Cause for concern
The outside observers contacted by the Notebook/NewsWorks applauded those efforts, but also said the executive session agendas are cause for real concern.
“Public officials have an obligation to comply with the Sunshine Act,” said Ellen Kaplan of Committee of 70, a local good government watchdog group. “I don’t understand why a number of these things were discussed in executive session rather than public session.”
As an example, Kaplan cited the SRC’s agenda from its executive session on October 20, 2010.
That day, the commissioners were scheduled to spend a total of two hours reviewing student expulsion cases and hearing a “Monthly Legal Report” – both unambiguously appropriate uses of executive session.
But they were also scheduled to spend three hours receiving a financial report and a 90-minute “Superintendent’s Report” covering the District’s new School Performance Index and its five-year strategic plan. All three topics were to again be discussed immediately afterward during the SRC’s public meeting.
“What was being said [in executive session] that couldn’t be said in public session?” asked Kaplan.
The agendas for other dates raise similar questions:
On August 12, 2009, the commission scheduled time for a “Briefing on Charter School Audit Findings and Charter School Resolutions.”
On February 24, 2010, they scheduled more than three hours for an “Update on the Upcoming Bond Issue,” a “Facilities Maintenance Report,” a “Transportation Report,” and an “OIG [Office of the Inspector General] Action Plan.”
On April 13, 2011, at the height of public controversy around last year’s Renaissance Schools matching process, the SRC scheduled time for then-Superintendent Arlene Ackerman to “Address Commissioners’ Questions on Renaissance and Charter Resolutions.”
In defending the SRC’s actions, Shore wrote that the Sunshine Law “does not require commissioners to inquire, question, and learn about school issues only at public meetings.”
He also pointed out that commissioners have regularly asked for and followed legal advice on Sunshine Act compliance from the District’s Office of General Counsel.
For years, local advocates have criticized the powerful governing board for holding important discussions behind closed doors. Whispers became roars after a Notebook/NewsWorks investigation revealed that former Chairman Robert Archie had participated in closed-door meetings about redirecting a lucrative charter school contract at Martin Luther King High – after publicly recusing himself from a vote awarding the contract due to a conflict of interest.
Notebook/NewsWorks previously reported that state Rep. Dwight Evans had been allowed into an SRC executive session to discuss the King charter deal. A later report by Joan Markman, the city’s chief integrity officer, blasted then-Chairman Robert Archie for facilitating Evans’s behind-the-scenes strong-arm tactics on behalf of a favored organization.
The public “has to have confidence that people in charge of an agency are conducting themselves ethically and openly and are not meeting in violation of the Sunshine Act,” said Kaplan of Committee of 70. “We need to trust that they’re only dealing in executive session with issues that are truly confidential.”
Violating the Sunshine Act is summary criminal offense. The penalty for first-time offenders was recently raised from $100 to $1,000.
But there is a one-year statue of limitations on Sunshine Act violations, and Melewsky of the Pennsylvania Newspaper Association said that criminal complaints rarely result in findings of specific guilt. Often, courts allow agencies to “cure” violations – for instance, by repeating in public a deliberation that was inappropriately held in private.
It’s a problem, said Melewsky, that “agencies ignore [the act] with impunity.”
New interim Chair Pritchett said the SRC will be reluctant to formally institute significant structural changes until its final two members are seated. Gubernatorial nominees Pedro Ramos and Feather Houstoun have been waiting for weeks for the Pennsylvania Senate’s Education Committee to schedule confirmation hearings.
But the rebuilt commission is well aware that demonstrating its new commitment to transparency will require an increased willingness to deliberate in public, he said.
“As a citizen myself, I understand the skepticism about how governmental decisions are made, because I sometimes share it,” said Pritchett. “The default should be that discussion happens in a public session.”