Judge’s finger on sunshine switch

A Bloomsburg author’s challenge to a township agency’s claim of immunity to the state Right To Know law is in the hands of a Cumberland County judge. After about an hour of discussion, Judge Kevin A. Hess said he would “take it under advisement,” without specifying a possible time for a ruling.

Walter Brasch, of Bloomsburg, is an award winning journalist with a book due out next month about fracking in Pennsylvania. As part of his research, he made four requests in July for information related to the Pennsylvania State Association of Township Supervisors positions about Act 13, a law enacted last February related to fracking regulations and taxation in the state.

PSATS declined to answer, saying it was not required to make its internal workings available to the public. Brasch appealed to the state Office of Open Records, which ruled the organization was covered by the Right to Know Law. PSATS sued in Cumberland County Court.

In a hearing Tuesday before Cumberland County Judge Kevin Hess, PSATS General Counsel Scott Coburn said the organization “does not perform governmental functions for its members.” He acknowledged the organization was created by the legislature, and its members are township supervisors from more than 1,400 townships, but he pointed out membership is optional, and although the members are township officials, they “are under no similar mandate to incorporate or support those decisions when they return to their townships.”

“Nothing PSATS does binds them in any way to action or inaction,” Coburn said of policy decisions made by PSATS members.

PSATS also provides publications and training available to all townships, with different rates for members and non-members. Coburn said the organization is not funded by government money, (although dues are paid by townships, with money derived from taxation).

Coburn pointed out PSATS would not be required to reveal what income it receives, but “if someone wanted to know how much dues a township pays to PSATS, they can ask the township directly under Right to Know.

“Therefore, there is no benefit to applying Right To Know to PSATS,” Coburn said.

Terence Barna, of York-based Benn Law Firm, argued for Brasch that an agency whose governing body comprises entirely of government employees is “similar to a local authority.”

PSATS has membership comprised of public officials who meet annually to appoint officers to attend to the day-to-day business, Barna said.

“Although PSATS is not a traditional unit of government,” Barna said, the Pennsylvania Supreme Court has held that being a “traditional unit of government is not a deciding factor on whether (an organization such as PSATS) is subject to Right To Know.”

He argued decisions made by members who are, by definition, government officials, directly affect township policies – and legislative lobbying efforts which also affect township policies – and therefore should be exposed to the same light showered on any other government agency.

Hess ended the discussion saying he would “take the matter under advisement.”

“If the judge rules for us, then it’s over,” Coburn said following the hearing.

But he acknowledged a ruling either way could be appealed to a higher court, even including the state supreme court.

“What’s to stop a group of townships from creating a taxation group to decide how they would tax their residents?” asked Susan Schwartz, state Project Sunshine chairwoman for the Society of Professional Journalists.

All they would need do is claim the results of their members’ discussions were non-binding, and they could remain secret, she suggested.

The Benn Law Firm is working pro bono on behalf of the effort to apply Right To Know to PSATS and similar agencies. Schwartz said SPJ is paying any expenses Benn incurs in the court proceedings.

Hess did not set a date by which he would render a decision.