Friday, February 6, 2009

Right-to-Know Policy

On January 1, 2009, Pennsylvania’s Right -to-Know Law, commonly referred to as the Open Records Law, took effect. The original legislation which completely revamped Pennsylvania’s existing Right-to-Know Law was signed by Governor Rendell on February 14, 2008. The Law itself presumes that any record in the possession of a Commonwealth agency or local agency is public and the burden of proving that the record is not public is placed on the agency. The Law defines agency as any local, intergovernmental, regional or municipal agency and authority, counsel, board, commission or similar governmental entity. An agency would also include a political subdivision, intermediate unit, public, charter and/or cyber or trade school. The Right-to-Know Law applies to all Commonwealth agencies, however judicial agencies must only comply as to their financial records. The Law itself establishes an office of open record which bears the responsibility of developing regulations relating to the implementation of the Law, a uniform request form, determination of appeals from any denial by a governmental agency to a records request, establishing and approving fees as well as he enforcement of the Law and the issuance of advisory opinions to agencies concerning requests for documents.

As the Law relates to school districts, townships and boroughs as well as other local agencies, the Law provides in summary, that each develop policies and procedures for records requests, appoint an Open Records officer, provide contact information for their Open Records officer, develop a form for records request and established fees to be charged.

A record, as referred to in the legislation, is information which would include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, electrically stored or maintained information, data processed or image processed documents relating to the activities of the agency that are received, created or retained relating to the business or activity of the agency. Certain records are exempt such as a records that relate to the loss of funds, that might be harmful to an individual, that might impact public safety or might impact building security and computer security. There are additional exemptions set forth in the statute which can be reviewed on the Office of Open Records website,

The Right-to-Know or Open Records Law is a complete codification of previous legislation which had been designed to develop transparency in government but to many failed to achieve that goal. The current legislation will certainly be tested but should be applauded as a significant step in developing true transparency in government, for in a democracy a government of the people and the government itself as well as it’s records must be open to the people.

Submitted by:

James T. Davis, Esquire

“Anti-Nepotism Hiring Policies”

Much has been written about school boards and the hiring of school board directors’ relatives. Recently a local news editorial championed what it referred to as "Anti-Nepotism Hiring Policies". That same editorial commended a school solicitor for authoring a Letter to the Editor in support of such a policy.

The attorneys at Davis and Davis have, for more than three decades, represented school districts, townships, and other municipal bodies. We recognize that a solicitor, be it a school or municipal solicitor, does not serve in a policy making position. Policy determinations must be made by elected officials and not the attorneys hired to assist those officials in navigating the various and sundry laws that may apply to the actions contemplated by such bodies.
Whether you believe that anti-nepotism hiring policies are necessary or not, one must be reminded that the Pennsylvania State Legislature has addressed the issue of the employment of relatives by school directors as well as borough and township officials. The Pennsylvania School Code provides that no school director shall vote for a teacher candidate who is related to that member of the board. The list of relatives extends from a parent to a first cousin.

This provision of the School Code has been interpreted to mean that not only can a school director not vote for his or her relative, but cannot participate in the discussion and cannot solicit support from the superintendent or other board members. The entire discussion of Anti-Nepotism Hiring Policies fails to recognize the action taken by the Pennsylvania Legislature and the codification of that action in the School Code. Needless to say, similar legislation exists which is applicable to township supervisors, borough counsel members, authority members and similar municipal servants.

We at Davis and Davis remain cognizant of our role as solicitors and recognize changes in policy in a democracy must always be made by elected officials and not by the attorneys which they have employed.

Submitted by:

James T. Davis, Esquire