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Private Allegheny County Council meeting draws transparency questions

Theresa Clift
| Friday, Jan. 20, 2017, 6:36 p.m.
Pat Catena is sworn in to Allegheny County Council Tuesday, January 17. He will serve in the District 4 seat vacated by Michael Finnerty until November.
Theresa Clift | Tribune - Review
Pat Catena is sworn in to Allegheny County Council Tuesday, January 17. He will serve in the District 4 seat vacated by Michael Finnerty until November.
Allegheny County Council President John DeFazio
allegheny county council
Allegheny County Council President John DeFazio
Allegheny County Council member Jim Ellenbogen Tuesday, April 21, 2015.
Heidi Murrin | Trib Total Media
Allegheny County Council member Jim Ellenbogen Tuesday, April 21, 2015.

Allegheny County Council Democrats skirted the Pennsylvania Sunshine Act when they met in secret Monday to select a new council member to fill a vacancy, a media law expert says.

Council Democrats, who hold a strong majority over Republicans, held an unadvertised evening meeting at the county courthouse where they interviewed two candidates and selected Pat Catena , a former Carnegie councilman, who will serve until November in the District 4 seat vacated by Michael Finnerty.

The Sunshine Act outlines several reasons elected officials are allowed to meet behind closed doors, including certain matters involving county employees (personnel matters), but meetings involving appointments to elected bodies always have to be open, according to the act.

“The provisions of this paragraph (closed sessions allowed for personnel matters) shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office,” the act reads.

Reached Tuesday, County Council Solicitor Jack Cambest defended the closed meeting.

“They've filled a lot of vacancies (on council), and this is always the way they do it,” Cambest said. “Nobody has ever asked that question until right now.”

When asked whether he would advise council to change its practice, Cambest said no.

“I think as long as their discussion was to place it on the agenda (for the council meeting), who to suggest to appoint, it's all right,” Cambest said Tuesday before a regular council meeting . “They will vote, discuss and deliberate it tonight.”

But that's not exactly what happened.

After the meeting was called to order, Council President John DeFazio, D-Shaler, called up Catena — who the Democrats selected the previous night to fill the vacancy until the November general election.

“At this time we would like to place Pat Catena to take the vacancy of Mike Finnerty.”

“We have to vote first,” several members reminded him.

A quick unanimous vote followed, with no discussion.

“We didn't really have to do that, but I did it anyway,” DeFazio said with a laugh.Catena was sworn in, then took his seat at council's horseshoe-shaped conference table. A placard with his name on it awaited.Even though the full council technically voted during the public meeting to make the appointment, the vetting of both candidates — their interviews and the members weighing their merits — should have been done in the open, said Melissa Melewsky, media law counsel for the nonprofit Pennsylvania NewsMedia Association in Harrisburg.

“There's no exemption (in the Sunshine Act) that allows that kind of discussion to take place privately,” Melewsky said. “They're damaging the public's ability to witness deliberation, and that harms the public trust.“These elected officials are stepping into the shoes of the public by filling an elected office. The process should be entirely public: the names of the people pursuing the office, their qualifications and any materials they provide,” said Melewsky, adding she knows of local government bodies in the state that handle it that way.

DeFazio, who called the closed caucus meeting, said he defers to Cambest on legal issues but that he would talk to him about the issue.

“This is just the way we've always handled it,” said DeFazio, who has served on council since it was founded in 2000. “But I don't want to try to go around the rules. I don't want to violate anything.”

Councilman James Ellenbogen, D-Banksville, said he also defers to Cambest on legal matters.

“I'm not in a position to question Cambest's expertise in this area,” Ellenbogen said.

Catena resigned as Carnegie Council president earlier this month, before he was selected as the county council appointee.

The move drew questions about whether Catena's selection was a foregone conclusion.

But DeFazio says Catena did not have an advantage over Frank Bruckner, the Scott commissioner who council also interviewed. Both Catena and Bruckner are Democrats.

“I never had a meeting or talked to a group of people about this at all prior to Monday's meeting,” DeFazio said. “They both had an equal chance.”

Bruckner declined to comment on Catena's on the fairness of the process.

A regular practice

Monday's closed caucus meeting was not a rarity for Allegheny County Council.

Council Democrats and Republicans meet in separate caucuses before each council meeting. Those meetings are closed to the public.

County Council code says a quorum exists when at least a majority of seated members of council are present, either by phone or in person.

If there's a quorum, the meeting must be advertised and open to the public, according to the Sunshine Act. If there's no quorum, the act doesn't apply, but no decisions about official business can be made, either, Melewsky said.

On Monday, eight members met of the 14 on council at the time — therefore a quorum, meaning the act should apply (even though Ellenbogen left before it was over to take a call), Melewsky said.

If eight or more Democrats show up to the regular caucus meetings, a quorum of the council is present, and the meeting must be done in public, according to the Sunshine Act.

But the caucus meetings are never public and never advertised.

Cambest defended that practice.

“As far as I know, the caucuses have never been subject to the Sunshine Act,” Cambest said.

Melewsky says the language in the Sunshine Act that allows for closed caucus meetings applies only to the General Assembly.

“I haven't heard of any (local elected bodies) who do that as a regular practice,” she said.

Philadelphia City Council members hold weekly caucus meetings, but their meetings, which include council members of both parties, are open to the public, said spokeswoman Jane Roh.

The Montgomery County Board of Commissioners do not hold caucus meetings, said Jessica Willingham, a spokeswoman.

Pittsburgh City Council has no Republican members, so the issue of closed caucus meetings doesn't arise.

Even if Allegheny County Council Democrats make sure they never have eight or more members at their caucus meetings, the practice is not in the public interest, Melewsky said.

“What we're talking about, then, is ways to avoid public access,” Melewsky said, “and it's sad if that's an agency's goal.”Theresa Clift is a Tribune-Review staff writer. Reach her at 412-380-5669 or tclift@tribweb.com.

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