Watchdogs say LCB routinely fails to honor spirit of open meetings legislation
By Kari Andren
Published: Saturday, Nov. 10, 2012, 8:48 p.m.
Lawmakers and government watchdogs are taking aim at how the state Liquor Control Board does business, with minutes-long public meetings and agendas so vague the board's chairman didn't know he'd approved a controversial in-house brand of wine.
A Tribune-Review analysis of nearly three years of LCB meeting records, along with attendance at meetings, shows many of the board's twice-monthly meetings lasted just 15 to 20 minutes with little or no public discussion before votes.
Critics speculate the lack of discussion means the bulk of the agency's decision-making occurs out of public view.
“It appears that ... the staff and the board members have developed a way of doing business that is difficult, if not impossible, for an average citizen to follow,” said Senate Majority Leader Dominic Pileggi, R-Delaware County, an advocate for increased government openness.
“Certainly, these issues of how the board operates will be given a fresh look as we work through the legislation for changing the way citizens are able to buy alcohol,” Pileggi said.
The agency is the largest purchaser of wine and spirits in the United States, with annual sales of more than $1.5 billion.
LCB board Chairman Joseph “Skip” Brion, a Chester County attorney, said he inherited the decision-making system and hopes to make it more open.
“To me, (board meetings) should be informative and transparent as to how the board operates, but not get to the point where people are there for 45 minutes,” Brion said. “I want people to know the agenda ahead of time. If they have a question, they can come to the board and talk about it. I don't want the board to be perfunctory.”
The regulatory agency's transparency is being scrutinized as critics question how and why it chose to market eight of its own brands of wine and spirits, directly competing with private-sector brands it is charged with selling and regulating. Brion said last month that he has initiated an investigation into the matter.
Brion, who took office last year after all but one of the private-label brands had been approved, said he was not aware that he had voted to approve one of the products — Vinestone wine — in July because it was buried amid 100 other products up for approval.
Brion is paid $74,461 a year to serve as chairman of the board; member Bob Marcus of Indiana County is paid $71,528. A third board position is vacant as a result of Patrick Stapleton of Chester County resigning in October. Board members are appointed by the governor, and many maintain outside jobs in addition to their LCB duties.
Although all of the in-house brands were approved at public meetings, the Tribune-Review analysis showed agendas and meeting minutes didn't specifically indicate that board members were voting on the private labels.
The in-house products carry the brand names of TableLeaf, Dialed In, LA MERIKA, Hayes Valley, Zita, Las Parcelas and Vinestone wines and several flavors of Copper Sun vodka.
Pennsylvania's Sunshine Act requires agencies to hold open public meetings when they take official action or conduct deliberations.
“The Sunshine Act is designed to allow the public to see the formation of public policy. That does not just mean the final vote,” said Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association.
But on Dec. 15, 2010, when the first in-house brand — TableLeaf wines — was approved, the meeting agenda listed no items of agency business.
Meeting minutes reveal board members approved TableLeaf as part of a package from the agency's marketing department to accept or reject hundreds of new products and price changes.
Subsequent in-house brands were approved in the same manner, according to meeting minutes.
“If the public cannot witness any deliberation and if the board is simply acting to vote ... and we don't know the basis of that vote, then the deliberation is likely taking place outside of public view, which would be a violation of the Sunshine Act,” said Robert Richards, founding director of the Pennsylvania Center for the First Amendment at Penn State University.
Board minutes showed votes were almost always unanimous, a finding that upset Richards.
“It defies logic that they are always reaching the exact same conclusion on their own and then only coming together to cast some kind of official action,” he said.
Brion and staff members offered some insight into how the board operates.
After public meetings, board members meet privately with department heads for informational presentations and financial updates, a spokeswoman said.
Brion said board members and staff sometimes “have a working lunch where we'll sit down and kick around ideas” or discuss “moving ahead in different ways,” but no votes are taken.
But meeting minutes show board members regularly discuss and vote in other private meetings.
From October 2010 to October 2012, the board took “notational votes” outside board meetings at least 18 times — once on the same day as a public meeting — and then “ratified” those actions during the next public meeting.
Melewsky said state courts have ruled that an agency can redo a vote taken outside a public meeting to prevent a violation of the Sunshine Act, but should not do so to avoid voting in public.
“Our interpretation is that it should be a once-and-done thing,” Melewsky said. “No (court) case ever said it's something that can be used over and over.”
Pileggi said that even if notational votes are within the letter of the law, they aren't in the spirit of the law.
“The board has an obligation to make important decisions in open, public meetings, not simply to rely on a ratification,” he said.
State law allows members of an agency to cast notational votes “individually and separately” to expedite decision-making or remove noncontroversial matters from a public meeting agenda to allow members to focus on more significant items.
Brion said the notational votes, often done by conference call, are sometimes necessary to meet deadlines or deal with an emergency.
The votes included approving new products, purchasing software, renewing a store lease and entering into a two-year $4.1 million contract with Tierney & Partners Inc. for marketing and advertising services, records indicate.
Those actions total more than $6 million in spending authorized behind closed doors, records show.
“I'm not one to agree to a notational vote if we can wait until a meeting,” Brion said. “It must be an issue or emergency that has to be done that day.”
The board's most recent notational vote authorized the purchase of 500,000 holiday gift bags for $33,857. The vote was ratified during the Oct. 17 meeting.
Kari Andren is a staff writer for Trib Total Media. She can be reached at 724-850-2856 or firstname.lastname@example.org.
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