Penn State’s Board of Trustees claims a legal exception allows some of its most influential leaders to meet regularly in private. Media law lawyers say the practice might violate Pennsylvania law.
Wyatt Massey of Spotlight PA State College
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STATE COLLEGE — For more than a decade, some of the most powerful members of the Pennsylvania State University’s Board of Trustees have regularly met in private, actions that media law experts say may violate the state’s open meetings law.
The board’s executive committee includes the chairs of other committees and university President Neeli Bendapudi, among others. Bendapudi is a non-voting member.
The committee exists “to transact all necessary business” that could occur between regular meetings of the full board, according to board bylaws. The board’s governing documents require the committee’s meetings and agendas to be made public.
Yet the committee’s last public meeting was more than a decade ago. Since then, the committee has used a provision of the Pennsylvania Sunshine Act — which determines public access to governing bodies — that allows officials to gather for “conferences” without public notice or other transparency measures.
The law says conferences can only take place in limited circumstances, primarily as a “training program or seminar, or any session arranged by State or Federal agencies” and never to deliberate business.
Pennsylvania’s three other state-related universities — Temple University, University of Pittsburgh, and Lincoln University — have trustee executive committees that post public meeting minutes. Pennsylvania’s state-related universities are independently governed but receive some state funding.
The University of Pennsylvania, a private university, also makes available the minutes of its executive committee meetings.
Shannon Harvey, the director of Penn State’s Office of the Board of Trustees, told Spotlight PA in an Aug. 17 email that the executive committee uses the conference provision to “review Board and committee agendas and for planning purposes.” The executive committee’s planning and discussions of agendas don’t rise to the level of deliberating “agency business,” Harvey wrote in an Aug. 26 email.
Harvey wouldn’t provide information about which state or federal agencies hosted training programs for the executive committee during its conferences, nor would she explain how the board determined that reviewing agendas or planning is considered a “training program or seminar,” as defined by the law.
“We believe that our conferences are structured to comply with the law and facilitate good governance,” Harvey wrote in a follow-up email.
Melissa Melewsky — media law counsel with the Pennsylvania NewsMedia Association, of which Spotlight PA is a member — said Penn State’s explanation was “inconsistent with the law.” If a committee is authorized to render advice to the board of trustees, even if that committee is not voting, then it must comply with the law, Melewksy said.
“The law recognizes that most of the deliberation, and most of the real work on a particular issue is farmed out to the committee,” she said. “And the committee does all the legwork and all the discussion, and all the changes happen there. So, if you cut the public out of that process, all you see and participate in as the public is the end result and you’ve lost your opportunity to help shape public policy.”
Melewsky questioned why Penn State’s executive committee needs to have its gatherings in private, without public notice or input, if such gatherings are as nondescript as the board claims.
Harvey declined to explain why the board chooses to make this committee’s gatherings private. She also would not discuss how the executive committee’s ability to set agendas might influence the business of the full board or its other committees.
Because the gatherings are not open to the public and no official minutes are taken, it’s nearly impossible to know what is happening behind closed doors, or if the committee is following the law.
“There’s no records kept of it, and as long as they don’t break ranks, you’ll never know exactly what they said,” said Craig Staudenmaier, an attorney with Nauman Smith Shissler & Hall and an expert in media law. “But it’s only human nature to start voicing an opinion or to start discussing it. The more discussion that goes, the closer and closer it gets to deliberation, in my opinion.”
The committee’s last official meeting, a record of which is publicly available, occurred Dec. 2, 2011, while the university grappled with the fallout of the Sandusky child sex abuse scandal. During the seven-minute meeting, the committee approved a previous board decision to accept Graham Spanier’s resignation as university president and to end Joe Paterno’s tenure as head football coach.
Since then, the executive committee has continued to gather in private, with the full board voting in new members. The committee has gathered five times in 2022, according to information Harvey provided to Spotlight PA.
The effectiveness of the committee was called into question during the July 22 meeting of the board of trustees, when Barry Fenchak, a trustee elected by alumni, asked when it had last met to deliberate university business. Board of Trustees Chair Matthew Schuyler said the group had met a few weeks prior to the July meeting.
Fenchak told trustees he doubted the executive committee’s ability to responsibly oversee the university.
“In fact, it’s an opportunity to be incongruent with responsible governance, so I can’t support further additions to that committee,” said Fenchak, who was the lone vote that day against appointing a new member to the executive committee.
The board’s seven other committees have all held public meetings in 2022, with agendas and minutes posted online.
State courts have not provided a clear test to determine whether something is a meeting or a conference, Staudenmaier said. If a quorum of officials in a public body gathers, they have to demonstrate why the meeting should not be open, he said.
Conferences are supposed to be educational and can involve fact-finding, Staudenmaier said. But once people start sharing opinions or talking about implementing changes to the organization, then the gathering becomes a meeting as defined under the law.
The state’s Sunshine Act allows for fines ranging from $100 to $1,000, plus the cost of prosecution, for a first offense by any agency member who knowingly violates the law. The fine increases to $500 to $2,000 for subsequent offenses.
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