This story first appeared in The Investigator, a weekly newsletter by Spotlight PA featuring the best investigative and accountability journalism from across Pennsylvania. Sign up for free here.
HARRISBURG — A member of the board overseeing Pennsylvania’s opioid settlement money said he’s concerned the group’s actions don’t comply with the state’s Sunshine Act, echoing transparency questions first raised publicly by Spotlight PA and WESA.
“After a review of the statute, it is not clear to me that these working groups can legitimately meet in private,” state Sen. Greg Rothman (R., Cumberland) wrote in a letter dated March 26, which his office recently provided to Spotlight PA.
The court order creating the Pennsylvania Opioid Misuse and Addiction Abatement Trust requires the group to follow the state’s open meetings law. That law covers a wide range of agencies and “all committees thereof authorized by the body to take official action or render advice on matters of agency business.”
Pennsylvania expects to receive more than $1 billion through settlements and litigation with opioid companies, and the trust is responsible for distributing it. Most of the money is going to counties, and they had to file their first comprehensive spending reports with the trust earlier this year. The trust can cut funding if it decides counties spent inappropriately.
Rothman told Spotlight PA the trust should be accountable to the public, victims of the opioid crisis and their families.
“I’m all for transparency and will always promote transparency because I don’t think that there’s any reason not to,” he said.
The dispute over the working group meetings is the latest example of the trust blocking public input and oversight, which has frustrated some relatives of opioid victims and advocates.
“At this point … my hopes are so low for the trust,” Jordan Scott, digital advocacy and organizing coordinator for the Pennsylvania Harm Reduction Network, said during a recent panel discussion hosted by Spotlight PA. “I think they’ve just continuously shown that they don’t have any desire or intention to be transparent.”
The chair of the trust, Tom VanKirk, said in a statement that the trust has complied and will continue to comply with the Sunshine Act.
The court order creating the trust says the chair serves at the pleasure of the governor. Will Simons, a spokesperson for Democratic Gov. Josh Shapiro, did not address the specific Sunshine Act concerns that Rothman raised when asked about them by Spotlight PA. Simons said the trust “has a narrow role, limited to distributing funds and ensuring they are spent in accordance with legally binding guidance and reported transparently for the public to see.”
‘Privy to the candid discussions’
At a public meeting in February, VanKirk presented the plan to review spending reports in smaller groups, which would be responsible for making recommendations for the full board to consider in public.
VanKirk said having these smaller meetings in private is “proper under the Sunshine Act” without detailing why. He said the working groups would not have any authority to take official action, but he did not address the Sunshine Act requirements for committees that render advice.
In a March 6 story, Spotlight PA and WESA examined whether the plan violated the Sunshine Act. Two attorneys and the president of the Pennsylvania Freedom of Information Coalition told the news organizations the meetings should be public.
Later that month, Rothman urged VanKirk to make the working group sessions public, both in-person and online. The senator held VanKirk responsible for the planned closed-door sessions, telling him it was based on “your unilateral direction.”
In his letter, he also raised concerns about the group’s use of private executive sessions, which the law allows for limited reasons, such as consulting with an attorney regarding litigation. Rothman wrote, “executive sessions prior to Trust meetings have been broader in scope than I think acceptable given the limited topics which can be discussed.”
“The public should be privy to the candid discussions, thoughtful questions, and deliberations of the Board of Trustees and all its sub-groups,” Rothman added.
After Spotlight PA asked the trust about Rothman’s letter, VanKirk again offered no direct legal explanation for why the working group meetings are allowed to be private under the Sunshine Act but indicated the interpretation was “based on advice of counsel.” In response to separate questions, he said it was inaccurate to call the working groups “committees,” but he offered no distinction or difference between the two terms — other than the name.
Melissa Melewsky — media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member — said that for the purposes of the Sunshine Act, the work of the smaller groups matters, not their name.
“What you have to look at is what this group of people is actually doing — whether it’s called a committee, a working group, an advisory group. The terminology doesn’t matter,” she said. “What matters is what is this group of people authorized to do?”
In the case of the opioid trust, Melewsky said working groups are subject to the Sunshine Act requirements because they are authorized to render advice on agency business.
She said the Sunshine Act covers committees because the law recognizes that they often do most, if not all, of the work on specific issues and their recommendations are often adopted without much, or any, further debate by the larger board. Cutting the public out of the committee process also excludes them from the decision-making process, Melewsky said.
In his statement, VanKirk also said “all matters discussed in executive session were properly within the scope of what is permitted under Pennsylvania law.”
‘It would be nice to understand their reasoning’
VanKirk’s statement made multiple points related to Rothman’s role in the process.
He told Spotlight PA that Rothman “and/or his representative participated in the working group process,” and he said Rothman at the February public meeting approved the process for reviewing the reports.
A review of the meeting and the trust’s records shows that ahead of the vote, VanKirk said the smaller group meetings would not be open to the public. But the specific resolution presented in the trust’s meeting minutes does not say whether those sessions would be private or public.
Briana Anderson, whose title is listed in emails as opioid trust administrative director, responded to a question from Spotlight PA by describing the status of public access to the working group sessions as “unnecessary information” that “was not included in the resolution.”
Rothman said he’s “been consistently advocating for transparency and openness, and will continue to do so.”
After Rothman sent the letter, VanKirk shared it with the full board, according to Rothman’s office and VanKirk. Other board members had an opportunity “to raise any comments or concerns related to” the letter, but did not do so, according to VanKirk.
The trust proceeded with its secret work groups, VanKirk acknowledged at the May public meeting. During that meeting, he described multiple days of meetings in April, at one point saying “each of the three working groups met for five hours or more.” The trust’s public meeting in May, when the full board voted on the recommendations, didn’t last as long — it was a little over three-and-a-half hours.
Marianne Sinisi, a Blair County resident who advocates for people with substance use disorder, saw the power of the working groups when she showed up to the trust’s meeting in person in May.
Trust members made many decisions without discussing the specifics of individual county programs. It wasn’t clear to Sinisi why the trust approved some programs, but not others.
“It would be nice to understand their reasoning … behind why they make the decisions,” Sinisi, whose son Shawn died from a drug overdose in 2018, told Spotlight PA.
Many programs still await a final decision from the trust. The trust’s next public meeting is scheduled for June 20. At the public meeting in May, trust officials indicated members would meet in private work groups ahead of time in order to make recommendations for the meeting.
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