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Tom Van Kirk heads a board of directors with the power to manage large sums of money.
The Pennsylvania Opioid Misuse and Addiction Relief Trust is responsible for ensuring that counties and other local governments properly spend the hundreds of millions of dollars expected to be made from settlements with opioid companies. The funds are intended to help Pennsylvania respond to the crisis that kills thousands in the state each year.
When Mr. Van Kirk and other board members first met in public in late March, he told the audience he would be “as transparent as possible.”
But before that public meeting, the Trust met in secret for several months. Board members selected the bank to administer the fund, discussed how the county could spend the funds, and required the county to submit this year’s expenditure report to the trust, according to recently released meeting minutes. exempted. Minutes appear to indicate that board members voted on issues on at least six separate occasions at these meetings.
Despite the court order creating the trust requiring it to operate under the Pennsylvania Sunshine Act, all and more was done in public. The law requires, with limited exceptions, public action and deliberations by a quorum of members of public institutions to be held in public.
And trust members began holding public meetings in late March, but in a less transparent manner than the standard practice of school boards, local government leaders and even some independent state commissions. continues to operate. The Trust and its administrators also said they would not release any documents to the public, including those related to hiring outside parties, for weeks or months after the vote.
Terry Mathurer, an attorney and former executive director of the State Public Records Office, said that given the trust’s mission, transparency should be erred.
“The opioid crisis is one of the greatest catastrophes to hit our country for generations,” said Mattler, later adding. So shouldn’t the public at least be able to witness what’s going on? “
Attorney Van Kirk, former chief legal officer of Hymark Health, said in an email that he believes the trust is complying with the judge’s order and the Sunshine Act.
“All of the measures to date have been ministerial and aimed at providing mechanisms (such as bank accounts) to pay settlements to parcels as quickly as possible to address opioid amelioration efforts.” he wrote. “I would also like to note that detailed minutes were taken at these meetings and shared with you and the public in full transparency to the public. ”
But he did not mention specific exceptions under the Sunshine Act that justify the trust’s actions to hold public meetings from July through the end of March. And the minutes of meetings the trust has released since mid-April contain limited information, making it impossible for the public, for example, to directly compare different bank options. .
“I honestly think they’re missing the point of the Sunshine Act,” says Susan Schwartz, a journalist and president of the Pennsylvania Information Freedom Coalition. “…By releasing the minutes of the event months later, they basically cut the public out of the process.”
This trust exists as a result of historic agreements between Johnson & Johnson and three major drug distributors that have faced numerous lawsuits for their role in the opioid epidemic. Under national agreements, the companies denied any wrongdoing.
In July, a Commonwealth Court judge issued an order creating a 13-member trust that would be responsible for distributing and overseeing an estimated $1 billion in proceeds from that transaction, as well as funds from future similar settlements. signed. The trust includes officials appointed by the governor, congressional leaders, the mayor of Philadelphia, and Allegheny County officials. County leaders in various regions of the state also vote for board representatives. Van Kirk began serving as chair under former Democratic Governor Tom Wolfe.
The founding order of the board states that “the proceedings and meetings of this trust shall be governed by the Sunshine Act” and defines a quorum of the trust as seven members.
In an email, Mr. Van Kirk said the trust’s first public meeting on March 30, which approved the hiring of the Pennsylvania County Commissioner’s Association for its administrative duties, “was an obligation to make payments to the trust. “It was the first meeting where a poll was held,” he said. Money for administrative problems. “
However, the decisions the trust made in July and August to select a bank to manage the funds will also affect the trust’s finances, according to the minutes. The Sunshine Act has exceptions for agency “administrative actions,” but those exceptions do not include deliberations or voting.
A few days before the trust’s first public meeting, Mifflin County Commissioner Robert Postal, a member of the trust, told Spotlight PA and WESA that he hoped transparency would “improve.”
“One of the purposes of the trust was to withdraw this money quickly,” Postal said, adding, “Perhaps too quickly, before any real custodial regime was established.” rice field.
Van Kirk said the trust received about $130 million in 2022 and distributed most of it to counties. It’s unclear how much money the county has spent so far, partly because the trust waived reporting requirements in March.
Media legal counsel for the Pennsylvania News Media Association, of which Spotlight PA is also a member, said the trust could have held public meetings while distributing funds quickly. The Sunshine Act allows a government agency to hold the first regular meeting of a calendar or fiscal year on three days’ notice to him. Only 24 hours notice is required for special or rescheduled meetings.
Beyond past voting and deliberations, the Trust Board has other ways of limiting public involvement.
virtual-only meetings: The Office of Public Records, which provides guidance on the Sunshine Act, says meetings should “include physical assemblies that allow public attendance, observation and comment” following the lifting of COVID-19 restrictions. made a recommendation.
The trust’s meeting notices include only virtual options for public use. And his second public meeting highlighted a fundamental problem with that approach. Some public members missed an important part of the meeting because the trust website contained incorrect login information.
“We are not being given a voice at this point,” Austerman told Spotlight PA and WESA, later adding. “They are not leveraging the resource of being a parent. …I have an idea.
The trust released a video of the meeting online four days later.
Ongoing private meetings: At a board meeting on May 18, Mr. Van Kirk and another board member referred to an “informational” meeting that was held behind closed doors before a public meeting.
A 2013 state Supreme Court ruling differentiated between meetings held to discuss agency operations, while allowing meetings held to gather information to be held in private.
But the opinion notes that if similar arguments are challenged in court in the future, judges will need to determine whether those arguments comply with the Sunshine Act on a case-by-case basis. And the Supreme Court’s opinion contained language warning against private meetings of this kind, noting that “the suspicion among the general public is not unreasonable.”
Van Kirk also told Spotlight PA and WESA that trust committee meetings, where members can consider what spending is appropriate by county, need not be public. Mr. Melewski disagreed with that interpretation of the Sunshine Act, saying the law recognizes that large bodies often delegate the most important work on issues to committees.
Public comment is prohibited during the meeting: The Sunshine Act specifically requires boards of education, township superintendents, county commissioners, and similar agencies to allow public comment at meetings, but not state boards. Still, some of these commissions, including those that oversee the state’s liquor store system, enforce gambling laws, and regulate fishing and boating, allow audiences to speak in public comment sections. .
Opioid trust is not. Van Kirk defended the practice, saying that other state commissions do not allow public comment at their meetings and that written comments can be submitted to the trust through its website.
Van Kirk told Spotlight Pennsylvania and WESA in March, “If every member of the public who wanted to stand up and comment at this conference stood up, the conference would be over forever.” rice field.
The Public Records Office said it’s common for public agencies to impose a three-minute time limit on each public comment. The trust’s first public meeting lasted less than 46 minutes, and the second less than 53 minutes.
Withholding slip: The order creating the trust makes no reference to the Right to Know Act, which requires public agencies to provide certain public records.
But former Open Records executive director Mattler told Spotlight PA and WESA that “there is no question that the court had transparency in mind” when creating the trust.
“It would be absurd that this is subject to the Sunshine Act and not the Right to Know Act,” Mutschler said.
In response to a request for records, Van Kirk said the trust is not subject to state right-to-know laws. He refused to provide some of the requested records, including a written agreement between the bank and the law firm that the trust approved the employment. Spotlight Pennsylvania appealed this denial to the Public Records Office.
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https://www.spotlightpa.org/news/2023/06/pa-opioid-settlement-trust-secret-meetings-public-records/ Secret meeting sparks criticism of PA opioid trust Spotlight PA