by Ed Mahon of Spotlight PA and Kate Giammarise of WESA
Photo courtesy of Daniel Fishel / For Spotlight PA
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Counties will soon have to report how they spent millions of dollars they received from the first rounds of opioid settlement payments in Pennsylvania. But members of a trust that oversees county spending are preparing to first review the information in secret, despite a court order requiring the trust to follow the state’s Sunshine Act.
Members of the Pennsylvania Opioid Misuse and Addiction Abatement Trust will meet in private working groups, according to a plan proposed by the trust chair, and then be responsible for submitting recommendations to the full board to consider.
The president of the Pennsylvania Freedom of Information Coalition and two attorneys who specialize in transparency laws said these smaller group meetings should be public.
“There is no wiggle room,” Terry Mutchler, an attorney and former executive director of the state Office of Open Records, told Spotlight PA and WESA. “To try to subvert that through a working committee, I think, is inappropriate — and I think, quite frankly, it’s sad.”
Committees often work on specific issues, and their recommendations to their full board are often adopted without further discussion or change, said Melissa Bevan Melewsky, media law counsel of the Pennsylvania NewsMedia Association, of which Spotlight PA is a member.
“If the public is cut off from the committee process, they are also cut off from the majority of the deliberations and denied the opportunity to provide public comment as committee recommendations take shape,” Melewsky added.
At a public meeting of the trust in February, when chair Tom VanKirk proposed this plan, he acknowledged members would meet in private in small groups and said it was “proper under the Sunshine Act.” But he offered no further explanation during the meeting of why it was allowed by the law.
Nor did the trust offer any legal justification for the private meetings when later contacted by Spotlight PA and WESA.
The Sunshine Act defines an agency as both the body “and all committees thereof authorized by the body to take official action or render advice on matters of agency business” for a wide range of public entities.
The act — which was last amended in June 2021, more than a year before a court order created the trust — does not mention the trust. But that Commonwealth Court court order creating the trust says that the “proceedings and meetings of this Trust shall be governed by the Sunshine Act.”
The Sunshine Act says that certain working sessions of boards of auditors may be conducted privately. But the trust has not cited that provision as a rationale for its plans, and Melewsky said that exception would not apply to the trust’s review of spending reports.
The planned private meetings are the latest way that the trust board is distancing its operations from public oversight and input. A quorum of the full trust board met in secret and held votes for several months, as Spotlight PA and WESA reported last year. Unlike many boards that follow the Sunshine Act in Pennsylvania and unlike at least some opioid settlement boards in other states, the trust doesn’t allow the public to speak during meetings.
And many records of the trust are not available to the public. The state Office of Open Records ruled last year that Pennsylvania’s Right-to-Know Law, which establishes how the public can access records of a range of government agencies, doesn’t give it authority over the trust. Mutchler publicly called that decision “a huge mistake.” VanKirk has welcomed the agency’s decision and has said the trust is committed to being “as transparent as possible as far as monies received and monies that were distributed.”
The stakes are high for these upcoming meetings. Counties are required to submit their spending reports by March 15. Trust members have the power to withhold and ultimately cut funding if they decide counties spent the money improperly.
County governments are receiving the largest share of the state’s settlement money, which is scheduled to be paid out over 18 years. They were allocated $82 million for 2022 and another $54 million for 2023.
But for the past year and a half, it’s been difficult to track how counties spend the money and how they make their funding decisions.
“It has been an opaque process,” said Jason Snyder, an official with the Rehabilitation and Community Providers Association in Pennsylvania. “... When we don’t understand how these decisions are being made, there’s a great skepticism.”
He thinks treatment, recovery, and harm reduction should be priorities for the funds. He said spending reports could help the public understand whether counties are using the money as it was intended, and they could help advocates better influence the process.
In order to receive funding through the opioid settlements, counties had to agree to spend the money in a way that’s consistent with strategies outlined in a settlement document known as Exhibit E.
Exhibit E includes a long list of uses, and some county officials and harm reduction advocates have already clashed over whether the money can or should support drug task forces and other law enforcement efforts. The document approves spending on drugs that reverse opioid overdoses, medication-assisted treatment, support for pregnant and postpartum women, recovery services, prevention programs, regional planning, media campaigns, and other strategies.
During the trust’s February meeting, the board approved VanKirk’s plan to review the spending reports first in private working groups. VanKirk said the full trust will meet in public when it considers recommendations from the working groups. He also said the trust plans to publicize information it receives about the county spending.
“Despite the fact, it is settlement money and not taxpayer money, I still think our best practice will be to post it when we get the information in and when we’ve had a chance to vote on it,” VanKirk later added.
He did not say when the trust will post the information. The trust’s next public meeting is scheduled for May 2. The meeting section of its website didn’t mention the working groups as of Feb. 29, and it did not indicate whether they had already started reviewing any reports, which will include money that was spent in 2022 and 2023.
The trust website says counties are required to file the reports, and other local governments that are receiving funds based on their role in litigation are also encouraged to do so.
As Spotlight PA and WESA reported last May, part of the order creating the trust that specifies counties must file annual reports doesn’t mention other local governments that had litigation. But another section of the order says both counties and other local governments can be penalized if they misspend money or don’t submit an annual report.
The Pennsylvania Office of Attorney General — which negotiated the settlements with drug companies and encouraged counties and other local governments to sign on to them — plans to amend the trust order to “to clarify that all subdivisions must report compliance with Exhibit E,” Brett Hambright, a spokesperson for the office, told Spotlight PA and WESA.
The court order creating the trust does not require the legislature to file reports to it on the state’s share of funding.
Sunshine question raised in private
Members of the trust met in private for months after a court order created the group in July 2022, as Spotlight PA and WESA previously reported. Trust meeting minutes show they voted on selecting Wilmington Trust as the bank for the settlement funds, how much to put aside for an administrative fund, and delaying a spending reporting deadline for counties by a year.
Documents obtained by Spotlight PA show that a former member of the trust raised a concern related to meeting in private.
“Wanted to circle back and ask about the official vote for using Wilmington,” Jennifer Smith, who was secretary of the Department of Drug and Alcohol Programs at the time, wrote in an email dated Aug. 10, 2022. “We had done a concurrence with the trustees pending official vote during a public meeting. Do we still need to Sunshine a mtg in order to conduct that vote?”
VanKirk replied in an email later that day.
“So we can get the payments out I think we can affirm the actual retention in an informational meeting then have a public meeting later so we can vote in a public meeting on all matters we have acted on,” he wrote. “Hope that works for you.”
The newsroom obtained that email exchange through an open records request to the Department of Drug and Alcohol Programs.
Despite VanKirk’s concerns that a public meeting would conflict with getting the money out quickly, the Sunshine Act allows agencies to advertise meetings on relatively short notice. The law says agencies can give public notice of a special meeting or rescheduled regular meeting 24 hours in advance.
The trust did not hold its first public meeting until March 30 of last year — eight months after it was created.
Melewsky and Susan Schwartz of the Pennsylvania Freedom of Information Coalition raised several concerns about the email exchange.
“I think the rationale of, ‘Oh, we’re going to meet in a private meeting, decide what we’re going to decide then, and then come out and rubber stamp it in public’ — I think that that is attempting to do an end run around the Sunshine Act,” said Schwartz, a journalist.
Smith is now a deputy secretary in the state Department of Human Services, and her slot on the trust was filled by Latika Davis-Jones, who was named secretary for the Department of Drug and Alcohol Programs by Democratic Gov. Josh Shapiro.
In response to questions sent to both departments, a human services spokesperson referred questions to the trust. The trust did not comment on the August 2022 email exchange between Smith and VanKirk when questioned by Spotlight PA and WESA.
For the first several months that the trust operated, the attorney general’s office served in an administrative role. When asked about the private meetings that took place during that time, Hambright, with the attorney general’s office, did not cite any specific exceptions that would allow them under the Sunshine Act.
Instead, he said the settlement process and subsequent windfall to the state were unprecedented in multiple ways. He said “a top priority was getting money out to communities as soon as possible, to assist in recovery and repair,” leading to about $169 million being distributed across the state so far “to bolster treatment and recovery efforts.”
Some changes, but no public comment
Since Spotlight PA and WESA published the transparency story last June, the trust has made some changes. It started publicly posting more details on how much opioid settlement funds go to various counties and other public agencies. After Spotlight PA obtained guidance that a trust advisory committee was providing to counties about allowable spending, the trust added more details to its FAQ section.
In September, it began allowing the public to attend its meetings in person instead of offering only a virtual option. But the trust doesn’t allow them to comment at the meetings. VanKirk previously told Spotlight PA and WESA that doing so could make the meeting last “forever.”
With limited exceptions, the Sunshine Act requires boards of a political subdivision to provide a reasonable opportunity for public comment at each regular meeting. The law does not say that statewide boards are required to follow that rule, and the trust told Spotlight PA and WESA it is not subject to that requirement.
Still, a number of statewide boards do allow public comment during meetings.
“Well, it’s the right thing to do,” Doug Eberly, chief counsel for the Pennsylvania Milk Board, told Spotlight PA and WESA last year. “... They’re really interested in making sure that the public feels like it is heard. And they want to answer questions and explain what they do and why they do it.”
Representatives for the Pennsylvania Liquor Control Board, the Pennsylvania Gaming Control Board, and the State System of Higher Education offered similar reasons.
Some other states allow public comment at meetings for boards that oversee or advise on opioid settlement funds. The Colorado Opioid Abatement Council “believes in the importance of public input and welcomes feedback from the public, particularly individuals with lived experience,” according to a spokesperson for the attorney general’s office in the state.
Gail Groves Scott, a public health policy researcher and advocate from Lancaster County, attended the September meeting of the trust in Harrisburg. She has testified before state lawmakers about addiction treatment issues, including how one of her children almost died of an opioid use disorder and is now in sustained recovery.
Before the trust meeting, she said she wanted to ask trust members about the public’s ability to comment during meetings. She was also curious to know the hourly billing rates for attorneys the trust hired. Trust officials did not disclose those rates when they approved hiring a law firm at an earlier meeting.
“Those are the kinds of things the public could ask if we had a public comment period,” she told Spotlight PA.
After the meeting started and VanKirk made it clear the public wouldn’t have a chance to speak, Groves Scott reached out to some members of the trust. She listed several concerns in emails.
“It feels adversarial to me,” she said afterward. “And it’s disappointing.”
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