"What's black and white and read all over?"

Tuesday, November 20, 2007
Posted 9:20 PM by

Role reversal

Pennsylvania lawmakers fail at open records reform, but the state Supreme Court takes a big baby step in the right direction.

We may soon find out how much Penn State pays Joe Paterno to coach football, thanks to a state Supreme Court ruling today.One year after Democrats gained a majority in the state House amid calls for reform from disgusted voters, the lawmakers have actually managed not to change a bloody thing.

Unless you think talking about change suddenly counts as an accomplishment.

Personally, I think that's merely lowering the bar while maintaining the illusion of real reform. As Boss William M. Tweed of Tammany Hall said, "The appearance of the law must be maintained, especially while it's being broken."

For instance, the first draft of the first attempt to improve the state's open records law in 50 years failed to extend the public right to know to lawmakers' e-mails.

That not only ignores the indictment of powerful state Sen. Vincent Fumo earlier this year - which was reportedly based on e-mails authorities recovered after Fumo ordered them deleted - it ignores modernity and just plain commonsense.

"I don't know what the bill that we're drafting now will say, but I'm certainly not supportive of making every e-mail or letter or phone call record from my constituents to be public records," said state Rep. Glen Grell, R-Cumberland. "I think they have an expectation of privacy when they contact me."

They may indeed have that expectation, but as a legislator Grell should not have that priviledge and should explain to them that he doesn't.

Grell and other lawmakers are not being paid by taxpayers to be a lawyer, a doctor or a priest, and the last time I checked those professions are the only ones granted such confidentiality by law.

House Majority Leader Bill DeWeese says he hoped to resume the effort toward revising the open records law after the House returns from its Thanksgiving break on Dec. 3.

He hopes.

As if DeWeese, who voted against repealing the great pay grab of 2005 and just fired his chief of staff amid a $3.4 million bonus scandal, really wants legitimate reform?

Give me a break. Actually, the state Supreme Court did just that today, thanks to a loophole in the open records law exploited by the Harrisburg Patriot-News.

Reporters have long wondered how much legendary Penn State football coach Joe Paterno is paid.

But because JoePa works for a state-related university, which gets less than half of its funding from the state, that information - along with the entire $3 billion-plus university budget - is not considered public record.

Here's the catch. Paterno pays into the state-run retirement system. And the justices ruled in a 4-2 decision today that it is subject to the open records law.

Ironically, Paterno has said he would have no problem if his pay was released, but the university kept fighting.

Penn State argued that releasing salaries would be unfair to those hired with an understanding their pay would not be public, and that disclosure might harm morale or make it harder to recruit and retain talent.

The ruling covers Paterno's name, service history and salary, but will not include his address, phone number or Social Security number.

"Individuals and private entities cannot reasonably expect the commonwealth to keep secrets from its citizens regarding the disbursement of public funds, past, present or future," wrote Justice James J. Fitzgerald III for the majority.

Pennsylvania Newspaper Association lawyer Melissa Bevan Melewsky said that aspect of Fitzgerald's opinion will probably make its way into future lawsuits over access to public records.

Of that, I have no doubt.

But in the dissenting opinion, retiring Chief Justice Ralph Cappy argued, "That information may become a public record at the time the retirement benefits are computed and paid by (the retirement system), but until that point, there has been no disbursement of public funds or even the anticipation of disbursement."

I hate to admit it, but he's right.

You can expect that comment will also show up in future decisions. Another crappy legacy from one of the worst justices in state history.

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