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Tom VanKirk leads a board with power over a vast amount of money.
The Pennsylvania Opioid Misuse and Addiction Abatement Trust is responsible for ensuring counties and other local governments appropriately spend hundreds of millions of dollars expected to come their way from settlements with opioid companies. That money is intended to help Pennsylvania respond to a crisis that kills thousands of people annually in the state.
When VanKirk and his fellow board members first met publicly in late March, he told the audience they intended “to be as transparent as possible.”
But before that public meeting, the trust had met in secret for months. Board members selected a bank to administer the funds, discussed how counties are allowed to spend money, and waived a requirement for counties to file spending reports with the trust this year, according to recently released meeting minutes. The minutes appear to show board members cast votes on issues at least six separate times in those meetings.
All of that and more was done outside of the public view — even though the court order creating the trust requires it to operate under Pennsylvania’s Sunshine Act. That law, with limited exceptions, requires official actions and deliberations by a quorum of members of public agencies to take place at public meetings.
And while the trust members began holding public meetings in late March, they continue to operate in ways that are less transparent than what is standard practice for school boards, municipal leaders, and even several independent state boards. The trust and its administrators have also withheld documents — including ones related to hiring outside entities — from the public for weeks and months after votes.
Terry Mutchler, an attorney and former executive director of the state’s Office of Open Records, said that given the trust’s mission, it should err on the side of transparency.
“The opioid crisis is one of the single biggest scourges that has hit our country in … generations,” Mutchler said, later adding, “The public was the one that was harmed. So shouldn’t the public be able to at least witness what is going on?”
VanKirk, a lawyer and former chief legal officer for Highmark Health, in an email said he’s confident the trust has complied with the judge’s order and the Sunshine Act.
“All previous actions were ministerial and aimed at providing mechanisms (eg Bank Accounts) to pay out settlement dollars to the subdivisions as quickly as possible to enable them to address Opioid Remediation efforts,” he wrote. “I would also note that detailed minutes were taken at those meetings which have been shared with you and the public so there has been full transparency with the public.”
But he did not cite any specific exceptions under the Sunshine Act to justify the trust’s actions to meet outside of public view from July until late March. And the meeting minutes — which the trust released after mid-April — include limited information that, for instance, makes it impossible for the public to make direct comparisons of different options from banks.
“I think they’re missing the point of the Sunshine Act, to be honest,” said Susan Schwartz, a journalist and president of the Pennsylvania Freedom of Information Coalition. “… By releasing minutes months after the event, they’ve basically cut the public out of the process.”
The trust exists as a result of a historic agreement with Johnson & Johnson and three major drug distributors that faced a host of lawsuits for their role in the opioid epidemic. Under the national agreements, the companies did not admit wrongdoing.
In July, a Commonwealth Court judge signed an order creating a 13-member trust with the responsibility to distribute funds and provide oversight of an estimated $1 billion from that deal, as well as money from future similar settlements. The trust includes officials appointed by the governor, legislative leaders, the mayor of Philadelphia, and the Allegheny County executive. County leaders in different regions of the state also vote on representatives to the board. VanKirk began serving as chair under former Democratic Gov. Tom Wolf.
The order creating the board stated that the “proceedings and meetings of this Trust shall be governed by the Sunshine Act,” and it defined a quorum of the trust as seven members.
In an email, VanKirk said the trust’s first public meeting on March 30 — in which it approved hiring the County Commissioners Association of Pennsylvania for administrative work — was the “first meeting at which any vote was taken to obligate the Trust to make expenditures of Trust monies for administrative matters.”
But the decision to select a bank to administer funds — which the trust did in July and August — also affects the finances of the trust, the minutes show. The Sunshine Act includes an exception for “administrative action” of an agency, but that exception does not include deliberations and votes.
Days before the trust’s first public meeting, Mifflin County Commissioner Robert Postal, a member of the trust, told Spotlight PA and WESA he expected transparency “would get better.”
“One of the objectives of the trust was to get this money out quickly,” Postal said, “and maybe it happened too quickly before the actual administrative framework was set up.”
The trust received about $130 million in 2022, most of which it distributed to counties, VanKirk has said. It’s unknown how much money counties have spent so far, in part because the trust waived a reporting requirement in March.
Melissa Melewsky, media law counsel of the Pennsylvania NewsMedia Association, of which Spotlight PA is a member, said the trust could have had public meetings while still distributing the money swiftly. The Sunshine Act allows agencies to hold their first regular meeting of the calendar or fiscal year with three days’ notice. Special and rescheduled meetings require only 24-hour notice.
Beyond those past votes and deliberations, the trust board limits public involvement in other ways.
Virtual-only meetings: The Office of Open Records, which offers guidance on the Sunshine Act, issued an advisory in response to the lifting of COVID restrictions stating that a meeting should “include a physical gathering that allows for public attendance, observation and comment.”
The trust’s meeting notices include only a virtual option for the public. And its second public meeting highlighted basic problems with that approach, as the trust website included incorrect login information, which caused some members of the public to miss key portions of the meeting.
“We’re not given a voice as it is,” Ousterman told Spotlight PA and WESA, later adding, “They’re not tapping this resource of parents. …We have ideas. We have really good ones, and they don’t give us that respect.”
The trust made the video of the meeting available online four days later.
Ongoing private meetings: At the board’s May 18 meeting, VanKirk and another board member referred to an “informational” meeting that took place privately before the public meeting.
A state Supreme Court decision in 2013 made a distinction between meetings held to gather information, which it said could be held privately, and ones held to deliberate agency business.
But the opinion noted that if similar discussions were challenged in court in the future, judges would have to decide on a case-by-case basis whether those discussions complied with the Sunshine Act. And the Supreme Court opinion included words of caution about these types of private meetings, noting that “skepticism among the general public is not unreasonable.”
VanKirk also told Spotlight PA and WESA that trust committee meetings, when members can weigh in on what spending is appropriate by counties, are not required to be public. Melewsky disagrees with that interpretation of the Sunshine Act, saying the law recognizes that larger bodies often farm out their most important work on an issue to committees.
No public comment during meetings: The Sunshine Act specifically requires school boards, township supervisors, county commissioners, and similar agencies to allow public comment at meetings, but not state boards. Still, several of those boards — including ones that oversee the state liquor store system, enforce gambling laws, and regulate fishing and boating — allow audience members to speak during public comment sections.
The opioid trust doesn’t. VanKirk has defended the practice, saying there are other state boards that don’t allow public comment at meetings and that people can submit written comments to the trust through its website.
“If everybody from the public that wanted to get up and make comment at these meetings got up, the meeting would go forever,” VanKirk told Spotlight PA and WESA in March.
It’s common for public agencies to impose three-minute time limits for individual public comments, according to the Office of Open Records. The trust’s first public meeting lasted less than 46 minutes and its second was under 53 minutes.
Withholding documents: The order creating the trust does not mention the Right-to-Know Law, which requires public agencies to provide certain public records.
But Mutchler, the former Office of Open Records executive director, told Spotlight PA and WESA, “it is without question that transparency was on the court’s mind” when it created the trust.
“It would lead to an absurd result for this to be subject to the Sunshine Act but not to the Right-to-Know Law,” Mutchler said.
In response to requests for records, VanKirk said the trust is not subject to the state’s Right-to-Know Law. He declined to provide several requested records, including documents describing agreements between a bank and a law firm that the trust approved hiring. Spotlight PA has appealed the denials to the Office of Open Records.
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