PA State Universities, Weapons Policy and the Right to Know (Very Little)

On May 9th of this year, Raging Chicken Press was the first to report on Kutztown University’s attempt to quietly lift the ban on carrying weapons on its campus. In less than twenty-four hours, the story was picked up by the Associated Press casting Kutztown University into a national spotlight. In rapid succession, stories appeared in most regional newspapers and broadcast media. Thanks to excellent investigative work by reporters from the Pittsburgh Post-Gazette and the Allentown-based Morning Call, we learned that the change in policy had been happening under the radar of the media, faculty, staff, and students for well over a year. And, we learned, that the order to change the policy came directly from Governor Tom Corbett’s Office of General Council in consultation with PASSHE attorneys.

A few days after my initial story, I sent Right to Know requests to Kutztown University and PASSHE asking for several items, including:

  • “The ‘model policy’ on campus firearms policy from PASSHE legal counsel.” PASSHE Board of Governors Chair, Guido Pichini, issued a public statement on May 10, 2013 indicating such a policy had been shared with all 14 PASSHE universities. 
  • Correspondence, including email correspondence, between Kutztown University administrators and relevant staff and the Office of the Chancellor and the PASSHE Board of Governors regarding Kutztown’s change in gun policy going back to March 2012.
  • A copy of the legal opinion from PASSHE attorneys “concerning the constitutionality/legality of a ban on guns on PASSHE universities.”

Both Kutztown and PASSHE said they required a 30 day extension in order to carry out a “legal review” of my request for documents — their right under PA’s Right to Know law — with the exception of PASSHE’s “model policy,” which Kenn Marshall, PASSHE’s Agency Open Records Officer and official spokesperson sent to me a few days after my request was filed.

A month later, I received responses to my requests. Most of my requests were “granted in part, and denied in part” and were subjected to significant redaction.

What, if anything, did the documents reveal?

The short answer is: not much upon first glance.

The reason why the documents didn’t reveal much had a whole lot to do with Section 708 of PA’s Right to Know law entitled “Exceptions for public records,” specifically, 708(b)(10)(A). That section excludes records that reflect:

The internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees of officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations.

In short, the public is allowed access to the outcomes of deliberations, but we are not allowed to know how the decisions were made and who influenced those decisions. We are welcome to eat the sausage; we are just not allowed to know how it was made. Here is a sample of one of the redacted email exchanges I received: 

RTK Redaction Sample

My personal favorite was a redacted email from Kutztown University President Javier Cevallos’s Chief of Staff, Elsa Collins, dated May 10, 2013:

Elsa Collins Have a Nice Day Redacted

 

Not only was this document denied by the ubiquitous 708(b)(10)(A), is was also deemed not to “meet the definition of a public record” in that it is “legally privileged in that it constitutes client-to-attorney communications made for the purpose of providing legal advice,” according to Marshall. This redacted email was followed by three completely redacted sheets of paper under the title, “Comment on proposed policy.” The “Comment on proposed policy,” may have contained Kutztown University administration’s request for legal guidance from PASSHE as it was sent to Cathleen McCormack, the PASSHE lawyer assigned to Kutztown University. But, we don’t know that for sure. We do know that PASSHE likes green.

Pennsylvania’s current Right to Know law was signed into law in 2009 after public outrage in response to PA legislators voting themselves a pay raise in the middle of the night in 2005. The current Right to Know law in the state was considered a huge step forward, considering that Pennsylvania former open records law was “widely characterized as the nation’s worst,” according to Jan Murphy writing for the Patriot-News in December 2009. However, we should be under no illusions that sun shines in all corners of the Pennsylvania legislature and government. This is important.

Since at least 2008, we’ve seen model legislation from right-wing, corporate-sponsored organizations like the American Legislative Exchange Council (ALEC), show up on the floor of state legislatures across the country. It wasn’t until the Wisconsin uprising in 2011 and the investigative work by projects like Center for Media and Democracy’s “ALEC Exposed” webpage, that Americans began to wake up to the reality that our democracy was being bought out from underneath us. In Pennsylvania, ALEC, with the help of their sponsored right-wing state legislators, has been able to introduce no fewer than six model bills on issues ranging from health care policy to austerity measures for public-sector workers. To what extent would these ALEC model bills be considered “predecisional deliberations?” And, given that ALEC has been one of the organizations promoting “Castle Doctrine” or “Stand Your Ground” legislation, do we have a right to know if such organizations are influencing PASSHE weapons policy?

Did the Right to Know requests yield any useful information?

The short answer is: yes. Here’s what we know now that we did not know before.

First, Kutztown University and the other 13 PASSHE universities were working on revising the weapons policy for at about a year before Kutztown University lifted its ban on guns on April 19, 2013. An email from PASSHE’s Chief Council Leo Pandeladis was sent to “DUC – Presidents” and “DUC – Attorneys” (DUC = Dixon University Center, aka PASSHE headquarters) on May 15, 2012. The email indicated that there was an attachment containing “A revised weapons draft based on feedback from various campuses.” Given the May 10, 2012 date of Elsa Collins’s “Comment on proposed weapons policy” email discussed above, it would be a safe assumption that the comments made in that entirely redacted email were considered by PASSHE lawyers before they made any revisions and sent this email:

Pandeladis Email

 

Second, we now have a full copy of the “model policy” that PASSHE sent to all 14 universities. The policy is written as a “fill-in-the-blank” form that each PASSHE university can simply plug-in their name and “boom” they’ve got a new policy.

Model Policy Excerpt

While the ALEC-esque process of instituting a significant policy change should give us pause in its own right, there is another significant aspect of PASSHE’s attempt to impose this policy change that may lead to a protracted battle.

In September 2008, PASSHE Assistant Vice Chancellor for Labor Relations, Michael Mottola, notified the president of the faculty union, APSCUF, that it was instituting a smoking ban on campus – inside and outside. However, on May 19, 2009, the Pennsylvania Labor Relations Board ordered PASSHE to

Rescind the September 8, 2008 unilateral change to the smoking policy and reinstate the past practice of permitting bargaining unit employees to smoke on campus while outdoors.

The Board did not argue that there is some kind of Constitutional right to smoke; rather, it found that the new policy constituted a change in work rules that was subject to mandatory bargaining under Pennsylvania’s Public Employee Relations Act. The Board found that PASSHE was required to bargain collectively:

PASSHE shall:

  1. Cease and desist from interfering, restraining or coercing employees in the exercise of the rights guaranteed in Article IV of the Act.
  2. Cease and desist from refusing to bargain collectively in good faith with an employee representative which is the exclusive representative of employees in an appropriate unit, including but limited to the discussing of grievances with the exclusive representative.

In short, PASSHE got a little smack-down for violating the Public Employees Relation Act in its attempt to do an end around the collective bargaining process. PASSHE wanted to impose a new work rule on faculty and staff by decree. APSCUF said not so fast. The Board came down clearly on the side of APSCUF.

While allowing guns on campus raises a whole range of additional issues that cigarettes do not, most importantly the Second Amendment and new pro-gun legislation supported by right-wing state legislators and Governor Corbett, there is still a question about how this PASSHE policy change took place. PASSHE clearly did not learn from its 2009 smack-down. An armed campus presents serious issues for the workplace, which were never addressed as part of PASSHE’s desire to sneak in a new gun policy behind the backs of students, parents, faculty, and staff.

Third, the image reigns supreme. That PASSHE would take the risk of violating the PA Public Employee Relations Act again, suggests that there may have been some concern about the reaction by parents of PASSHE university students and Pennsylvanians more broadly. Indeed, the misdirection and misinformation by University Public Relations officials at PASSHE universities that I reported on in a May 15, 2013 article points squarely to this conclusion.

A week before Raging Chicken Press published the first article on Kutztown’s stealthy changes to its weapons policy, the president of the local chapter of the faculty union, Paul Quinn, began receiving death threats. As I reported, faculty first learned of the death threats at a May 9, 2013 meeting of the unions Representative Council – just a few hours after Raging Chicken Press ran our first story on the issue. Apparently, the university administration was beginning to realize the cat was out of the bag. In a May 14th email sent to acting PASSHE Chancellor Peter Garland, KU President Javier Cevallos reported on the growing media interest in the story and relayed

that someone (not a hard guess, see his blog https://kuxchange.wordpress.com) leaked that Paul Quinn has received death threats. It has gone as far as letting the press know what the notes slipped under his door said.

Cevallos email to Garland

For the purposes of full disclosure, that “someone” to which Cevallos refers is yours truly. KU XChange is another blog I own, focusing issues related to labor in higher education, specifically issues on Kutztown’s campus affecting our members. I have been active in our local union’s leadership since I first took a job at Kutztown in 2002 and currently serve as the chair of our public relations committee.

While it’s flattering to know that Kutztown’s president reads at least one of my blogs, it is remarkable that Cevallos would devote a significant part of his email directing the acting Chancellor to the “leak” (even if the chronology is off – the Morning Call reported on the death threats three days before my article on the death threats was posted here and on the KU XChange).

Chipping away at our democracy

The story of welcoming guns on PASSHE university campuses is far from over. In response to public outrage, the Chair of PASSHE’s Board of Governors, Guido Pichini, issued a statement saying that the Board has asked universities to freeze their efforts to update their weapons policies until a newly formed Public Safety and Security Task Force reviews “the issue of weapons on campus in order to help ensure consistency across the System and that the policies comply with the law.” Perhaps this time around there will be a little more public scrutiny of the issue and PASSHE will include students, faculty, staff, and members of the community in the discussion.

What is most troubling is that PASSHE claims that the decision to lift the weapons ban on campuses began when a “number of individuals” raised concerns about a campus weapons ban. On May 10, 2013, Cevallos sent out the official “PASSHE Weapons Policy Statement,” which explained the reason for the policy changes:

In the spring of 2012 questions were raised by a number of individuals concerning campus firearms policy. In order to provide guidance on the issue, PASSHE legal counsel shared a model policy for consideration that addressed both public safety and constitutional concerns.

PASSHE universities have the ability to prohibit weapons, including legally registered firearms, in academic buildings, student residence halls, dining facilities, student union buildings, athletic facilities and recreation centers or while attending a sporting, entertainment or educational event on university property or sponsored by the university. However, PASSHE’s policies also must be consistent with Pennsylvania law, which allows individuals who are properly permitted to carry a firearm “on or about one’s person or in a vehicle throughout the Commonwealth.”

Just who are these individuals who “raised concerns?” Was there an official complaint? Some reports say that several students raised these concerns. Other reports point only to anonymous individuals. At this point, however, we don’t know what concerns were raised or the merit of those concerns. Raging Chicken Press’s request for the “legal opinion from PASSHE’s attorneys concerning the constitutionality/legality of a ban on guns at PASSHE universities” was denied. Ken Marshall explained the reason:

The legal review has determined that the record requested does not meet the definition of a “public record” as defined by 65 P.S. §67.102; therefore, Request No. 4 is denied. The information requested is legally privileged in that it constitutes client-to-attorney communications made for the purpose of providing legal advice.  See Gilliard v. AIG Ins. Co., 609 Pa. 65, 15 A.3d 44 (2011).

So, anonymous individuals who may or may not have been students “raised concerns,” which led to a lift of campus weapons bans. There was no court decision finding that PASSHE universities must lift their weapons bans. There was no specific legislative action directing PASSHE to do so. My guess is that PASSHE lawyers decided to try to avert a lawsuit by sneaking in a policy change. Democratic processes subverted for fear of litigation.

There is a bigger story here that is only beginning to come into focus. The individuals who “raised concerns” did so in the wake of new “Castle Doctrine” legislation in Pennsylvania signed into law in 2011 that includes “Stand Your Ground” provisions. The Pennsylvania “Stand Your Ground” provisions are not as extreme as the ones in Florida that emboldened George Zimmerman to kill Trayvon Martin, but they lean in that direction. We didn’t get here by accident.

In the weeks and months ahead we hope to uncover the players behind PASSHE’s new weapons policy and those responsible for chipping away at our democracy. It’s time to find out who’s laughing at us behind closed doors.

 

 

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