Just hours after news of a sensitive telephone call between Gov. Ed Rendell and Pittsburgh officials became public on Nov. 23, city officials called for an investigation. But while city councilors sought the "culprit" who let a Pittsburgh Post-Gazette reporter in on their deliberations, few noted the possibility that five members may have broken state law -- by holding the backroom strategy session in the first place.
The P-G's lead story, by Tim McNulty, quoted from a conference call between Rendell, Mayor Tom Murphy, and at least four city councilors. The call was set up at Murphy's behest, according to council members, in an effort to keep Council President Gene Ricciardi and Councilor Doug Shields from abandoning their support for the city's financial recovery plan.
That plan, which includes workforce cuts and tax hikes, was controversial to begin with. In the phone conversation, Rendell made matters worse by suggesting the city could still impose a commuter levy, despite his promises to legislators to the contrary. Rendell also called General Assembly members "cowards."
City councilors, though, focused on another sentence from McNulty's report: "A City Council member invited a Pittsburgh Post-Gazette reporter to listen in on the conference call."
"As far as I'm concerned, I was violated, and a crime was committed against myself, Gene Ricciardi," Ricciardi told reporters. He announced that he had asked city Solicitor Jacqueline Morrow "to use the tools of subpoena power" and potentially demand sworn testimony from councilors in order to find the "culprit." Any findings of criminal violations should be turned over to the District Attorney or U.S. Attorney, Ricciardi said.
Asked what the crime was, Ricciardi said the call may have been recorded, in violation of state wiretap laws, though he admitted he had no evidence.
"It falls under the state's wiretap laws," Councilor Bill Peduto speculates. "There could also be issues of invasion of privacy and trespass."
All nine councilors deny helping McNulty gain access to the call and say they support an investigation. In a Nov. 23 letter to Morrow, Murphy ordered a "full investigation" to "determine thoroughly and exhaustively what if any ethical violation and/or any federal, state or local criminal violations might have occurred."
Is it overkill to call for subpoenas when a conversation between public officials, on public phones, about public business, has become public? Ricciardi thinks not.
"The journalist was given access by a council member, and that was without my permission," he says. If the crime "was not built in law, it's built in ethics."
Under the state's Sunshine Act, a government agency must open its discussions to the public whenever a majority of the agency's decision-makers are present. There are limited exceptions, but budget discussions aren't among them, says Teri Henning, lawyer for the Pennsylvania Newspaper Association.
The question is whether five councilors, a quorum for the nine-member body, were on the call.
The phone number and access code needed to get on the call were given only to a few councilors. Councilors Len Bodack, Twanda Carlisle, Jim Motznik and Luke Ravenstahl oppose the recovery plan, and say they weren't invited to join the call. So does Councilor Sala Udin, who supports the recovery plan.
Three councilors -- Ricciardi, Shields and Alan Hertzberg -- say they were on for all or most of the call. Peduto says he dialed in for the last five minutes. All four deny letting McNulty listen in. Some suggest a fifth councilor must have been secretly on the line.
If so, the Sunshine Law's prohibition on closed-door meetings came into effect the moment Peduto dialed in. Presumably, the fifth councilor would have known that. So would the councilor who provided a clandestine listener with the phone number and access code.
"To the extent that a quorum of the council participated in this telephone conference, and the call included any discussion by council members about these tax issues, there is a strong argument that the telephone meeting should have been conducted in public," says Henning.
"If there were five or more members, [the conversation] should have been open to the public anyway," agrees Motznik. He adds: "I wasn't on the call."
Officials who illegally bar the public from deliberations have little to worry about. "If you can prove that an agency member intentionally violated the [Sunshine] Act, and that's hard to do, they can be fined $100," says Henning. Courts can nullify actions taken at illegal meetings, she adds.
By contrast, the stakes are higher for reporters who sneak behind government's walls of secrecy. Ricciardi's calls for an investigation came four days after a federal judge in Rhode Island sentenced television reporter Jim Taricani to six months in prison: Taricani had refused to reveal the confidential source of an FBI videotape showing a city official accepting a bribe. The Washington Post reports that eight journalists nationwide were recently found in contempt of court for refusing to reveal sources. Several face possible jail time.
Thirty-one states, including Pennsylvania, have laws that prevent the prosecution of reporters who conceal sources. But there is no such federal law, so federal prosecutors and judges can throw reporters in jail.
Nonetheless, P-G editor David Shribman says his paper won't cooperate with any investigation, and claims no concern "that politicians talking about that kind of silliness will affect the way we do our jobs."
Ricciardi says he isn't calling for subpoenaing McNulty. "This is not to muzzle the media," he says.
Nonetheless, says Henning, "Any time there are calls for subpoenas or criminal investigations, they affect the reporting process. Even the threat of a criminal investigation can make sources refuse to talk to reporters." Calls for an investigation seem misplaced, she adds. "The issue of who invited the reporter to sit in on the call seems far less important than whether the public has access to the information that was discussed." c