The Allegheny County Jail Oversight Board and two of its members are being sued for allegedly violating Pennsylvania’s Sunshine Act, which requires government deliberations and decisions to take place in public, and with notification in advance.
In a complaint filed in Allegheny County Common Pleas Court in late May, plaintiff Rachel Radke argues that the board has regularly curtailed the public’s access to information about the jail, including deaths, overdoses and conditions in the facility. She accuses the board of wrongly limiting public comments and questions during board meetings and improperly deliberating in closed-door executive sessions.
“The board is the means by which we, the public, have an ability to affect what happens in that jail. It is so important that the board is functioning and acting in good faith and complying with the law,” Radke said. “I just felt like I was watching them fail to do that month after month, and there was no accountability.”
The nine-member board is charged with overseeing jail operations and conditions, ensuring the health and safety of incarcerated people and confirming the appointment of wardens by the county executive. Last month, it sought to hire drug court coordinator and former probation officer Karen Duffola as a “jail liaison” to provide regular assessments of conditions inside the facility.
But Radke’s lawsuit was spurred by the fact that the vote to hire Duffola was not on the meeting agenda, and the board’s chair, Common Pleas Judge Elliott Howsie, did not take public comment until after the vote.
The complaint asks the court to nullify the vote to approve the jail liaison and declare that the board has violated the Sunshine Act. Radke called the circumstances of Duffola’s hiring a “blatant violation” of the Sunshine Act.
“I'm not a lawyer, but the Sunshine Act is really quite easy to understand and work with,” she said. “These people are just going to keep doing this. Someone has to hold them accountable.”
The Sunshine Act requires groups governed by state law to post an agenda including a list of any deliberations or official actions, such as votes, that might be taken at the meeting no later than 24 hours in advance. The groups also must provide “reasonable opportunity” for members of the public to comment on “matters of concern, official action or deliberation” before the board takes official action.
Howsie and fellow board member Beth Lazzara are named in the suit in their official capacities as Common Pleas Court judges. Both declined to comment.
The complaint also alleges that the board misuses executive sessions, which are used to address topics the law says a board has good reason to discuss privately, such as ongoing litigation and personnel matters.
Radke argues that some closed meetings have covered topics that should be discussed in public, such as allegations of forged recreation logs and the jail’s overdose policy.
“Frequently during the board meetings, both the warden and members on the board will say, ‘We're not going to talk about that. We're going to talk about it in executive session,’” she said. “And it's often surrounding things that I feel don't qualify. It's being used to hide things from the public that are maybe unflattering to the jail administration.”
Radke is also concerned that the board offers opportunities for only limited public comments. She claims that Howsie hasn’t been reading public comments submitted online for several months and instead often says that the board received no comments, while members of the public say they submitted them.
The complaint also criticizes Howsie’s oft-repeated request that public commenters not ask questions of the board or jail officials.
According to the state’s Office of Open Records, board members are not required to respond to questions or comments directed to them, but meeting attendees may ask them.
Radke wrote and filed the lawsuit herself with the help of the artificial intelligence chatbot ChatGPT. Now, the American Civil Liberties Union of Pennsylvania is helping her to find a pro bono lawyer to move the case forward.
“Bodies are supposed to honor the law, whether it's the Constitution or the Sunshine Act or any other laws that apply,” said Vic Walczak, legal director for the ACLU of Pennsylvania. “Unfortunately, the laws are not self-executing, which means that occasionally government officials are going to violate them. And that's when lawsuits are important.”
The state’s Office of Open Records trains officials on how to follow the Sunshine Act, but it can’t enforce the act. Complaints like the one Radke filed are often the only way to compel adherence to the law.
Paula Knudsen Burke, a Pennsylvania attorney with the Reporters Committee for Freedom of the Press, said suits like Radke’s are fairly rare, though there have been a few higher-profile examples in the state in recent years.
In May 2022, a Lancaster County judge ruled in favor of two county residents who filed suit alleging Sunshine Act violations against county commissioners. The case was similar to Radke’s: Lancaster officials failed to include the potential removal of the county’s absentee ballot drop box on a Board of Elections meeting agenda. The judge found that the commissioners had violated the Sunshine Act and barred them from removing the drop box until after holding a meeting and properly notifying the public.
Outcomes like these are essentially a mulligan for the agency, said Burke: Judges often instruct defendants to “cure” the action by redoing it properly. Sometimes they’re ordered to take remedial Sunshine Act training.
The act “gives the judge a lot of discretion about what they're allowed to do,” Burke said “Often judges will just say, ‘Hey, you didn't give public comment. You need to allow for that.’ And then the action can stand.”
For its June meeting, the Jail Oversight Board’s agenda included ratifying the earlier vote after public comments — a move that might have served to address concerns the earlier action violated the Sunshine Act. The board failed to vote on the issue, however, after some board members and jail administrators walked out.
Any litigation about the incident could be complicated by the contentious relationships between board members. During the meeting in which the board voted to hire Duffola, board member and Allegheny County Councilor Bethany Hallam warned her colleagues that they were in violation of transparency laws.
“I presented them with the Sunshine Act and said, ‘You think that you are following this law? Because I know that you're not.’ And they don't even care,” she told WESA.
Hallam said she supports the suit and has personally experienced the actions alleged. She plans to file a separate lawsuit, which would compel the board to fulfill its legal obligation to provide oversight for the health and well-being of incarcerated people.
“They believe that they are above the law, and people have enabled them to think that. It's time that they face consequences for their actions,” she said.
It’s unclear who will represent the oversight board in court. Unlike County Council and other government bodies, the board does not have its own lawyer. The county Law Department did not respond to questions about whether it would represent the board.
But Burke said successful litigation can spur positive organizational change. That’s what Radke is hoping to accomplish.
“My goal is to just kind of move the dial towards more transparency and towards the board doing more of their job,” Radke said. “And, you know, if we look at that as a goal, I think we've already accomplished some of it.”
