The Tribune Democrat, Johnstown, PA

State News

January 28, 2013

Court to weigh secrecy of Pa. Turnpike lawyers

HARRISBURG — The state Supreme Court on Monday announced it would hear arguments in March about a dispute between the attorney general's office and the turnpike commission over disclosure of records in a public corruption investigation that has lasted more than three years.

The commission wants the high court to overturn a decision by a grand jury supervisory judge that sided with prosecutors who want access to communications between the agency's lawyers and the commissioners or employees. The commission argues that those exchanges are protected by lawyer-client privilege, while the attorney general's office says their disclosure is needed to keep the government honest.

In an April ruling, Judge Barry Feudale described the grand jury investigation as involving potential crimes related to "employment practices, procurement practices and the use of commission resources to conduct political activities."

Government lawyers, Feudale wrote, "owe their ultimate allegiance" to the people of Pennsylvania, and otherwise the agencies would be without oversight, the attorney general's office would be frustrated in investigating wrongdoing by public officials, public confidence in government would be eroded, and people would have to pay taxes without accountability about how they are spent.

The turnpike commission's lawyers said Feudale's decision, if allowed to stand, would give state prosecutors "unfettered access" to every agency record, including "all emails existing on an agency server."

A September court filing by the commission said it had produced more than 155,000 pages for the investigation. The commission said it would not object to some sort of review to see if records should be disclosed but "objects to a process whereby its privileges are summarily discarded."

The attorney general's office wrote in November that allowing state government entities to claim privilege for their attorneys would prevent meaningful oversight of their operations and decisions.

"Government lawyers have additional obligations and responsibilities, setting them apart from privately retained counsel whose sole concern is to protect their clients' interest and advocate on their behalf," the attorney general's office argued. "Government lawyers have an additional duty to act in the public interest and even rectify wrongful official acts where necessary."

The prosecutors said they were investigating potential crimes by the commission, commission members, employees or people who do business with the agency.

"This investigation involves, among other things, the conduct of state officials and employees in the performance of their duties and also of persons attempting to influence them or who might benefit from influencing them," the attorney general's office wrote.

The turnpike commission disclosed in October 2009 that prosecutors were seeking documents, but did not explain why.

At that time, activities at the turnpike had just been a prominent focus of testimony during the public corruption trial of former state Sen. Vince Fumo, a Philadelphia Democrat now serving a federal prison term after being convicted of 137 criminal counts.

In 2010, former turnpike chairman Mitchell Rubin pleaded guilty to felony obstruction of justice in relation to the Fumo investigation. Ruth Arnao — Rubin's wife, Fumo's co-defendant and a former state Senate employee — was convicted and served nearly a year in prison for fraud and obstruction.

The turnpike hired its first chief compliance officer in September, former FBI agent David Gentile.

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