Privileged Information

The Pennsylvania legislature spent nearly $10 million during the past two years on private lawyers but routinely shielded the purpose of those expenses, hiding which lawmakers and their staff required representation — and why, according to a new investigation.

A review of thousands of pages of legal invoices and engagement letters from 2019 and 2020 by The Caucus and Spotlight PA shows the cases ranged from public records fights to secret personnel problems to attempts to overturn last year’s presidential election.

In many instances, Republicans and Democrats in both chambers blacked out the reason for hiring lawyers, flouting case law that requires them to make public those critical details. Other records were so vague it was impossible to identify the reason for the representation.

With near-limitless taxpayer dollars at their disposal, legislative leaders can fund all types of legal battles, defending themselves and colleagues against allegations of wrongdoing, advancing their political interests, and going on the attack against their political opponents.

The decisions on which lawyers to hire, and at what rate per hour — sometimes as high as $750 in the timeframe reviewed — are made behind closed doors by leadership, without input from colleagues and, unlike many state contracts, with virtually no oversight by a third party. Many of those same lawyers are also generous campaign donors, the investigation found.

The expense records provide a window into both the small and large political fights prioritized by top leaders, from harassment cases to the $1.2 million cost for election matters in 2020 — a running tab that is about to skyrocket again as GOP leaders in the Senate embark on another review of President Joe Biden’s win in the state.

“The public’s right to know with respect to these sorts of records is incredibly high,” said Gunita Singh, a staff attorney at the Reporters Committee for Freedom of the Press, a nonprofit that works on First Amendment and open records cases. “There’s tremendous public interest in scrutinizing how these individuals tasked with representing our interests are conducting themselves … including how they’re spending our tax dollars.”

The Pennsylvania legislature — one of the largest and most expensive in the U.S. — has fought to hide details of how it spends tax dollars on legal matters. In the Senate, records for a handful of matters were redacted to the point of not disclosing any information at all about their purpose. In the House, it was worse: Roughly half of their engagement letters were redacted.

Democrats in the House and Senate did not return requests for comment. Republican legislative leaders defended their use of outside counsel, saying lawyers on the legislature’s payroll, whose roughly $200,000 salaries are more than even legislative leaders, often have other duties and cannot devote the time or work to these cases.

They also said the redactions were required to protect sensitive information that, if revealed, could jeopardize legal strategy. They argued that details are blacked out carefully and on a case-by-case basis, usually in instances when a lawyer has been hired for a private matter and there isn’t a public court docket.

The news organizations, however, found that both chambers blacked out information even in high-profile cases that are already in the courts and have been public knowledge for years.

The legislature’s handling of legal bills is among the starkest examples of how it spends tens of millions of dollars in taxpayer money each year while shielding most of the details from the public — the subject of a year-long and ongoing investigation by The Caucus and Spotlight PA.

The investigation previously revealed that lawmakers spent $203 million from 2017 through 2020 just to feed, house, transport, and provide rental offices and other perks for themselves and their staff. About one in 10 of those dollars — $20 million in all over the four years — went directly into lawmakers’ pockets in the form of reimbursements for meals, mileage subsidies, per diems, and other expenses.

In response to the reporting, Republicans who control the Senate for the first time began publishing the chamber’s expenses online on a monthly basis. The House is considering a similar move. But even with those changes, though significant, the public still cannot easily assess all of the legislature’s spending — and, in particular, its spending on legal matters.

As a result, The Caucus and Spotlight PA requested and obtained 4,100 documents earlier this year for details on legal bills and private attorney engagements for 2019 and 2020.

Records show private lawyers were typically paid roughly $250 to $450 per hour, with one earning as much as $750 per hour — described as a discounted rate — for their time. Taxpayers also picked up the bill for travel-related and other expenses, like meals, those lawyers incurred while working on the cases.

For records that were redacted, the news organizations attempted to identify the subject of matters by comparing costs and legal firms with other public records— a labor-intensive and difficult process.

Atheists, fireworks, and personnel problems

The documents covered several types of legal matters over the two years reviewed: the death penalty; the Mariner East pipeline system; the state’s fireworks law; whether atheists can deliver the opening prayer on the House floor; a ban on Medicaid funds being used for abortions; and efforts to block a community college in Erie opposed by the Senate’s onetime GOP leader, Joe Scarnati.

In one instance last year, the House paid an outside firm nearly $50,000 to help then-Speaker Mike Turzai, a Republican, write a law review article about school choice, an issue he championed during his legislative career. The invoice shows four lawyers spent 117.4 hours on this, having regular calls and meetings with Turzai between February and June 2020, when Turzai resigned for a job in the private sector.

During that time frame, Turzai paid the same firm, Porter Wright Morris & Arthur, an additional $64,982.50 for help with another law review article, this one on redistricting, financial records show. A year earlier, in 2019, he separately used a special account reserved for the speaker to purchase $1,118 in additional copies of another law review article he had authored. Financial records don’t specify the topic of that article.

Another quick but pricey case centered around Democratic Gov. Tom Wolf’s problem-laden waiver program for businesses to remain open during the early months of the pandemic, when large swaths of the economy were forced to shut down.

After a Senate committee approved subpoenas in May 2020 to get documents related to the waiver program, Republicans in the chamber hired Kleinbard to litigate the matter. The move came at a time when the Wolf administration was refusing to release key details about the program.

The price tag: more than $90,000. The Wolf administration separately spent another $79,130 to fight the subpoena, according to the governor’s office.

Senate Democrats paid $174,000 to a firm in 2019 and 2020 to handle labor and employment matters, including to investigate allegations by an Allentown woman that then-Sen. Daylin Leach had sexually assaulted her decades earlier. Leach denied the allegations.

In that same time period, Senate Republicans paid three law firms double that amount — $343,702 — to handle sexual harassment allegations by two women, both former employees of the Senate, against the chamber’s onetime security chief. The women sued the Senate and the former security director, Justin Ferrante, in 2018.

Taxpayers continued to be billed this year to defend both the chamber and Ferrante, and the full cost is still unknown.

Those two cases represent just a fraction of the costs involving employment-related matters for which both chambers hired outside lawyers. In most of those cases, the details are shrouded in redactions or left intentionally vague, making it impossible to know which employees or elected officials are involved and why.

The 2020 election continues

Starting early last year, the Senate spent at least $1.2 million on election matters in the lead-up to and aftermath of the presidential contest — and the actual amount may be much higher, given that there is often a delay in billing. Those costs are only expected to grow in the coming months and into next year as Senate President Pro Tempore Jake Corman (R., Centre) is leading an effort by Republicans to conduct a controversial review of last year’s election.

The Senate paid the law firm Holtzman Vogel Baran Torchinsky & Josefiak $775,000 for election matters between May 2020 and the end of year, records show. It paid $348,000 to another firm, Obermayer Rebmann Maxwell & Hippel where the primary lawyer handling the election cases was state Republican Party Chairman Lawrence Tabas.

Tabas, according to invoices, was paid $575 per hour.

Yet another firm, Stradley Ronon Stevens & Young, was paid at least $129,000 by the House and Senate in the months after the election.

A $72,299 bill for just one week of work — three weeks after the Nov. 3 election — involved Republican U.S. Rep. Mike Kelly’s unsuccessful challenge to the mail voting law that passed with near-unanimous GOP support a year earlier.

Invoices in the case show four attorneys were paid $390 to $750 per hour, including as much as $111 for 15 minutes of work sending emails.

The Kelly case is similar to one that a group of 14 House Republicans brought in recent months to declare Act 77 of 2019, which permitted no-excuse mail voting for the first time, unconstitutional. The costs for that case, filed in late summer, won’t be known for months or longer.

The legislature’s bills only show a fraction of what ongoing election challenges have cost taxpayers. They don’t reflect the $3.1 million in tax dollars that Gov. Tom Wolf’s administration had paid to defend itself in those and related cases, according to numbers provided by the governor’s office.

Asked whether continuing 2020 election-related legal fights is a good use of taxpayer money, Corman spokesperson Jason Thompson said the state is “facing a crisis in confidence with our voters” not believing their vote was counted.

“Whatever we have to spend in that fight is going to be well worth it,” he said.

Solving ‘the puzzle’

When it modernized Pennsylvania’s public records law more than a decade ago, the legislature gave itself a large carve-out, exempting itself from having to turn over records, such as emails, that the executive branch has to make publicly available.

Still, the body put itself on the hook for public access to its financial records, including spending on contracts with private companies, such as law firms.

But from the start, lawmakers were averse to providing detailed information on legal bills. That led to a landmark state Supreme Court ruling in 2013 that directed lawmakers to provide a general description of the legal services being provided. The justices also said the identity of the person being represented was not privileged.

“It means they should be taking a scalpel to these legal invoices and not a hatchet,” said Melissa Melewsky, media law counsel at the Pennsylvania NewsMedia Association, when asked how the legislature should handle redactions. (The Caucus and Spotlight PA are members of the organization.)

One legal matter that started in 2019, records show, involved state Sen. Sharif Street, then a freshman Philadelphia Democrat and now a potential candidate for U.S. Senate. But in billing invoices and other documents reviewed by the news organizations, the chamber redacted every reference to what the case was about.

House Republicans similarly redacted details on all 140 pages of legal bills for a single case. The caucus for that case paid Philadelphia-based Dilworth Paxson $1.5 million in 2019 and 2020 — making it possibly the most expensive case in either chamber during those years.

The case, The Caucus and Spotlight PA later learned, involved one of the most high-profile and public legal fights in the legislature during the last seven years: a massive lawsuit over inequities in how Pennsylvania funds its public schools — and how lawmakers have resisted making changes to fix the problem. Arguments in the case are scheduled to start this fall.

The news organizations were only able to determine the nature of the case because the information was included — in unredacted form — in separate expense reports obtained through an earlier public records request.

Such inconsistencies, said Melewsky, raise “a red flag.” Compounding matters is that Democrats and Republicans in the House and Senate each have their own lawyers review public records, including legal bills, and decide what information to redact.

“If you asked four different lawyers a question, you are going to get four different answers. You are seeing some of that play out here,” Melewsky said. “When in doubt, agencies are more inclined to redact rather than release, which is exactly the opposite of what should happen.”

Indeed, Senate Republicans, who hired their own law firm for the school funding lawsuit, did not redact key details in billing records turned over to The Caucus and Spotlight PA.

The records revealed that the caucus paid Harrisburg-based K&L Gates $1,577,594 in 2019 and 2020 for that work, making the firm the highest paid by either the Senate or House in that time frame. The total included expenses for lawyers who charged $470 per hour and four academics who served as expert witnesses at a cost of $38,580.

Singh, who reviewed some of the legislature’s legal records, said they appeared to place the burden on the public to “solve the puzzle” of what they are spending money on instead of the government making it easy to understand what it’s doing.

“The pervasive redactions make the records nearly incomprehensible in some cases,” she said. “Sure, they may be technically releasing the records. But are they honoring the spirit of the open records law?”

Coming on Wednesday: Politically connected law firms cash in on millions in legal work doled out by Pa. lawmakers.