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By Mario Koran, Wisconsin Watch
By Angela Couloumbis of Spotlight PA and Kate Huangpu of Spotlight PA
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HARRISBURG — For nearly two months, a team of advisors has been working to ensure Democratic Gov.-elect Josh Shapiro has a smooth transition from attorney general to head of the nation’s fifth-most populous state.
Their mission: reviewing state agency business and making recommendations to help guide Shapiro as he takes over a bureaucracy of roughly 80,000 employees that handles more than $100 billion annually in state and federal dollars.
Yet the public may never know anything about the team’s work — or who is funding it.
That is because the more than 300 members of the Democrat’s transition were required to sign a three-page nondisclosure agreement that bars them from publicly sharing information about their activities. If they breach the agreement, they can be sued and face a heavy fine.
And because the team is organized under the federal tax code as a so-called “dark money” group, it does not have to publicly disclose the private interests that may be underwriting its work. Shapiro’s inaugural team, which will pay for his swearing-in day events next week, is similarly organized and is also shielding donor details.
The tight grip on information suggests Shapiro is already running his administration differently than recent predecessors in at least one way: transparency. And there are signs that he may maintain a level of obscurity about his administration’s inner workings as he begins his first term next week.
For instance, Shapiro has not said whether he will continue Wolf’s practice of making his public schedule accessible online once he takes office. Nor has he committed to adopting Wolf’s prohibition on accepting gifts, one so strict that Wolf once famously pulled out a dollar to pay for a bottle of water that was given to him during a radio interview. That ban applies not just to Wolf and his executive office staff, but to employees of all executive agencies.
In an email, Shapiro spokesperson Manuel Bonder said transition teams typically handle sensitive and privileged information, which makes confidentiality agreements not just necessary, but common.
“Like past transitions, we believe it is critically important to protect the confidential information we receive — like sensitive personal information — and the privacy of those applying for jobs.”
Bonder did not address Spotlight PA’s questions about whether Shapiro considered limiting the nondisclosure agreement just to certain aspects of the transition team’s work, such as sensitive law enforcement documents, or personnel records.
He also would not say whether such secrecy clauses would carry over into Shapiro’s administration, and whether any of its high-level members would be asked to sign one.
Bonder did say that upon being sworn in, Shapiro will swiftly adopt ethics standards that “will establish high standards for integrity and accountability among Commonwealth employees.” He did not elaborate, although transition officials said the standards will address the issue of whether government employees can accept gifts.
The use of nondisclosure agreements, or NDAs, in government matters has been widely criticized by First Amendment scholars, who question the legal validity of forcing public employees to stay silent.
Most famously, when NDAs were used by former President Donald Trump in his presidential campaign, a federal court ruled the agreements were unenforceable due to their broad reach. Many First Amendment lawyers took that decision as a sign that courts would not enforce similar attempts by political campaigns to swear their employees to secrecy.
Still, nondisclosure agreements are becoming increasingly normal in politics, especially in well-funded and well-lawyered campaigns, according to interviews with government transparency lawyers and professors.
“Like past transitions, we believe it is critically important to protect the confidential information we receive — like sensitive personal information — and the privacy of those applying for jobs.” — Shapiro spokesperson Manuel Bonder
“It’s like lawyering up where you might not previously had thought about lawyering up,” said Mark Fenster, a law professor at the University of Florida Levin College of Law.
Transition teams hold somewhat of a unique status. Though they deal with matters of public policy, they are not government entities. As a result, their members are not entitled to the same First Amendment rights as public employees.
Shapiro’s transition team, for instance, is organized as a 501(c)4 nonprofit organization under federal tax law, according to transition officials. These kinds of organizations are often referred to as “dark money” groups because they can accept private donations to pay for their work, but are not required to reveal the identity of donors, or the amounts contributed — although they could choose to do so.
Law professor David Hoffman of the University of Pennsylvania Carey Law School said NDA breaches have been allowed by courts when the agreement was found to have covered up an unlawful action.
“Whether the NDA is enforceable is hard to know before it gets argued in court,” said Hoffman. He said courts may see the breach as being in the public interest if it reveals useful information such as proof of fraud or malpractice by the administration.
Though previous incoming administrations have also restricted the release of transition-related information, the scope of Shapiro’s nondisclosure agreement is more expansive than the paragraph-long clause to not disclose information used by outgoing Democratic Gov. Tom Wolf.
Wolf had his team agree to that clause when they signed a broader code of ethical conduct ahead of the transition. The outgoing governor adopted the code from one of his predecessors, former Republican Gov. Dick Thornburgh, according to the governor’s office. (Shapiro also has a code of ethical conduct for his transition team, but that is separate from the NDA.)
Shapiro’s nondisclosure agreement states that confidential or proprietary information, which can include strategies, political plans, or phone logs, is not allowed to be shared without the written consent of the Shapiro team. It also states that any unauthorized use or disclosure of voter or donor data will result in a $50,000 fine.
The NDA also raises the specter of litigation: “In the event of any legal action to enforce this Agreement or to recover damages or other relief on account of any breach of this Agreement,” the document states, Shapiro’s transition “will be entitled (in addition to any and all other remedies) to recover any and all costs and expenses (including, without limitation, reasonable attorneys’ fees) that it may incur in connection with such action.”
Several members of former Republican Gov. Tom Corbett’s transition team contacted by Spotlight PA said they could not remember if they were required to sign a secrecy pledge.
However, Wolf and Corbett’s inaugural teams did publicly release the names of private donors who funded Inauguration Day planning and swearing-in day activities.
Despite being asked multiple times, Shapiro’s Inaugural Committee has declined to provide that same information.
Shapiro’s inauguration evening bash is shaping up to be a must-watch event. The incoming Democrat chose to hold the event at Rock Lititz, a state-of-the-art production facility where big-name artists rehearse before concerts. Shapiro’s musical lineup for the night will include legendary singer-songwriter Smokey Robinson and rapper-singer-songwriter Wiz Khalifa.
For his first inauguration, Wolf raised nearly $3 million, and released the names of any person who donated over $500. Wolf also imposed a $50,000 cap on donations.
Corbett spent an estimated $3.5 million on his inauguration. In the lead-up to swearing-in day, his inaugural committee declined requests to publicly identify donors — but their names were listed on an inaugural program that was handed out to attendees at his $150 per-ticket inaugural evening bash at the Pennsylvania Farm Show.
Angela Couloumbis tracks the lobbyists with access to top elected officials and the money that sometimes shapes which policies are prioritized in state government. Her stories have illustrated the nexus between politics and policy and traced how Pennsylvania’s weak campaign finance laws have allowed elected officials to shirk transparency.
Kate Huangpu follows how and why the state government works the way it does, paying special attention to how the structure of our government expands or excludes who can participate in democracy. Huangpu also tracks major legislation and the impact that it has on communities across the state.
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