IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Real Alternatives, :
Petitioner :
:
v. : No. 986 C.D. 2020
:
Department of Human Services and :
Equity Forward (Office of Open Records), :
Respondents :
Equity Forward and Mary Alice Carter, :
Petitioners :
:
v. : No. 1002 C.D. 2020
: ARGUED: March 7, 2022
Pennsylvania Department of Human :
Services (Office of Open Records), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 19, 2022
I join the Majority’s result and analysis concerning the Service Provider
Monthly Invoices but must respectfully dissent regarding the Program Development
and Advancement Agreements (PDAAs). I believe that the nature of those contracts
between Real Alternatives and the Service Providers is so inextricably bound with
Real Alternatives’ performance of its contract with the Pennsylvania Department of
Human Services (DHS) that they directly relate thereto. Examination of the sample
PDAA provided in camera (all of the PDAAs, we are told, have identical terms)
shows that, contrary to the Bagatta Affidavit, the money “paid” by the Service
Providers to Real Alternatives is not private money earned and owned by the Service
Providers.1 Rather, under the terms of the PDAAs, Real Alternatives withholds a
fixed percentage of the money invoiced by and due the Service Providers and keeps
it to underwrite other activities for which DHS will not pay. In other words, it is a
scheme to get DHS to unknowingly pay Real Alternatives for non-government
activities, and it uses the PDAAs as the vehicle to that end.
Thus, I believe that the PDAAs directly relate to the performance of
Real Alternatives’ government function. Real Alternatives does no counselling
itself; that function is ceded to the Service Providers. The government function
which DHS delegates to Real Alternatives is to recruit Service Providers and be the
conduit through which DHS pays them certain amounts for specific services. The
PDAAs amend that agreement such that DHS is also in fact paying Real Alternatives
to do different things for which DHS has not contracted. Thus, the PDAAs directly
relate to Real Alternatives’ performance of its government function because they
change the scope and extent of the functions it contracted with DHS to perform.
Finally, one overarching purpose of the Right-to-Know Law (RTKL)2
is to make transparent the way in which government funds are being spent. It is,
“remedial legislation to facilitate government transparency and promote
accountability.” McKelvey v. Pa. Dep’t of Health, 255 A.3d 385, 399 (Pa. 2021). A
device which re-routes government money through a “private” contract in order to
shield it from public scrutiny subverts that purpose. Therefore, disclosure is
appropriate not only under the terms of the RTKL but serves its underlying purpose
1
(Second Bagatta Aff. at 2, ¶10; Reproduced Record at 236a.)
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
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as well. For all the foregoing reasons, I would reverse the decision of the OOR, and
require disclosure of the PDAAs.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
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