State denies Washington Co.鈥檚 open records request for tourism agency鈥檚 documents
Commissioners lodged complaints about how the nonprofit is spending tax money
The state’s Office of Open Records office has rejected Washington County’s attempts to compel the county’s Tourism Promotion Agency to turn over numerous documents after ruling the organization is nonprofit that does not fall under the Right-To-Know Law.
But while the office sided with tourism and dismissed the county’s appeal due to a lack of jurisdiction, it acknowledged that there are other mechanisms to force compliance, such as withholding the annual hotel tax revenue that funds more than 90% of the agency’s budget.
“While said entity does receive a vast amount of its funding from government sources, i.e. tax revenue and state grants, this fact alone is not enough to transform a private nonprofit corporation into a local agency subject to the RTKL,” the OOR wrote in its decision.
The Aug. 5 decision comes months after the commissioners lodged complaints about how the tourism agency is spending tax money, illustrating a growing rift between the Republican-controlled board and the leadership of the nonprofit tasked with promoting tourism in Washington County.
County solicitor Gary Sweat filed the open records request with the Tourism Promotion Agency on April 24 asking for the organization’s articles of incorporation, bylaws, board minutes, bank records, joint operating agreement with the Washington County Chamber of Commerce, employee contracts and other documents. Tourism responded that it was not required to comply with the request since it does not fall under the Right-To-Know Law, prompting Sweat to appeal to the open records office.
Sweat announced during Tuesday morning’s agenda-setting meeting for the commissioners that the office had rejected their appeal, and then asked for a closed-door executive decision to discuss possible litigation, along with what the “next steps” would be for the county. It’s not known whether the commissioners might appeal the OOR’s decision to Washington County Court of Common Pleas or file some other sort of litigation against the tourism agency. If so, it’s unclear whether Sweat would handle the legal matters or if the county would contract with another attorney to serve as special counsel on the matter.
At stake is the millions in hotel tax revenue the tourism agency receives to promote activities, events and businesses in the county. The agency, which is managed by the county’s Chamber of Commerce, receives about $2.5 million in annual hotel tax revenue, which is more than 90% of its total income source.
In its decision, the office stated that “the County exercises some passive control” over tourism’s operation” and could even decertify it or withhold tax revenue until officials feel their requests have been satisfied. But the independent nature of the tourism agency and its board means it is not a government entity and does not fall under the state’s open record laws.
“The record demonstrates that the WCTPA is a nonprofit corporation governed by an independent board, its purpose of promoting economic development and tourism is not a governmental function, and there is no evidence that the County or any other government entity has significant control over the WCTPA and its operations,” the office stated in its ruling.
In September 2023, the county approved a 10-year management agreement with the Chamber of Commerce, paying it $1.6 million over that period to oversee the tourism agency. Commissioner Nick Sherman voted against the motion at the time and raised concerns earlier this year about the financial transparency with tourism.
Jeff Kotula, who is president of the chamber and also leads the tourism agency, said they have turned over to the commissioners the past 20 years of audits – including the review for 2024 – along with the articles of incorporation and the organization’s bylaws.
“We value our relationship with (the commissioners) and want to continue building on a foundation of partnership and communication moving forward,” Kotula said in a written statement. “And although it has been our constant position that we are an independent, nonprofit corporation operating independently of county control, and that stance has now been confirmed by the state, we have still made every effort to be open, honest, and transparent with the commissioners. The commissioners have met with our boards of directors personally to directly answer their questions and provided them with written follow-up responses.”
Kotula said he hoped with the matter now settled the tourism agency and county can work together collaboratively, as they have recently with the county fair, PONY League World Series and unveiling of the America 250 PA replica liberty bell with artwork showcasing Washington County’s history.
“With this decision from the state, we can now fully focus on working with the commissioners to continue promoting and encouraging economic development through tourism in Washington County,” he said.