Is There A Sunshine Violation Here?


HomePennsylvania Open Government ForumTales and TipsIs There A Sunshine Violation Here?

This topic contains 2 replies, has 3 voices, and was last updated by  johnsmith1234567 1 week, 6 days ago. This post has been viewed 728 times

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  • #7477

    rjuderome
    Participant

    BACKGROUND: Exeter Borough (Luzerne County) is in the midst of a $300,000 (and growing) arbitration case involving a borough police officer who was fired by the majority members of Council last year. Council has engaged the services of an affluent and pricey Philadelphia lawyer and law firm to ensure the officer isn’t reinstated. Suddenly, without warning, the attorney leaves one firm and joins another and talks the borough to following him, so he can continue handling their case.

    ISSUE: Sometime between May 13 and June 2, Exeter’s Council president sends a letter to the CEO of the first law firm and tells him, Council has decided to follow the original attorney to his new firm. Council doesn’t actually vote on the legal transfer until June 2. The letter – for some unknown reason – doesn’t have a date on it.

    QUESTION: Is it a violation of the Sunshine Law that the Council President authored the letter advising Council made a decision in the transition of law offices BEFORE a vote was taken on the matter?

    #7480
    Kim de Bourbon
    Kim de Bourbon
    Keymaster

    Well, it doesn’t seem like this (on the face of things) would be an open-and-shut violation of the open meetings law, because it is a case of the council president taking action (writing the letter) before an official vote on the matter had been taken — which in and of itself would not be a violation.

    Of course, if you took a complaint on this to court, you would argue that the letter indicates a decision HAD already been made outside the public eye.

    There’s no guessing how a judge would rule in such a case … but in my opinion, a judge would simply see this as the council president “jumping the gun” in writing the letter… and that since the council did, in fact (eventually and officially) make the decision cited in the letter, that there would be “no harm, no foul,” and no action needed to “cure” the matter.

    Unfortunately, the burden would be on the complainant to prove that the council did meet in executive session and illegally make a decision on this matter there, ahead of the public vote.

    Which may be what happened … but almost impossible to prove, especially as the letter is not dated.

    No doubt the council would claim that they were entitled to meet behind closed doors to discuss litigation and/or a “personnel matter,” although an outside attorney would not be considered an employee or public official. And the council president might tell the court he simply goofed by writing the letter ahead of the decision being officially made.

    In any case, it’s unlikely that the court would fine the council or council president for this, I’m afraid.

    #7687

    johnsmith1234567
    Participant

    Unfortunately, the burden would be on the complainant to prove that the council did meet in executive session and illegally make a decision on this matter there, ahead of the public vote.

    Which may be what happened … but almost impossible to prove, especially as the letter is not dated.

    No doubt the council would claim that they were entitled to meet behind closed doors to discuss litigation and/or a “personnel matter,” although an outside attorney would not be considered an employee or public official. And the council president might tell the court he simply goofed by writing the letter ahead of the decision being officially made.

    In any case, it’s unlikely that the court would fine the council or council president for this, I’m afraid.

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