November 3, 2014 at 3:30 pm #4270
What happens when a school district’s written policy and the Pennsylvania Public School Code and likely the Pennsylvania Election Code require that the school district create and maintain public records pertaining to the use of school facilities by outside groups and then fails to do so? The occasion involves election activity and a school referendum. When public records were requested in accordance with the Open Records Law, the SCASD reply was: there are no records; all record keeping was waived by the superintendent. A copy of the wavier was requested from the SCASD. The request was denied. The denied request was appealed to the Office of Open Records (OOR).
“OOR Final Determination: Requester seeks records regarding a breakfast held at a School District facility. School District submitted unsworn position statement that records do not exist – School District did not meet its burden of proof as unsworn statements may not be relied upon as competent evidence of the RTKL. Appeal Granted. For the foregoing reasons, Requester’s appeal is granted and the School District is required to provide all responsive records to the Requester within thirty days.” See OOR Docket: 2014-1319, October 21, 2014 for full report. Type in docket number at: http://dced.state.pa.us/open-records/final-determinations/
Details: SCASD Policy 707,Use of School Facilities, and the Pennsylvania School Code require record keeping in this regard: (1) a signed application to use a school facility, (2) a signed permit, (3) a voucher for payment of a user fee to compensate for district expenses, (4) a certificate of liability insurance, (5) a liability agreement, (6) confirmation of understanding no drugs, alcohol, tobacco, or weapons are allowed.
Had this been a simple oversight, the situation would be a tempest in a teapot, quickly ignored. Rather it involves, opined, an attempt to influence an election and referendum. The superintendent invited the Chamber of Business and Industry of Centre County (CBICC) and RE/MAX (realtors) to hold a breakfast meeting in the high school auditorium a month before the election. Two weeks later, the local newspaper announced, “CBICC urges approval of State College referendum.” About $1,350 was collected for the breakfast and not reported. The Election Code allows an unreportable limit of $250. All required permits, liability insurance, fees, and similar requirements and reports were waived by the superintendent because, he explained, he was a member of the CBICC. The school policy does not afford the school board or any district administrator that authority.
Act 1 (2006)( 53 P.S. § 6926.333(m) requires that school board members NOT urge voters to vote yes or no on a referendum question. Act 1 also prevents a school district from using public funds to urge voters to vote yes or no.
Section 333 (m)(1) “Election interference prohibited. No public funds may be used to
urge an elector to vote for or against a referendum or be appropriated for political or campaign purposes.” It is estimated that $68,000 of public funds were used. As one school brochure explained: “On May 20th we are asking voters to approve a referendum question that will allow the district to borrow up to $85 million specifically to fund renovations and additions to the State College High School.”
What is the penalty when a school district or municipality fails to keep public records specified by law or the entities’ own policies and regulations? The Open Records Law requires only that public records be made available not that public officials comply with local records policies approved by elected officials in open meetings.
See the complete complaint at http://www.statecollegewatchdog.com/scasd-must-comply-or-lawNovember 3, 2014 at 4:37 pm #4348
Kim de BourbonMember
Sorry, but I don’t have an answer for you on this one — it’s outside the purview of the Right to Know Law, as you note. (The state’s open records law exists only to provide public access to records that exist … it has nothing to do with what records an agency keeps, how long it keeps them, or whether or not it SHOULD have a record.)
Likewise, although the Office of Open Records ruled in your favor on your appeal, it’s really only a technicality. (The OOR requires an agency to sign a sworn affidavit attesting to the non-existence of a record. And in this case, the school district did not provide that.)
But if the record doesn’t exist, the OOR’s determination that the district turn it over isn’t going to make it materialize, of course. So the point is moot — although good for you for pursuing, as it puts the district on notice.
As far as penalties go, or what action can be taken to complain about the district’s failure to follow its own policy and the public school code, I simply don’t know. You might try a complaint with the state Ethics Commission, although that would be applicable only to an individual’s ethical violations. You might try asking the state Board of Education, and see if they can shed some light.
Sorry not to be more helpful on this — but I’m not a lawyer and simply don’t know the answer.November 4, 2014 at 3:00 pm #4391
Thank you for your discussion. You are correct this is a very complex issue beyond the open records law; it is explained in more detail on the Watchdog website. The school district invested considerable public funds to pass a referendum. They used the project architect to hire an off-the-books "referendum consultant" to, I opine, skirt the process through all the loopholes involving records, the Pennsylvania Election Code, the Pennsylvania Unit Debt Act, and Act 1 — Taxpayer Relief.
My understanding of the OOR Final determination is that the school district is required to provide an affidavit confirming that no records were maintained as required by Policy 707 and the Pennsylvania School Code. I wrote to the superintendent suggesting that the required affidavit include an assurance that action would be taken to preclude this error in the future.December 8, 2014 at 3:23 pm #4415
The 30-day "deadline to comply" imposed by the Office of Open Records Appeals Officer on the SCASD in her Final Determination ruling expired. The school district provided a sworn statement that all records were searched and none found pertaining to violation of Policy 707. That is obvious since the school superintendent Robert O’Donnell was reported to have orally told the director of the office of physical plant and the business administrator (who is also the open records officer) to waive all district requirements for records keeping in this instance. Since that direction was oral there is no record except for the attestation by the business administrator of what he was told and by whom in his reply to the appeal. The superintendent refused to confirm his proprietorial waiver in writing. The school board saw nothing, heard nothing, knows nothing. A reasonable person would expect a school superintendent to abide by the state-required policy and the intent of the state open records law. Pennsylvania should not need yet another law that requires public entities to create and maintain records required by their own policies and directives. Unfortunately and apparently a law is needed to regulate those searching for loop holes to common sense.March 10, 2015 at 2:40 pm #7199
Hi Kim, I know you are still working the kinks out of the new website. Can I do anything to repost my old comments some. not all, that are in hypertext, I tried to copy to MSWord and change font size. That doesn’t work. Will the Web administrator fix that? Thank you. webmaster@StateCollegeWatchdog.com
April 6, 2015 at 12:05 pm #7316
- This reply was modified 3 years, 6 months ago by Watchdog7.
Kim de BourbonKeymaster
Sorry, I missed this when you posted it last month. Not sure what you are asking about. What old comments are you asking about? Posts to the previous system?
(BTW, just saw — and fixed — the coding on a post here that was showing up in 112 pt type!)April 8, 2015 at 7:57 am #7320
When non-compliance of written law and policy creates the “No Record” response from an agency, it may be helpful to create that paper trail of documenting their non-compliance. You have the right to request an appeal with the OOR, if you feel the record should be available to the public, specifically when you can provide Pennsylvania Law and local policy (if it exists). The OOR would then require them to provide the information if the agency was unable or unwilling to properly respond why the material was unavailable. The only allowable response for denial of an allowed request would then be “No Record” followed ironically by “Creation of Record” which would attest (via affidavit) that the “required” records were not created.
In a recent Commonwealths Court ruling (Department of Environmental Protection v. Legere, 50 A.3d 260 (Pa. Cmwlth. 2012) that might help (your actual mileage may vary):
In affirming the OOR’s order to produce the records, this Court held
that “an agency’s failure to maintain [its] files in a way necessary to meet its
obligations under the [Right-to-Know Law] should not be held against the
requestor. To so hold would permit an agency to avoid its obligations under the
[Right-to-Know Law] simply by failing to orderly maintain its records.” Id. at
265. We further held that DEP could not avail itself of Section 705 of the Rightto-Know
Law, 65 P.S. §67.705, because the requester was neither seeking records
that did not exist, nor was she attempting to cause DEP to compile, maintain,
format or organize the documents other than the manner in which they were then
maintainedAugust 22, 2015 at 7:54 am #7563
Thank you Rhjannini, I read your suggestion shortly after posted and by oversight forgot to thank you. The SCASD Superintendent believes the district’s rules pertain only to others. The Pennsylvania Auditor General Office was requested to investigate the State College Area School District violation of school board approved policies during the next audit.October 23, 2015 at 7:30 am #7586
The State College Watchdog Website — http://www.statecollegewatchdog.com/scasd-must-comply-or-law — cited in this article was closed by Watchdog and all documents transferred to and available at https://www.scribd.com/StateCollegeWatchdog. The particular articles pertaining to the deception by the State College Area School District (SCASD) is available at: https://www.scribd.com/doc/238110851/Public-Funds-Spent-by-SCASD-Influence-Referendum
The Pennsylvania Auditor General will investigate the allegations pertaining to violation of school policies presented in this controversy.
- This reply was modified 2 years, 11 months ago by Watchdog7.
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