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Middletown Borough Council, explain reasons for executive sessions: Editorial

Posted 1/23/19

Middletown Borough Council’s repeated use of executive session to speak behind closed doors about important issues — and the vague descriptions given for entering into the sessions …

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Middletown Borough Council, explain reasons for executive sessions: Editorial

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Middletown Borough Council’s repeated use of executive session to speak behind closed doors about important issues — and the vague descriptions given for entering into the sessions — concerns us, and it should concern you, too.

Meetings regularly end with council adjourning to executive session to discuss “personnel” or “pending litigation.”

Look at council meeting minutes on the borough’s website. There are 28 entries for 2018. For some reason, the Dec. 18 minutes have not yet been posted. Out of those 28, 24 executive sessions are listed in the minutes. Almost all state they were held to discuss litigation and personnel.

Pennsylvania law specifically says those vague reasons aren’t good enough. It has been that way for more than 25 years, since Reading Eagle Co. vs. Council of City of Reading in 1993 stated “[T]he reasons stated by the public agency must be specific, indicating a real, discrete matter.”

In other words, if council wants to talk about pending litigation, it must cite the case it is to discuss. They have to give specifics: party names, docket number and court in which the lawsuit is pending.

That very important Reading case cites a Supreme Court of Mississippi ruling which includes a statement that gets to the heart of the matter:

“The reason given, of course, must be meaningful. It must be more than some generalized term which in reality tells the public nothing. To simply say ‘personnel matters’ or ‘litigation’ tells nothing. The reason stated must be of sufficient specificity to inform those present that there is, in reality, a specific, discrete matter or area which the board had determined should be discussed in executive session. ... When a board chairman tells a citizen he may not hear the board discuss certain business, he is taking liberties with the rights of that citizen, and the reason given for this interference must be genuine and meaningful, and one the citizen can understand. To permit generalized fluff would frustrate the very purpose of the act.”

That is very well said, and we whole-heartedly agree.

As of late November, the borough was involved in 10 active lawsuits. Residents should at the very least know when council goes into executive session, which suits are being discussed.

There are times when executive sessions are warranted. But council should not go into executive session just because it makes discussions easier when they are held behind closed doors and the public is left in the dark.

Also remember that the Sunshine Act never requires an executive session. It allows agencies to exercise discretion. 

Take what happened Jan. 2. About 45 minutes into a 47-minute Middletown Borough Council meeting that evening, the body voted unanimously — and without comment — to send a letter signed by President Angela Lloyd to the attorney general’s office.

The letter requests an investigation into “the suspected improper use or misallocation of public funds” by the former borough council and/or the former Middletown Borough Authority.

It is in response to a forensic audit released last summer that found $1.1 million “missing” after approval of the 50-year lease of Middletown’s water and sewer systems in September 2014 to Middletown Water Joint Venture. The item was not on the agenda of the Jan. 2 meeting, but followed an executive session during which council discussed the matter behind closed doors.

This a big issue. It involves a lot of missing money. The current council is alleging that a previous council broke the law. And yet there has been no public discussion of this issue since June, or the reasoning behind why the current council would vote 7-0 to ask the attorney general to investigate. It does not involve any pending litigation.

It was not even a year ago that we raised concerns in an editorial because the council in executive session on March 13, 2017, voted to hire a law firm to provide “advice” on issues the council has with the 50-year lease of the borough’s water and sewer systems to Suez and Middletown Water Joint Venture LLC.

As we said in our May 23, 2018, editorial, voting in executive session runs afoul of Pennsylvania’s Sunshine Act. But we know that the vote happened because on April 17, 2018 — almost 13 months later — the borough decided to retroactively ratify hiring the law firm.

There is no doubt that Middletown Borough Council is not the only municipal body in Pennsylvania that skirts the rules of announcing why it is going into executive session. But it is easy enough to fix it.

Council has multiple new members since that March 2017 vote, including Lloyd and Vice President Mike Woodworth.

We urge them to adhere to the letter of the law and state precisely the reasons for going into executive session each time the council does so.

The citizens of Middletown have a right to know.