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Public safety director talks in private might have violated Pa. Sunshine Law

By Dan Miller

danmiller@pressandjournal.com

717-944-4628
Posted 6/24/20

Middletown Borough Council and the borough might have violated the Pennsylvania Open Meetings “Sunshine Law” regarding what elected officials and members of public bodies are allowed by …

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Public safety director talks in private might have violated Pa. Sunshine Law

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Middletown Borough Council and the borough might have violated the Pennsylvania Open Meetings “Sunshine Law” regarding what elected officials and members of public bodies are allowed by law to discuss behind closed doors in creating the public safety director position.

Council in November 2019 voted 5-0 to create the position, even though council did not have a job description because one did not exist.

Council over the next several months held several meetings in executive session behind closed doors to discuss the position, and to discuss changes to the job description that had been submitted by the solicitor.

The Press & Journal reached out to Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, for comment.

In an email to the Press & Journal, Melewsky said: “The borough’s reliance on the personnel executive session in this situation is misplaced and illustrates a misunderstanding of the law.”

“The Sunshine Act’s personnel executive session does not apply to discussions about creating a new job position and it does not apply to every discussion that involves personnel; it only applies to discussion about prospective, former and current employees and appointees,” according to Melewsky. “More simply put, the personnel executive session applies to discussion about people, not positions. Once a new position has been discussed and acted upon at a public meeting, the agency can then use a personnel executive session to discuss applicants (people) to fill the position. That doesn’t appear to be what happened in this situation, and that’s a Sunshine Act problem.”

Melewsky said the act is a citizen-enforced law, and anyone who believes a violation occurred can pursue a civil suit against the agency or criminal sanctions against the elected officials. Enforcement is difficult and punishment is rare, she said.

However, if a judge finds a violation in the civil context, injunctions could be put in place or votes invalidated. It’s a summary offense to intentionally violate the law, punishable by a fine of up to $1,000 plus court costs, Melewsky said.

Council President Angela Lloyd declined comment regarding Melewsky’s statement on council discussing the position and the job description in executive session as a potential violation of the Sunshine Law.

Borough Solicitor James Diamond also did not respond to a request for comment on the issue from the Press & Journal.

Diamond during council’s March 3 meeting had said the job description could be discussed behind closed doors as a “personnel” matter. Diamond made the comment in response to Mayor James H. Curry III questioning whether the job description is “an executive session topic.”

Lloyd told the Press & Journal shortly after the March 3 meeting that council had received the draft job description from the solicitor in mid-December, and that council had discussed the job description in executive session “a few times” since then.

“We could have discussed it in open session,” Lloyd told the Press & Journal in March. “There was no hidden agenda.”