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Solicitor Says 'Secret' Meeting was Legal, Mercury 3-6-10
By Evan Brandt
ebrandt@pottsmerc.com
POTTSTOWN — Now it seems that the "secret meeting" may not have been illegal after all.
In a development sure to surprise readers, two lawyers disagree over the interpretation of the law — in this case Pennsylvania's Open Meetings Law, also called the Sunshine Law.
On Tuesday, Pottstown School Board member Thomas Hylton confirmed that he had discussed his extensive proposal for reorganizing the schools — which includes moving all fifth graders to Pottstown Middle School — with the other two members of the Neighborhood Schools Committee prior to presenting it publicly.
Three other board members, Michele Pargeon, Polly Weand and Robert Hartman Jr., told Hylton that because three members constitutes a quorum of the committee, he had violated the Sunshine Act — an opinion seconded Wednesday by Melissa Melewsky, an attorney with the Pennsylvania Newspaper Association and an expert on that law.
But Thursday night, school district Solicitor Stephen Kalis opined otherwise.
"I don't think it falls under the Sunshine Act," Kalis told the board when pressed by Pargeon, who called Hylton's discussions "a clear violation of the Sunshine Act as it relates to committees."
However, Kalis replied "a committee is not an agency," a term of great importance when dealing with the Open Meetings Law. "It has no right to take any actions, at most it can recommend."
By contrast, Melewsky said the fact that the committee can make recommendations is exactly what makes it an agency in its own right.
The matter would seem to center on two questions: Is a committee an agency? Were the conversations Hylton had with committee members Nat White and Valerie Harris constitute "deliberations" on "agency business" which is what the Open Meetings Law regulates.
(For example, should those three get together for beers and talk about the Eagles' slim chances to win the Super Bowl, it would not violate the Open Meetings Law.)
The law's text is posted online at the Pennsylvania Freedom of Information Coalition — www.openrecordspa.org/sunshine.html#definitions
According to that site an "agency" is: "The body, and all committees thereof, authorized by the body to take official action or render advice on matters of agency business of all the following" and then goes on to list those public bodies affected, a list which includes school boards.
Further, according to the Citizen Media Law Project, when using Pennsylvania's Open Meetings Law, "the term 'agency' includes school boards."
www.citmedialaw.org/legal-guide/pennsylvania/open-meetings-laws-pennsylvania)
The site notes "the term also applies to committees created by the above-described agencies that are authorized to take official action or render advice on matters of agency business."
The law's language defines "deliberation" as: "the discussion of agency business held for the purpose of making a decision."
It defines "agency business" as: "The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action."
The law also defines "official action" as including "recommendations made by an agency pursuant to statute, ordinance or executive order" as well as "the vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order."
At the board's request, Kalis said he would prepare a written "formal legal opinion" on the matter.
In offering his initial reaction, Kalis said "it does not occur to me that there is a violation. A few board members who are undeniably not a quorum of the full board, can get together to discuss things."
Pargeon, who seemed unconvinced, also asked about the procedure for filing a formal complaint.
In Pennsylvania, there is no police or law enforcement agency charged with enforcing the Sunshine Law and a citizen's only recourse is to bring the complaint to court.
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