Columbia Borough Council Violating the State Sunshine Act?
Columbia borough’s ongoing struggle with residents who want change is a dramatic example of how different readings of Pennsylvania open meetings laws often cause problems in real life.
An LNP story June 13 shows another Columbia Borough vote is at issue – reporter Chris Courogen characterizes the move as “(a vote to) award a contract for human resources consulting to a Mifflin County firm.”
The Columbia board has already been under fire for taking actions without deliberating on them in a public meeting – residents say the borough has not been in compliance with Pennsylvania’s Sunshine Act which governs municipal privacy law.
The LNP coverage provides a sort of blow-by-blow of how this new Sunshine Act concern came to light.
After a resident in attendance asked how the Council was preparing to award a contract that was not discussed in public, Council President Kelly Murphy replied that “we’ve been discussing this for about six months.”
Now, if the question hadn’t been asked, or if the Council President in question knew enough to keep silent, the issue never would have come to a head like this. That’s because there would be no practical way for residents to contend that officials had talked about the issue privately. But when you have an open admission that’s documented, things get a little bit … different.
Additional reporting on this shows that the Columbia Borough Council is using the idea of private executive sessions to argue that they didn’t need to discuss that particular contract award in public meetings.
Often cited is a “personnel exception” that boards sometimes feel allows them to skirt the intent of the state law.
Talk to public records experts within the state, and you’ll hear that the personnel exception allows boards to talk about in-house personnel issues in private.
However, there are some important limitations.
First of all, it’s seen as the proper and necessary way to deal with the public and the press to at least say that executive session is being held to discuss a particular issue, and give some context, rather than just citing “personnel.”
More importantly, though, a contract award is not “personnel” because it doesn’t have to do with an employee. It has to do with a contract with an independent third party.
Here’s how Melissa Melewsky, LNP’s go-to on the Sunshine Act, puts it: “The Sunshine Act’s personnel executive session allows private deliberation regarding employment matters of specific employees or appointees …it does not permit private discussions about generally applicable policies or independent contractors.”
Here’s a precise definition of the personnel exemption from Widener University’s Guide to the PA Sunshine Act:
“1) to discuss matters of employment (such as prospective employment, appointment, terms and conditions of employment, promotions, and discipline of public officers and employees).”
So with that in mind, the idea that the board was discussing “personnel” is pretty disingenuous.
However, borough council president Murphy also provided the following less-than-stellar argument to assembled residents.
“We didn’t deliberate,” he said. “We just discussed it among ourselves.”
Leaving aside this bone-headed response to wordplay, it’s also pretty poor business to confuse an employee with an outside firm contracted to provide a service.
Practically speaking, the difference between an employee and an independent contractor is not a small detail.
Anyone in public office, or even anyone who’s familiar with white collar work like tax filing would know that the IRS has spent enormous amounts of resources distinguishing between an employee and a contractor.
So, in some ways, there’s not even a gray area here – the Columbia Borough Council President directly admitted to discussing a municipal contract in private, apparently over a period of six months!
This is exactly the sort of breach of transparency that has residents attending public meetings looking for misbehavior on the part of local elected officials.
At GTKYF, we’ve been sounding the alarm bells for quite a while on Columbia Borough, since citizens started a group last year to oppose some of the board’s decisions that were also referred to oversight boards in Harrisburg.
There is the concern that the Columbia Borough Council may be enriching third parties through decisions that were not made with transparency. That has some residents running to replace the existing board, and it also has journalists and others looking closely into exactly how the Borough Council is working.
The explosive scoop from earlier this month shows that there is not a very savvy understanding of Pennsylvania open records and public meetings laws on the part of the board – but ignorance is no excuse when you’re dealing with this kind of violation.
For many years, we’ve been told that the reason the Sunshine Act doesn’t work is that the levied fines are too small – several hundred dollars apiece.
Now, though, in the age of the Internet, it’s getting trickier and more difficult for public officials to openly flout open records laws. Keep an eye on what Columbia Borough is doing as an excellent textbook example – and get involved. We don’t want this sort of commercial malfeasance to become the norm.