Legality of closed Pottstown School Board meeting questioned

POTTSTOWN >> If the Pottstown School Board wants to encourage more interest and involvement from the community, excluding the public from meetings so new programs can be presented is probably not the best way to do it, according to a legal expert.

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association fields questions about potential open records and open meetings law violations all week long.

And she said the Pottstown School Board “retreat” meeting held Thursday, from which the public was ejected, raises some serious concerns about potential violations of the Sunshine Act.

“There is no ‘retreat’ exemption in the Sunshine Law,” Melewsky said Friday.

The state law exempts the school board from holding all meetings and deliberations in public for several specific reasons, most commonly – to discuss personnel, the sale or lease of real estate, labor contract negotiations or pending legal matters.

Those exemptions can be cited to hold a closed door “executive session” of the board. Thursday’s meeting was not described as an executive session.

The law does allow a board to attend conferences which are not public, but “deliberation of agency business must not occur at the conference.”

The law defines “deliberation” as “the discussion of agency business held for the purpose of making a decision.”

Further, the law defines a conference as: “Any training program or seminar, or any session arranged by state or federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities.”

Thursday’s “retreat” meeting does not meet any of these definitions and so the legality of excluding the public is open to being questioned by the public, said Melewsky.

She is not the only person to question the appropriateness of excluding the public Thursday.

Board member Ron Williams questioned School Board Solicitor Stephen Kalis about why the meeting needed to be private.

Stephen Kalis said the “retreat” would not violate Pennsylvania’s Sunshine Law because the school board would not be ‘deliberating.’

Kalis also told Williams that the board has done this before, that some new district programs were to be presented, and that the non-public forum allows board members “to ask questions they might not be comfortable asking in public.”

Melewsky said a board member who has a difficult question to ask can simply ask it on an individual basis, making private board meetings unnecessary.

“Is it not the job of a school board director to ask difficult questions? I understand it can be uncomfortable, but isn’t that the job they signed up for?” Melewsky asked.

“This is not a reason to keep the public out,” she said.

Further, if the purpose of excluding the public is to ask those difficult questions so the entire board can hear them, as well as the answer, “that comes very close to crossing the line into deliberation,” Melewsky said.

“And even if you’re complying strictly with the letter of law and not ‘deliberating’ – just sitting there stone faced receiving information – it certainly gives the appearance of not wanting the public to be involved,” Melewsky said. “If you’re trying to build public participation, this is certainly sending the wrong message.”

Listening to the things Kalis said would be presented at the “retreat,” and given his statement that there would be a summary of the things presented Thursday at the next public board meeting on Monday, Melewsky exclaimed “then why on earth wouldn’t you just do all that at a public meeting?”

“I don’t understand the need for secrecy if that’s all they’re doing, and certainly the public is unlikely to understand it. It’s just going to raise questions in the public’s mind,” she said.

This is not the first time the appropriateness of a closed-door school board meeting has been questioned.

Last December, the school board met in executive session with John George, the executive director of the Montgomery County Intermediate Unit about the assignment to find the district a new superintendent.

Paula Knudsen, director of government affairs/legislative counsel for the Pennsylvania NewsMedia Association and a legal expert on Pennsylvania’s Right to Know and Open Meetings laws, said at the time that <URL destination=”http://www.pottsmerc.com/article/MP/20151220/NEWS/151229989″>using the personnel exemption to meet with a firm to hire “an employee who hasn’t even been identified yet” was questionable.

</URL>Williams also objected and said he would no longer participate in inappropriate executive sessions.

Subsequently, the board met with George again publicly.

However Williams did participate in Thursday’s meeting after getting his question answered.

He not return an email Friday seeking comment.

Even if Thursday’s meeting was illegal, there isn’t much that can be done about it.

“The Pennsylvania Office of Open Records fields questions about this all the time, but they have no enforcement power,” Melewsky said.