Details of a meeting on reopening Centre County will not be released, raising Sunshine Act concerns
The commissioners did not hear public comment before requesting to delay Centre County’s reopening, and residents will not be able to read how the board reached that decision.
After debating how to classify the last-minute meeting, the board of commissioners decided Thursday not to release the minutes from their Friday phone call with Gov. Tom Wolf’s office. The decision followed guidance from county solicitor Elizabeth Dupuis to classify the meeting as an executive session.
But open records experts aren’t sure that move is in compliance with the Pennsylvania Sunshine Act.
Centre County was initially on the list to move into the green phase, which eases most restrictions of the stay-at-home order, but the commissioners asked to remain in yellow, citing concerns for residents’ safety at the June 2 primary election.
Dupuis recommended that Friday’s meeting be classified as an executive session due to its short notice and conversations about personnel matters, specifically poll workers.
Commissioner Michael Pipe wanted to make an exception by releasing the minutes due to “misperceptions” about what was discussed. But, Commissioner Steve Dershem thought keeping them confidential was the best way to avoid a “chilling effect” on future executive session material, with Commissioner Mark Higgins in agreement.
Pennsylvania Office of Open Records Executive Director Erik Arneson said Tuesday that the meeting might not qualify as an executive session — a private meeting often pertaining to personnel issues, public safety or legal matters. If an agency meets in executive session, a specific reason must be publicly announced before or directly after the session is held.
“Just because you’re in executive session for one reason, let’s say it’s a legitimate reason, does not mean that you can then discuss other issues,” Arneson said.
While Centre County does pay poll workers for their time, Arneson said they aren’t employees in the traditional sense. County government compensates workers on election day and pays for their training, but they receive no health care benefits.
Melissa Melewsky, in-house counsel for the Pennsylvania NewsMedia Association, said poll workers should not fall into the personnel category as they are primarily “volunteers” and not “employees” or “appointees.”
“I think there’s a lot of problems going on here from a Sunshine Act perspective,” she said. “Even if they had a legitimate basis for an executive session, they’re not allowed to make decisions during an executive session. The only place a decision can be made is during a public meeting.”
While the overall decision to reopen a county is made by the governor, that decision includes input from state and local officials, a state spokeswoman said. The commissioners came out of the meeting unanimous in requesting that Centre County remain in the yellow phase of reopening, Pipe wrote in a statement Friday.
Last month, Wolf signed Act 15 of 2020 into law. This legislation gave governing bodies the flexibility to meet remotely by telecommunication during the COVID-19 pandemic. While the declaration creates leeway for emergency circumstances, Dupuis said it does not account for strict deadlines.
Although the 90-minute deadline created challenges for the commissioners to notify the public of a meeting, Melewsky said neither the Sunshine Act or Act 15 make exceptions for a “tight time crunch.” She added that the county could have notified the public of a meeting within 90 minutes and potentially created a public teleconference in that time frame.
“I think the second issue here is the executive session itself,” Melewsky said. “It sounds like there may have been parts of a discussion that could have been part of an executive session, but executive session exceptions have to be narrowly focused and narrowly applied.”
With a blended discussion about poll workers and reopening, she said parts of the conversation should not have taken place “behind closed doors.”
Minutes that meet executive session guidelines should remain confidential, but Melewsky said notes outside of that realm should be made publicly available. She added that while transparency is always important for government, it is “especially” important during times of crisis.
“I’m not trying to suggest that Centre County did anything intentionally wrong to violate the law, but it sounds to me that they were trying to operate under a very tight deadline and under very unique circumstances, but there’s definitely an issue with transparency,” she said.
