VOLANT – Members of the Volant borough council appeared to violate the state open meetings law when they returned from an executive session and didn’t provide enough information to the public about what they had discussed.
In announcing the executive session during an April 22 meeting, council President Bob McGary cited only “litigation” and “personnel.” Under state open meetings law, that’s not sufficient for the public to understand why it had been excluded from discussions, Melissa Melewsky, media law counsel for the Pennsylvania Newsmedia Association, said Monday.
“The public announcement is the only chance the public has to understand why they’ve been excluded,” Melewsky said. “If all they’re getting is a generic justification, that really doesn’t comply with the law.”
Litigation and personnel are generic justifications, she said.
“Neither one of those really tells me what they were discussing,” Melewsky said. “It’s not enough.”
If council members were discussing a pending lawsuit, she said, they have to cite party names, the docket number, and the court in which the case is pending. If they are discussing potential, or intended, litigation, they have to describe the nature of the potential suit, such as a contract breach, personal injury, or tort action to fulfill the legal requirements of the state’s open meetings law.
“At minimum, they have to give the nature of the litigation,” Melewsky said.
Last month, Volant merchants filed a lawsuit against the borough for collecting license fees without sufficiently maintaining the public restroom the fees were supposed to support. Later in April, the Lawrence County District Attorney’s office raided the borough building.
The legal requirements for specificity in announcing executive sessions are spelled out in 1993 case law, “Reading Eagle Co. v. Council,” which sets a binding precedent on all local and state agencies in Pennsylvania.
The decisions reads in part:
• When a board chairman tells a citizen he may not hear the board discuss certain business, he is taking liberties with the rights of that citizen, and the reason given for this interference must be genuine and meaningful, and one the citizen can understand.
• “To permit generalized fluff would frustrate the very purpose of the Act.
• “…By requiring that the executive session can only be held when reasons are given, the General Assembly intended that the public be able to determine from the reason given whether they are being properly excluded.”
Furthermore, McGary’s announcement of the executive session was practically inaudible to people in the room. A New Castle News editor, sitting in the front row, couldn’t hear it, until he replayed video of the meeting on Facebook.
McGary, wearing a mask due to COVID-19 protocols, was shouted over by merchants in the audience, who were upset over the late notice for the executive session. “That’s not legal,” one yelled.
“If you can’t hear what’s being said, it’s not effectively a public meeting,” Melewsky said. “You shouldn’t have to listen to a recording to understand what was said at a public meeting.”
The New Castle News looked into the matter, after a front-page story April 27 stated no reason was given for the executive session.
In response, borough solicitor John J. DeCaro Jr., in a email to the New Castle News, noted McGary had made the one-word announcements, as evidenced in a Facebook Live video of the meeting.