PaFOIC

Council straddles law with e-mails

By Diane Petryk | The [Sunbury] Daily Item

SUNBURY — E-mails are the cyberspace version of “behind closed doors,” and Sunbury city councilmen meet there often.

Mayor Dave Persing sends about one e-mail a week to the council as a whole, City Clerk Terry Specht said.

Often Persing jots memos the old-fashioned way and has Specht transmit them to all of the council at once via e-mail, Specht said Friday.

Sometimes, council members reply.

In an e-mail sent Wednesday, Persing suggested the city’s two code enforcement officers walk the entire city noting “extreme cases of outside maintenance neglect.”

“… two guys could walk every street in the City and list every property in a week’s time,” the mayor wrote.

Then he asked: “Is this something the office could do in the month of September?”

If asking for a reply constitutes a discussion, this may be forbidden by the Pennsylvania Open Meetings Law.

Under the Pennsylvania Sunshine Act, a public agency must meet in public, at a previously announced time, to discuss or deliberate on agency business or take official action.

Joint e-mailing amongst a quorum of a public body — a simple majority — is a violation of the law because the public isn’t invited, according to the state’s top Sunshine Law official, Terry Mutchler, director of the Pennsylvania Office of Open Records.

“Is everyone doing it? Yes,” Mutchler said.

But, she warned, e-mails are as much open government documents as any other and are subject to Freedom of Information requests.

At the Lewisburg school board meeting Thursday, administrator Ron Kabonick asked board members to e-mail him if they had any questions about what he just discussed, said school board President Kathy Swope.

“I quickly reminded everyone to be very careful to direct their e-mails only to Ron, not to everybody,” Swope said.

Swope, who is also Region 6 director of the Pennsylvania School Boards Association, said there may be gray areas, but the intent of the law is clear.

That is, she said, “for all government to discuss matters in public, so the people of the community — their constituents — have the opportunity to hear the discussion.”

You can send a one way communication out with an announcement or reminder, she said, but you can’t deliberate or discuss.

“My belief is that the intent, the spirit of the law, is that people have a right to hear the deliberation towards whatever decision the public body is about to make,” Swope said.

Persing said he’s never met behind closed doors and his e-mails are not an attempt to do so.

On Aug. 11, Specht, the city clerk, sent an e-mail to all council members and the city solicitor, asking councilmen to send their approval or disapproval of the Elks’ plan to serve alcohol at the Sunbury River Festival.

This “vote by e-mail” may not even have been necessary, Persing said in defense of the e-mail Friday.

“That was no issue,” he said.

Clearly an issue earlier was the position of city administrator. Council SPLIT on eliminating the position, 3-2, on Aug. 9.

While personnel matters may be addressed in executive session, even executive sessions must be publicly announced, with the general topic given in advance.

Persing repeatedly said his objection was to the position, not to the work of recently hired administrator Stewart Graybill. Discussion of the position, rather than the person, would be a public matter.

Just before the August council meeting, Persing sent this e-mail:

“Memo From Mayor To Council, Solicitor, & Stu

“My interpretation of Stu’s contract is that if council wants to remove the position without just cause, he would need to be paid four months of severance salary. That means that if he is working past August we must plan on budgeting part or an entire salary in the 2011 budget. I personally have not supported this position and at this time I do not believe this position has benefited the citizens of Sunbury in any way since he was hired. I am asking for Councils vote to continue or eliminate the position by year’s end so we know what direction we are going as we start the 2011 budget in the upcoming months. A vote at this time will save us future monies.

“I do believe we need to talk about a position in the future when the comprehensive plan if finalized so that the plan moves forward. We do not need an administrator to run our form of government. I do believe we will need a Planner or someone to move the comprehensive plan forward within the next two years. This position can be clearly defined before hiring and involved with our Redevelopment Authority.

“I have nothing negative to say about Stu. It is all about the lack of development of this position based on his hiring from the previous administration and the actual impact on our community throughout the 9 months he has been employed. I am notifying Stu at the same time so this situation does not come as a surprise next Monday and he will have his choice to attend the meeting or not.

“I am only asking for a vote for direction at this time of the position of City Administrator.

Mayor”

While public discussion of the matter was held in the public meeting before the vote, Councilman Jim Eister’s short plea for the position did not amount to as many words as the above e-mail.

Eister, who worked closely with Graybill daily since January, merely said the former Red Lion borough manager accomplished a lot for the city.

Graybill handled the top-to-bottom remodeling of City Hall, Eister said, got the Redevelopment Authority reorganized, aided the code office in demolition efforts and helped work with the Riverfront Project contractors.

A prior executive session was held. Persing, Councilmen Joe Bartello III and Todd Snyder voted to rescind Graybill’s contract. Eister and Kevin Troup voted to keep it.

Eister said Friday he doesn’t really e-mail. He reads them, but never responds. All the same, he said, he knows all levels of government do it every day. He’s said he’s not sure if they violate open meetings law.

“I was always under the impression we were dealing publicly,” he said.

Bartello said he was against the council communicating this way. Troup and Snyder did not return multiple phone calls Thursday and Friday seeking their comment on this subject.

Persing insisted Friday his e-mails are just “memos,” not deliberations.

Asked if the Persing e-mails she transmits are typically more like announcements or more like the city administrator e-mail, Specht said: “More like the one about the city administrator.”


Private addresses

In addition to the city clerk’s e-mail address, sunbury1@ptd.net, the e-mails between Sunbury council members go to private or noncity e-mail addresses: Persing at asapahof@verizon.net, Eister at eisterd@yahoo.com, Bartello at joebartello@yahoo.com, Troup at troupie@msn.com, Snyder at todd@tsnyderconsulting.com, and sometimes to City Solicitor Michael Apfelbaum at michael@apfelbaumlaw.com

These e-mails fly in the face of the transparency required of government, according to Diana Lopez, senior editor with the nonprofit watchdog group Sunshine Review, based in Arlington, Va. The Review works in tandem with the Pennsylvania Commonwealth Foundation.

They’re “heinous” for being on private e-mail addresses, she said. That makes them difficult to request under the Freedom of Information Act, although some courts have ruled in favor of public access, even of private e-mails. Lopez said, if the council wants to communicate this way it should post the e-mails on the city’s website.

On Jan. 5, Specht transmitted to all council members the mayor’s message stating that he would like to shift money to hire a full-time police officer in May.

“I agree to open the budget to consider this Dave,” replied Snyder, who supervises the city’s finance operations.

On Jan. 8, Persing responded:

“Please forget my request to open the budget at the January 11th meeting since the funds I was interested in have been spent on other projects.

“Hopefully in the near future we can meet with SEDA-COG to review the Cameron Park project and the over-costs of this project that must be more than I was lead to believe. The free water fountain that I was not particularly in favor of has taken over $14,000 of city hall dollars that was not part of the grant. I need to see the financial status of this project.

“I have not tracked down exactly where the $15,000 went for the Neighborhood Group/Crime Watch.

“I will proceed with my undertaking as I become more familiar with all of the financial issues and address the needs of a new officer at a future time.”

Sunbury attorney Richard Shoch, who is solicitor for six public boards, including Point and Mahoning townships, said he tells his boards “reply to all” e-mails are a violation of the Sunshine Act.

He said he advises them that anything sent by e-mail is potentially subject to the Freedom of Information law.

There are gray areas, he said.

“Sometimes it gets very close to the line,” Shoch said. “It’s probably best to avoid it.”

Apfelbaum, the city solicitor, may not have told Sunbury anything on the topic.

“I’ll have to research the matter,” he said Friday.