The (Pottstown) Mercury, Jan. 14

Newly seated boards may want to learn open-meetings law

With the start of the year, new school directors, council members and township commissioners have taken their seats on boards, and thus it seems a good time for a reminder about open meetings.

Even though Pennsylvania has some of the weakest laws in the country pertaining to open records and open meetings, local boards still sometimes find it difficult to comply.

The law requires that public business be conducted in public view, meaning that decisions can not legally be made through email, phone calls, or behind closed doors.

The exceptions are executive sessions, which are meetings called in which officials can go outside the public view for a discussion. Votes that result from an executive session discussion, however, must be in public.

Executive sessions are so-called because at times boards need to go behind closed doors to discuss an executive matter that could hinder their effectiveness if done in public.

These matters are limited to discussions of personnel, litigation or real estate transactions, all of which could hinder a board’s ability to negotiate if discussed publicly.

Executive sessions are not meant to be an excuse for a group to go behind closed doors to be more frank with each other or to avoid embarrassment.

Even some of the most experienced local officials lack an understanding of open-meetings laws. Newly elected officials may have an steeper learning curve.

A case in point was the discussion at a recent Pottstown School Board meeting about having an executive session to discuss with Superintendent David Krem the request to hire a new director of special education in the district.

While it is easy to couch that request as being justified by a discussion of personnel, in fact, it does not fit the personnel test. A discussion over an individual employee’s job performance or salary is considered to be “personnel” and legal for a closed-door session. A discussion of the possibility of adding a new position; a job description; and the need for the post does not pass the privilege test.

When discussing job descriptions or duties, the public may not be excluded, said Terri Henning, general counsel with the Pennsylvania Newspaper Association.

“To the extent that they would be talking about the superintendent’s job performance, that may be appropriate for an executive session,” Henning said after being contacted by The Mercury.

“But to the extent the discussions is unrelated to the superintendent’s performance and more to do with what has changed, whether it requires a new person to fill the post and is less about the employee, that is absolutely not appropriate for executive session,” Henning said.

Local boards can not rely on their solicitors for advice on open meetings either. When asked for his opinion on the meeting possibility, school board solicitor Stephen Kalis said he would have to look into it.

Open meetings reform is associated closely with open records reform, which is being pursued in Harrisburg on the legislative level. In the meantime, it is incumbent on all public entities to strive to understand the laws and abide by them.

Look to us to be watching.

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