Did Conshy’s Borough Council Violate the Sunshine Act?

Over the past few days we investigated whether Conshohocken’s Borough Council violated that act by discussing the sale of Borough-owned property, such as the Verizon Building/old fire house/grass area at West Elm and Fayette, during an Executive Session.  Executive Sessions are meetings held that offer no access to the public and minutes are not kept.

In a July 27th article in the Times Herald it reported that President Paul McConnell stated that the Borough Council would discuss the sale of Borough properties in an Executive Session:

Borough Council President Paul McConnell said he expected council to discuss the two proposals at its next workshop meeting on Aug. 7. That portion of the workshop meeting is expected to be held in executive session to discuss real estate.

The Sunshine Act does provide an avenue to discuss in Executive Session, “the purchase or lease of real property.”  The two proposals submitted in response to the RFP for the Verizon Building, old fire house and the grass area next to the Washington Fire Company do include details on the lease-back of office and meeting space for the Borough and the police station within the Verizon Building.  So there is a portion that is clearly appropriate for an Executive Session and it is permissible to have an Executive Session before, during or after a public meeting.  So Borough Council could have discussed the proposals, announced that they were going into Executive Session to discuss the lease-back, meet privately, and then returned to a public meeting.

We emailed Melissa Melewsky, media law counsel of the Pennsylvania NewsMedia Association, which provides services such as answering legal questions from the media, to request clarification on this matter.  We asked if Borough Council is permitted to discuss the sale of Borough-owned property in an Executive Session. She responded:

The general rule of the Sunshine Act requires public meetings anytime a quorum deliberates agency business. There is a real estate exception that permits private discussions among a quorum when an agency is buying or leasing (acquiring) real estate. This exception does not apply to the sale or other disposal of publicly owned real estate, and if a quorum is discussing the sale/disposal of public property, it must do so at a public meeting.

Just to be sure, we sent a follow-up question the next day.  Our question was, “But 100 percent the sale of real estate is not allowed in Exec Session?”  Her response was, “That’s correct”.

Melewsky also pointed us to a Grand Jury Report from 2005 (see page top of page 30) that specifies that the sale of real estate is not acceptable for inclusion in an Executive Session.  In this case elected officials were selling a nursing home owned by the public.

Based on this, I emailed Borough President Paul McConnell to find out the Borough’s position on this.  He replied with:

For the Borough, the key component of these proposals is the lease/leaseback, and the financial terms around that, which you yourself concur is appropriate for executive discussion. Regardless of anyones (sic) suggestions inclusive of yours, we are not going to be reckless and give away advantage to developers regarding tax payers money, and in this case inclusive of future tax payers money, by talking about lease terms publicly, which they would certainly get ahold (sic) of. In my tenure, and unlike other municipal entities, this council has worked hard and been successful in controlling taxes with no increases in my almost 6 yrs on, no service cuts, expansion of the police, even a decrease in an otherwise flat tax rate. That is why sunshine has these executive exceptions, and we will continue to give the best advantage we can have to the taxpayer, regardless of yours or anyone’s suggestion otherwise.

As we noted above, the lease portion is appropriate, however, based on what Melewsky stated there are portions of the proposals that legally should only be discussed in an open meeting.

Why does McConnell say we concur?  During a discussion on the RFP a few weeks ago we asked why the proposals could be redacted and why the discussion would happen behind closed doors.  His answer sounded logical, but we always try to verify what we are told.

Tonight we did some further research and found numerous stories about another Grand Jury Report, this time in Bucks County.  The Borough of Perkasie discussed the sale of a Borough-owned building in an Executive Session and was found to be in violation of the Sunshine Act.  PhillyBurbs.com reports:

Perkasie Council President Matt Aigeldinger said Monday night that council’s recent violation of the Pennsylvania Sunshine Act was an innocent mistake that won’t be repeated.

He was referring to a Bucks County grand jury’s finding that council was in “double violation” of the state’s open meeting law when members met behind closed doors March 5 to discuss the possibility of selling a borough building and giving a company a break on electric rates.

So where are we?  There are minimally two cases where it was deemed a violation of the Sunshine Act to discuss the sale of property in Executive Session.  Based on McConnell’s response to our inquiry the Borough disputes that it committed a violation.

Based on the lack of public input on the creation of the RFP, the unprecedented speed that the RFP was issued and is scheduled to be voted on, and a possible violation of the Sunshine Act, does Conshy believe Borough Council should table voting to accept one of the two proposals on August 21st?

Let us know in the comments.

Want to learn about the Sunshine Act? Click here to view a presentation on the topic.