TESD: Here Comes the Sunshine Act and It’s Alright

After researching the issue and speaking with experts, a nonpartisan group of six residents (Ray Clarke, Neal Colligan, Jerry Henige, Barb Jackson, Peggy Layden and myself) believed the School Board deliberations at the TESD February 3, 2015 board meeting violated the Pennsylvania Sunshine Act. On February 13, 2105 via Certified Mail, a thoughtfully written letter was sent to the School Board members (President Kris Graham, VP Doug Carlson, Virginia Lastner, Scott Dorsey, Karen Cruickshank, Kevin Buraks, Liz Mercogliano, Jim Bruce and Pete Motel) stating our specific concerns regarding their process. (Click here to read February 13 letter to School Board).

As residents, we believed that with quick action at the next TE School Board meeting on February 23, the Board could remedy the process and maintain the trust of the community in the integrity of the District’s governance.

I received the following response from the School Board (via the District Solicitor Ken Roos), in an email Friday afternoon:

Dear Ms. Benson,

As District Solicitor, I respond on behalf of the School Board to the allegations of non-compliance with the Sunshine Act by the School Board contained in the letter you forwarded below. Please forward this response to the other signers of the letter.

At all times, the Board carefully considered its obligations under the Sunshine Act prior to each executive session and Board information meeting conducted with respect to the issue of benefits for District employees in light of the Affordable Care Act (ACA). At no time was the Sunshine Act violated. Moreover, the February 3, 2015 Board vote on this fully disclosed agenda item occurred after a lengthy public presentation, public Board discussion and public comment in full compliance with the Sunshine Act.

Kenneth A. Roos
Solicitor, Tredyffrin/Easttown School District

Although the reply is not surprising, I disagree and find it inadequate and dismissive as a response to the well-researched points that were raised in our letter of February 13 to members of the TE School Board.

My observations —

  • It’s unfortunate that these five separate Affordable Care Act discussions were held in private, out of the light of the public eye and the benefit of public deliberation.
  • It’s unfortunate that deliberation regarding an employment policy change for 73 full-time District employees occurred in private and that a resolution simply appeared at the end of the meeting with no advertisement or notification.
  • It’s unfortunate that the misleading ‘ACA Update’ listing on the meeting agenda is referenced [in the above response] as a “fully disclosed agenda item”.
  • It’s unfortunate that 73 dedicated full-time District employees are notified of the School Board’s policy change and outsource decision via a 10:30 PM email following the meeting.
  • It’s unfortunate that the public’s participation is not valued in important policy decisions.

There is no doubt that members of the school board have received many emails and phone calls from residents since the February 3 School Board meeting and my guess is that virtually none of these contacts was in support of their actions.

I cannot imagine that the actions of the TE School Board were not a violation of the Sunshine Law, but I can guarantee that it is a violation of the public trust.

After forwarding the solicitor’s email to the other letter signers, they were asked if they wanted to include their reactions to the District’s response in this post. Here are those responses:

From Ray Clarke:
I am disappointed to receive this denial of a crystal-clear case of a Sunshine Law violation by the individuals on the School Board. However, I suppose it would be a rare lawyer that would advise acknowledging guilt before the proceedings have begun. I am more disappointed that there is no sign that the Board plans to do the right thing and address the community’s widespread concern, in Monday’s meeting or at any other time. Residents have been deliberately shut out of a matter of widespread concern and need to make their feelings clear to the Board.

From Barb Jackson:
Ken Roos is the solicitor in the Lower Merion School District as well as the TE School District. I understand that the Radnor School District has recently hired him. It is well documented that Lower Merion residents are frustrated and angry about transparency issues in their district. I am disappointed that when confronted with legitimate questions about transparency and open communication from community members, the board turns to the solicitor Ken Roos to write this letter, instead of making every attempt possible to be open and transparent and invite community participation and input.

From Neal Colligan:
Really surprised they sent such a short and dismissing response. Our challenge to the Sunshine Act centers on the 5 Exec Meetings concerning this topic…not covered by the list of items allowed in Exec Session. This response does not defend the reason for these meetings only that “the Board considered … at no time did they violate…”. Our challenge to the process in deciding this issue was well thought-out, supported by experts we consulted and well written. The response was a simple quickly written e-mail. The two communications say volumes in their structure.

This is a legal response saying the Board met the minimum technical standards of the Act. Until proven otherwise, it’s a plausible defense. That said, it’s hard for me to think that all members of this elected body agree with the handling of this issue. I’m hopeful at least one member objects to the process in light of the public challenge … whether it can be proved right or wrong. I’m surprised but not shocked … possibly someone elected to represent the community will address the process employed here by stepping out from behind the Solicitor. We’ll see.

I’ve made an Open Records Request asking for the details of these Exec. Sessions not previously disclosed in public communications. We’ll see what that brings. Maybe the process was a full vetting of all alternatives in a thoughtful and complete presentation over several meetings … maybe not. Maybe the decision had been made a long time ago regarding these employees and the ACA and the Exec. Sessions were based on creating a tightly scripted response and explanation to be given at the end of a long public meeting with questionable (although technically compliant) notice to the community. Likely, we may never know … I’ll share what I receive when/if I get a response to my request.

IMPORTANT: The next School Board Meeting is this Monday, February 23 at 7:30 PM, Conestoga High Schools. This is an important issue — please plan to attend the meeting and have your voice heard.

You can email your concerns/questions regarding this issue directly to the TE School Board at schoolboard@tesd.net

14 Comments

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  1. Dear Pattye, Ray and Neal,
    Thank you for your continuing hard work. I’m not at all surprised the way this has turned out. The decision was already made almost 2 years ago when all this first started. I would think that our elected officials would at least have the decency to answer your letter personally instead of hiding behind the solicitor. What I am surprised about is that district residents keep voting to keep people on the school board who are not representing the desires of it’s citizens. Voting them out is the only way we are going to be able to change anything. One or two decent people sitting on the board isn’t enough.

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  2. This letter from Roos is an embarrassment and does not come close to answering the Sunshine Act issues which were raised. All the Board can do is stand behind Roos, don’t any of them have an independent thought?

    To build trust between the school board and the residents requires transparency and accountability. When did our school board lose their way?

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  3. The school board hired Roos to lead the charge using our tax payer money to do it. They are not hiding or standing behind him. They are standing alongside him and paying him to use his expertise and experience to work against us. He is their leader.

    I have attended committee meetings and board meetings where he intimidates, interrupts and shuts down tax paying citizens who ask questions or offer a different view than the one being presented by the board. He is very experienced, comfortable in his role and highly paid.

    Neal, isn’t Art McDonnell head of Open Records? What do you suppose the chances are of getting the information you seek from Art? I hope that you “asked the questions” the right way and “filled out the form” correctly. I have seen these as reasons given for not honoring open records requests.

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    Neal Colligan Reply:

    I did receive a response to my request on February 23rd (cover letter):

    “I am in receipt of your Right-to-Know request dated February 18, 2015. As the District’s Open Records Officer I am beginning the process of compiling the information you requested and this letter is a response to your request within five business days.

    At this time it has been determined that an extension of 30 days is necessary. Please refer to the attached response form for further detail. There may be fees associated with your request and you will be invoiced prior to receiving any information.”

    The reasons given for the delay in the response were detailed in the attached Response to Request documentation (only included the BOLD’ed items):

    “Basis for Review (applicable reasons in Bold)
    1. Request may require redaction of public record
    4. Legal review required to determine whether record is a public record
    7. The extent or nature of the request precludes a response within the required time period.

    Date of final response: March 27, 2015”

    This does not necessarily mean that a response will be given only that the Request is under review. Denial of the request could still be made based on the above reasons or others. We may not know for another 25 days.

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    Pattye Reply:

    Thanks for sharing the information on the RTK request Neal but what exactly does the following mean —

    There may be fees associated with your request and you will be invoiced prior to receiving any information.

    The only invoice that you could receive from the District would be for printing copies — right?

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    Neal Colligan Reply:

    I’m no expert and I’ve never been charged on prior requests but I do remember somewhere reading that there could be reasonable fees for copying redacted pages……

  4. Wow, this is one shady school district. All this to avoid the law of the land which is ACA. So what’s next? Is a private investigation an option!

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  5. Thank you, Pattye, for this. Please keep up the good work. And when the School Board comes up for re-election, please remind folks that this is why they need to go vote.

    It is sad when elected politicians continue to say that black is white and white is black – either thru their own voice or the paid voice which they hide behind.

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  6. Is there anybody/anything left to outsource? Are we going to turn T/E over to one of those for-profit education management companies? What should we be on the lookout for?

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  7. Christine,

    Be on the lookout for two new administrative hires in the TEAO at top of the pay scale salaries of $160,000 per year plus 30% PSERS plus 20% healthcare, and probably throw in bonuses for them too.

    Look out for the proposed $3M maintenance building cost and the Architect, District Costs and Contingencies cost of $7.2M on page 52 of the Monday Jan. 12, 2015 finance committee meeting agenda packet.

    And as Ray says:

    This makes it all the more important for you to critically examine the one discretionary spending item that defies understanding – raising $18 million that the District does not need, and will cost taxpayers over $28 million to repay. Further, you propose to eliminate the annual $300,000 savings from last Fall’s bond re-financing rather than giving taxpayers some offset to the otherwise continual expense increases.

    Look for all of this, Christine. You ask if there is anyone left to outsource, Yes, the next group will be TENIG, and after that the teachers, but don’t expect Administrators to be outsourced. I would expect that as they continue to cut student programs, and outsource others, that their salaries and numbers will only grow, alongside their power and contrel.

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  8. the fact remains the the ACA is untenable on many fronts.. this is one.. yes, votes count. and twice we got what we voted for.. tough one, eh?

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  9. Open Records (Right to Know Law)What are the biggest differences between the old law and the new law?

    The new law fundamentally changes the structure of Pennsylvania’s Right to Know Law. It begins with the presumption that state and local agency records are open for public inspection and copying and places the burden on a government agency denying access.

    What records can I get from Commonwealth and local agencies?

    Records are presumed open; burden is on agency. The new law begins with the presumption that all records held by Commonwealth and local agencies are publicly available — both for viewing and copying. The burden of proving that a record is non-public (or that an exemption applies) is on the agency denying access.

    The new law also provides access to public records in the possession of government contractors performing “governmental functions” on behalf of an agency. These records may be requested from the agencies.

    How much will it cost?

    Duplication fees. The Office of Open Records will set duplication fees for Commonwealth and local agencies. Legislative agencies and judicial agencies may establish their own fees. Any such fees must be reasonable and based upon fees for comparable duplication services provided by local business entities. Fees for local agencies may reflect regional price differences.

    Postage. Agencies may also collect fees for postage (actual cost only) and reasonable certification fees, where certification is requested by the requester.

    Fee waiver. Agencies may also waive fees at any time.

    AGENCIES MAY WAIVE THE FEES AT ANY TIME.

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  10. Check Regulation 1123..explains it all.
    I’d ask for a rough estimate when this reg was updated in 2008 it was .25 per page and a retrieval fee for admin clerical time @ $60 an hr.

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  11. Thanks CHV,

    From the TESD website, under “Our District” and then Policy and Regulations

    Policy
    1123

    Public Access to School District Records
    The purpose of this policy is to establish and provide for the enforcement of reasonable rules governing the examination or the making of extracts, copies, photographs or photocopies of School District records that are public records or to which the public may have access as defined below. The District shall post at the administration building and on the District’s web site, information regarding this Policy as required by law. Procedures regarding this Policy are promulgated in the administrative regulation related to this Policy.
    Open Records Officer
    The Board shall designate an Open Records Officer, who shall be responsible
    for enforcing District Policy
    regarding public access to District records. Requests for
    information directed to individuals other than
    the Open Records Officer do not constitute
    requests for District records under this Policy.
    General
    The District shall not limit the number of records requested.
    When responding to a request for access, the District is not required to create a record
    that does not exist, nor to compile, maintain, format or organize a record in a manner
    which the District does not currently use.
    Records Requests
    The District shall not require an explanation of
    the reason for the request of records or the
    intended use of the requested record, unless permitted by law.
    Original District records shall not be removed from the District building, nor from the control or supervision of the Open Records Officer or his/her designee.
    Requests for Agenda Materials
    Requests for meeting agenda materials made after the meeting must be made to the Open
    Records Officer.
    Fees
    Fees for duplication and other forms of
    document response and, where applicable,
    document retrieval, will be charged according to a fee schedule which shall be
    periodically updated and included in a regulation issued pursuant to this Policy.
    TESD

    Policy
    1123

    No fee may be imposed for review of a record
    to determine whether the record is subject
    to access under law.
    Prior to granting access, the District may require prepayment of estimated fees when the
    fees required to fulfill the request are expected
    to exceed a set dollar amount, as indicated
    in a regulation issued pursuant to this Policy.
    Public Access to School District Records Which Do Not Qualify as Public Records Under
    State Law
    The primary responsibility of the administration and teaching staff of the District is the
    education of the students. The Board and administration will establish procedures for
    fulfilling individual requests for information. In providing that information, the Board
    believes it is appropriate to balance the public requests for information with the time
    constraints of the administration and the teaching staff.
    If the records requested do not
    fall under the definition of “public records” previously set forth in this Policy, and are
    not exempted from inspection
    by law, in addition to the
    aforementioned fees, the District
    will charge a retrieval fee
    for administrative and clerical
    time. The District reserves the right to decline to respond
    to a record retrieval request for such records if deemed by the Superintendent or the
    Superintendent’s designee to constitute an undue burden on staff.
    The determination of whether the requested information is a “public record” or
    information to which the public may have access will be made by the Open Records
    Officer in consultation with the District Solicitor’s office.
    Adopted: June 3, 2002
    Revised: Novem
    ber 18, 2002
    Revised: June 6, 2005
    Revised: Novem
    ber 17, 2008
    Revised: June 14, 2010
    – 2 – Tredy
    ffrin/Easttown School District
    ———————————————————–

    ****The District reserves the right to decline to respond
    to a record retrieval request for such records if deemed by the Superintendent or the
    Superintendent’s designee to constitute an undue burden on staff.***********

    [Reply]

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