Victory for Government Transparency: Citizen wins Open Records Case against TE School District

Neal Colligan wins in Colligan v. Tredyffrin-Easttown School District case!

Between November 2014 and February 2015, School Board president Kris Graham called five special Executive Sessions to discuss the Affordable Care Act and the outsourcing of the District’s aides and paraeducators. These meetings were held out of the light of the public eye and without benefit of public deliberation. The meetings were not a harmless error but rather, a deliberate attempt to be secretive.

In early 2015, the Board continued to discuss outsourcing of 73 full-times aides and paras as a budget strategy. Then in a surprise move at the February 3, 2015 TESD meeting, the Board approved a resolution to change their employment status.

Citing on-going transparency concerns in School Board deliberations, a small group of citizens (Neal Colligan, Ray Clarke, Peggy Layden, Barbara Jackson, Jerry Henige and myself) sent a certified letter to the Board, appealing to them to reopen the outsourcing discussion and allow public commentary.

In a response on behalf of the School Board, the District Solicitor Ken Roos of Wisler Pearlstine claimed that no Sunshine Act violation had occurred and that the Board was in full compliance with public discussion. Beyond Roos’ dismissive and trivializing response, it remained clear to many, that the District had not provided adequate notice to the public regarding the proposed policy changes nor specific reasons for each of the five Executive Session discussions of the Affordable Care Act.

Advocating for government transparency, Neal Colligan filed a Right to Know request with the District for TESD records related to the secret Executive Sessions.  The RTK request was denied, with the District Solicitor stating that the records pertained to “labor relations strategy and predecisional deliberations” of the District.

On March 28, 2015, Colligan filed an appeal with the Pennsylvania Office of Open Records, Colligan v. Tredyffrin-Easttown School District, Docket No.: AP 2015-0442. News came yesterday from Harrisburg that Roos had lost the case for the District.  PA Office of Open Records (OOR) attorney Jill Wolfe notified Neal (and Roos, Supt. Dan Waters and TESD Open Records officer Art McDonnell) of the Final Determination. In the Colligan v. Tredyffrin-Easttown School District case, Neal’s appeal was granted and the District is required to provide all requested Affordable Care Act records from the secret Executive Sessions within 30 days.   (Click here to read the OOR Final Determination).

In their legal analysis of the case, the OOR cited SWB Yankees LLC v Wintermantel, 45 A.3d1029, 1041 (PA 2012), “the objective of the Right to Know Law … is to empower citizens by affording them access to information concerning the activities of their government.”  The analysis further offered that in Bowling v. Office of Open Records, 990 A.d813,824 (Pa.Commw.Ct20140) the open-government law is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.”

Touting the secret meetings as legal, the School Board hid behind the legal advice of the solicitor by holding secret meetings on the Affordable Care Act and deliberations regarding the future of the aides and paraeducators.  Believing that that they were within their rights to hold such meetings, Board member and attorney Kevin Buraks responded to residents at TESD meeting that although this [secret meetings] wasn’t normally how the Board operated, they did so because it was a “strategic decision”. According to the Final Determination of the OOR, the information discussed at the “secret” meetings was not “secret” after all.

I have learned that subsequent to the Board’s February vote to change the employment status of the aides and paras, that School Board president Kris Graham barred her fellow school board member Liz Mercogliano from attending any of the five secret ACA meetings. This information is very troubling; Liz is an elected official and has the same rights as the other eight members. How could the District solicitor and other Board members sanction this behavior and not speak out?

It just is enormously frustrating that citizens can’t access records that are open and have to fight for records that the School Board should have provided. How much taxpayer money has been spent on fighting public records requests? The School Board should encourage public participation in the democratic process by minimizing secrecy in public affairs.  Addressing public questions shows us that you have nothing to hide and that as elected officials, that you support transparency and open government.

Through his Right-to-Know request and his open records appeal, Neal Colligan asked for transparency and easily accessible information that should be public information.  He was not looking to unearth government secrets … simply asking for public information.  After receiving the Final Determination from the Office of Open Records, Neal emailed the Board, which read in part:

The real question is what will happen now … You could elect to finally provide the public with the information used in your Executive Meeting discussions regarding the fate of the Para’s and Aides in the District.  This would be the right thing to do in your continuing efforts to be a transparent government organization.  You had your Solicitor argue the matter to the Open Records Committee and they decided you/he did not meet the burden of proof that these records should continue to be shielded from the public.  I encourage you to direct the appropriate parties to take action and release these records immediately …. and not after another 30 days.

If you do not make the choice above, you can continue to fight this citizen of the community by appealing the OOR decision to the Court of Common Pleas.  By choosing this path, you will continue to spend the taxpayer’s money in a continued effort to keep your Executive Session meetings regarding the paras and sides secret from the very community you were elected to serve.

How much taxpayer money has already been expended on legal maneuverings?  Do you want to continue this fight against the engaged citizens of your community by entering into the next level of legal action?  Who is in charge here/who is calling the shots?  We all await your reply.

As Neal says, we do await the Board’s response.  The outsourcing threat for the District’s aides and paraeducators has been omnipresent since 2013. Aides and paraeducators are the only group of District employees not covered by health insurance (and the only group of employees without collective bargaining status). Unfortunately, they have become the pawns of the School Board, the administration and the District solicitor causing some of us to question decisions of the Board’s leadership.  The Board voted in February to outsource full-time aides and paras yet no vendor selection as been made.  A decision is expected on Monday, April 27, 7:30 PM TE School Board meeting at Conestoga High School.

Will the Colligan v. Tredyffrin-Easttown School District outcome have an effect on the Board’s decisions regarding the District’s aides and paras? Was the School Board’s avoidance of ACA compliance and outsourcing of the District’s aides and paraeducators worth the price of an Open Records Law violation? Residents may never know the actual cost of the Board’s secret meetings or the District’s legal costs to keep public information from the public.

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38 Comments

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  1. I am slowly digesting what I am reading. This Board was elected to supervise, have legal responsibilities to all of the residents and its employees. They’ve clearly violated the law and their misuse of power and lack of transparency is so deeply disturbing. Pattye, when is the next meeting? Should our lawyer be fired? Should our Board be fined? If these decisions were made outside of the law, what should happen now to the Aides?

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  2. Graham barred her fellow school board member Liz Mercogliano from attending any of the five secret ACA meetings.

    Interesting! What was the reason given?

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  3. Kris Graham should absolutely resign. Roos should be immediately fired. Be interesting to see the fallout. We all wait…..

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  4. Great job. Any chance impeachment is a possibility under some clause of honor and integrity?

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    Pattye Reply:

    Interesting — I wonder if there’s any precedent?

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  5. Wouldn’t it be a conflict of interest for Roos to advise the Board on how to handle this? His reputation is on the line and his only means of salvaging it would be to appeal. So even if there was only a tiny chance of winning an appeal – wouldn’t he push for an appeal?

    It’s time for the Board to remember its priorities. Turn over the requested information and focus our tax dollars on the students.

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  6. Thank you. Now the aides/paras need the parents and community to support them. This group of staff members are the link between the students and the teachers and the case managers. It’s about time the board sees them as the valued professionals they are.

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  7. When will the school board nonsense stop?? Unnecessary fencing, outsourcing of valued employees, cover-up of business manager DUIs, deals cut in the backroom. This board does not understand the meaning of transparency and public input.

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  8. They are elected officials. There has to be standards of conduct, pledges etc. that they have to sign or abide by written down somewhere. It’s nothing short of conspiracy honestly. That has to be an impeachable offense on its own.

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  9. This is an important development. An independent state agency has ruled that TESD has demonstrated no grounds on which to withhold requested information from the public. The District’s dismissive treatment of a legitimate citizen inquiry matches their Solicitor’s cursory reply to the notice of Sunshine Act violation. I hope that the Board realizes that they need to change the way they do business. They are elected to represent the full spectrum of residents, not to be a unanimous, un-critical pass-through for policies that make life easier for the Administration. It looks like there will be a complete make-over at the next elections, and I hope that the next generation is paying attention.

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    Pattye Reply:

    I couldn’t agree more Ray!

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  10. The vendors listed on the school district site are CCRES and Delta-T. They will be mentioned in Monday’s school board meeting. In reading the contracts with both vendors I didn’t see stated that the aids/paras would be for sure getting their present day jobs back next year or they would just be guaranteed a job possibly in the district. Two years ago the aids/paras overflowed the school board meeting and even had a couple of news crews there. They all should be there Monday night and it would be great to see teachers also show for support. The teachers should be ready for different aids/paras that will be coming and going with the vendors. Thanks for everything you do to Pattye and Neal.

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  11. The board claims they need to save money and cut expenses by outsourcing aides and paras, the lowest paid and only group without medical benefits. Yet, a few years ago they voted to provide retirement bonuses of up to the annual salary of administrators. How does the district benefit from the retirement bonus for the Superintendent and other administrators?

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  12. Does the context of this ruling make the vote taken in February moot or invalid?

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    Pattye Reply:

    If I base my response on the TE School Board agenda for Monday night, I would say that the Open Records ruling has done nothing to change the situation or the minds of the School Board. One of the agenda items is the outsourcing vendor selection for the District’s aides and paras. However, as our resident letter suggested in February, I still believe that the Board should have provided a thorough analysis of health care costs vs outsourcing costs and provided for public commentary. The public was never a complete overview with verified ‘actual’ numbers. Whatever went on behind the closed doors in those 5 executive sessions regarding ACA, health care and compliance costs, etc. should have been provided to the public. If there are so certain that outsourcing the jobs of aides and paras is the most cost effective approach — why hide the information from the public?

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    CJ of the Main Line Reply:

    Does anyone have a full copy of Parliamentary Procedure at a Glance, by O. Garfield Jones? This is what the district uses to govern is procedures. If so, please look this up!

    I’m more familiar with Roberts Rules, where generally any vote taken that did not follow proper procedure is void and must be re-voted on following proper procedure.

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  13. To be clear — there is a link in the post to the Final Determination from the Office of Open Records in the Neal Colligan vs. Tredyffrin Easttown School District. Click on the link and you can read the complete ruling.

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  14. Read the opinion. Looks like the district can appeal. If they present sworn statements this time, the decision could get overturned.

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    Pattye Reply:

    Yes, the District has a couple of options — Within 30 days the school board can (1) provide the ACA information from the secret meetings as requested by Neal Colligan or (2) appeal the Open Records decision to Chester County Court of Common Pleas.

    There is no ‘do-over’ with the Office of Open Records — the decision was a ‘Final Determination’. If all that was missing was ‘sworn’ statements, why didn’t the solicitor provide that to OOR when requested. From the time the appeal was filed with OOR, each party had 7 days to provide background and supporting citations, etc. etc. Looks to me like one side did a better job in presenting the case than the other side did! And how ironic, that the Colligan ‘side’ did the necessary homework, and provided the appropriate case law, background, etc. and did so without the use of an attorney!

    We have no way of knowing if the District Solicitor Ken Roos was even able to provide additional information — it may not have been possible and we will never know. If it was simply that the solicitor somehow ‘missed’ including the necessary materials, than shame on him, his oversight lost the case. Bottom line, even if you argue that the case was won on a ‘very narrow’ technicality — it was nonetheless, still won!

    The School Board could decide to appeal this situation to the Court of Common Pleas — expending more taxpayer dollars on legal fees in the hopes of getting the decision overturned. For what end … to put off school district transparency as long as they can so that they can continue to make decisions in secret meetings without public input. If that is their end game, then I guess they will mount an appeal.

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  15. I encourage anyone interested in the aide/para outsourcing to review the materials provided with the agenda for Monday’s meeting. Hopefully the meeting itself will provide more clarity.

    http://www.tesd.net/cms/lib/PA01001259/Centricity/Domain/56/April%2027%202015%20eAgenda%20-%20PUBLIC.pdf
    Pages 13 – 44

    The main agenda references “VI. B. Selection of Vendor for District Aides, Paraeducators and Paraprofessionals”. In the back up information, two identical motions are presented, for CCRES and Delta-T, along with two proposed contracts. The idea to approve one and reject the other?

    This because Delta T’s proposal seems to be intended to be conditional on being “…the exclusive third party provider of paraprofessional and support personnel (“Paraprofessionals”) solely for those Paraprofessionals previously employed with the District that subsequently are accepted to render services hereunder as set forth on Exhibit A”. CCRES does not have a clause like that, whatever it actually means.

    Both proposals are stated to be the same cost to the District. CCRES proposes a 9% mark up on wages only, plus passing through all benefits costs. Delta-T proposes a 24% mark up on “actual and necessary costs ….”, but are all these costs being passed through as well? Delta-T does propose to offer “minimum essential healthcare”. Both contracts are for three years and are distinct from their other contracts with the district.

    In general, the CCRES document looks more like a finished product than that for Delta-T, which also seems to lose track of its sub-paragraphs somewhere in the [L] and [M] range. My guess is that CCRES has become favored, notwithstanding the original Finance committee vote for Delta-T.

    The problem with all of this is that it does not seem to be taking any account of what is likely to happen in real life – taking the perspective of the actual employees. Some of the aides/paras will prefer to work part time with the District; they might look also for part-time employment with one of these two vendors. Could they have two part-time jobs replicating their current hours and duties? Does the district have to keep the 73 full time positions separately identified? What happens if it has too many part-time employees? Can the district force a person to work for a specific third party – maybe some of the 73 would like to work for the non-selected vendor and expect to get placed back in the district (or somewhere else) under that vendor’s other contract when another post opens up?

    The Board vote to select a primary vendor (whatever that means) got them locked into this real muddle with the prospect of multiple contracts, multiple classes of employee, no realistic financial projections and no-one satisfied.

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    Neal Colligan Reply:

    Yes Ray, very confusing on the costs/structures. CCRES does not take away the rick that the ACA penalty for not providing insurance is imposed in future years ($146,000). I thought this was the key element of the contract! Seems that costs of outsourcing with this provider could include the costs to the District of the Employer mandate penalty after all.

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  16. There is no do-over with the OOR, but there can be a de novo hearing with the common pleas court, assuming the district appeals. Assuming the power point is released, then what? What is Colligan prepared to do?

    If the district believes this is attorney work product such it is privileged, the district must appeal.

    Ultimately, the district is allowed to outsource. Reading the opinion, it does appear the matter turned on the lack of sworn statements. If those are supplied, the CP may very well decide
    in the district’s failure. Seems this is more about procedure instead of the merits of the district’s primary argument which the OOR didn’t dispute.

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    Pattye Reply:

    Reading the opinion, it does appear the matter turned on the lack of sworn statements. If those are supplied, the CP may very well decide in the district’s failure. Seems this is more about procedure instead of the merits of the district’s primary argument which the OOR didn’t dispute.

    I disagree. Perhaps Neal C. will weigh in on his thoughts regarding the decision.

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  17. Why do you disagree? There were two conclusions. 1. The PowerPoints are not protected by attorney client privledge.

    2. The district didn’t meet its burden that the records were properly withheld.

    In both cases, it was the district’s unsworn statements that are cited as not being sufficient. Note that the content of those statements are not being challenged. Also, footnotes 3 & 4 instruct what the district needs to fix. Footnote 2 makes clear that in an appeal, the district can bring up new theories that were not presented to the OOR.

    I’m simply reading the plain text of the opinion and that’s my conclusion. What text leads you to a different conclusion?

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    Pattye Reply:

    Pls. read Neal Colligan’s comment.

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  18. I’m not a lawyer but I’ll give you my two cents. The burden of proof for keeping documents/records out of the public domain rest squarely with the Governmental Agency withholding the documents. So, in this appeal to the District’s denial to release certain records, they are tasked with proving that the Right to Know Law provides a legal shelter for said records to remain out of the public venue. The District claimed two of these “safe harbors” under the RTKL….attorney-client privilege and the exemption for “internal, predecisional deliberations”. In each argument, the Appeals Officer decided the District did not meet the Burden of Proof to sustain these arguments.

    Now, in both explanations, the Appeal’s Officer does site the lack of a sworn statement BUT look at footnote #3 and #4. While the sworn statement of Mr. McDonnell was lacking, the unsworn statement provided was still lacking in other factual ways. On the attorney-client privilege argument, the Appeal’s Officer cited, “there is no attestation with respect to the attorney-client privilege and how the records apply to each element of the privilege”. In the second argument (predecisional…), the Appeal’s Officer cites, “there is no attestation with respect to how the records apply to each element of the Section 708(b)(10) and Section 708(b)(8) of the RTKL”. My reading is that they still have some way to go to reach their Burden of Proof.

    Again, I’m not a lawyer and I don’t know if we prevailed because they did a sloppy job in their informational brief. The District is represented by Counsel who should be experienced in this…I got Ray Clarke…the odds were already in their favor…nothing personal Ray, we’re just not attorneys. We did our best to make our case and we had our request Granted! For whatever reason, we received a finding in our favor. Now, we wait to see what the District will choose to do….

    It’s been 83 days since the 2/3/15 decision to outsource and 70 days since the public asked for these records. Now, there exists a requirement from the Open Records Office of the Commonwealth to release the documents in question. AND, the decision regarding the employment fate of the paras and aides goes to contract discussion tomorrow night….the documents of the secret Exec. Meetings in Nov, Dec, and Jan detailing the information the Board used in making their decision to outsource are pretty stale at this point…maybe that was their objective all along.

    The issue is, and always was, one of transparency regarding the operations of this Governmental body. We’re not the only members of this community asking for information through Right to Know Requests and receiving denials….this shows that the citizens can win if they are willing to spend the time/effort. The unfortunate part is that you will have to go up against the Solicitor…paid for by your tax dollars….and that is a decision of our elected officials who allow this…the Solicitor exist in an advisory function only…the Board makes the policy.

    Pattye, it’s fine by me if you want to put all of this on-line….our argument, the District’s, my appeal documentation….all of it if you feel comfortable with that. Maybe the lawyers out there would be interested and they may see something that my non-legal eyes do not see. BUT, I’d rather not argue the legal ins-and-outs of this….it’s a bigger question of transparency on a whole host of issues…maybe this causes a change. What happens now is really the most important thing.

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    Pattye Reply:

    Thanks Neal. I’ll get the appeal argument and the District’s response on CM by tomorrow.

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    Read it too Reply:

    Neal,

    Since you are running for school board, are you saying that if you were on the board, you would not vote to outsource? You do know however, the board has the right to mAle such a decision.

    You do realize the OOR is an administrative proceeding. If this gets appealed, which is likely, it will be essentially starting over. Seriously, what do you think you’ll learn should the requested docs be released? Will there be some Earth shattering revelation? Will the $’s spent be worth it? Time will tell.

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    RTK Expert Reply:

    Readittoo,
    Your questions have already been answered very clearly.

    It has nothing to do with what is in the documents:
    “the documents of the secret Exec. Meetings in Nov, Dec, and Jan detailing the information the Board used in making their decision to outsource are pretty stale at this point..”

    It has everything to do with open government:
    “The issue is, and always was, one of transparency regarding the operations of this Governmental body.”

    Did the board violate the Sunshine Act or the Right to Know Law? At this point it is open to debate. However, the board could have taken the high road and avoided litigation by being transparent – even if they were advised that they could legally deliberate in secret. Had they taken the high road they would have been open to criticism, but would have built public trust. Now they are open to criticism and have diminished public trust.

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    Pattye Reply:

    diminished public trust

    absolutely!

  19. The district lost because they didn’t satisfy the specific “elements” (pass the specific tests) required to buttress their argument that the records were protected from public disclosure under either the “internal, predecisional deliberations” or “attorney-client privilege” exemptions. These “elements” are well known to Roos and any legal firm familiar with RTK litigation.

    Roos and McDonnell already took the trouble to provide sworn affidavits. So why didn’t they take the simple step to add the needed “elements”? My guess is that they couldn’t. We’ll know in the next few weeks.

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  20. Nobody has answered the impeachment question yet. There has to be something they sign or pledge etc.

    Also, The removal of these legal loopholes that obstruct transparency need to be removed.

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    Read it too Reply:

    Recalls are unconstitutional in PA. Short of criminal charges such that the board member would be ineligible to hold office, they stay.

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  21. Will this affect the boards decision to out source the 73 Paras?
    Is this on the agenda for tonight?

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    Pattye Reply:

    The selection of an outsourcing vendor for the aides and paras is on tonight’s agenda. Therefore the takeaway is that transparency is not a high priority for the Board. it is interesting that the ‘vendor of choice’ (at least the one recommended at Virginia Lastner’s Finance Meeting) Delta T has 73 full time employees as part of their proposed contract. There are NOT 73 District aides and paras left — and there was never going to be 73, as many were opting to stay with the District but reduce their full-time hours to 27.5 hrs. or less.

    The reason that the Finance Committee voted to recommend Delta T over CRES was because DeltaT did not include passing back any ACA penalty back to the District. If there was a ACA compliance issue and a penalty, CRES would pass that penalty back to the District whereas DeltaT did not. One of the major stated reasons that the School Board planned to outsource the aides and paras was to avoid paying health care and ACA compliance penalties. So, it seems rather disingenuous on the Board’s part to outsource to a company that will pass that penalty back to the District. This process was flawed from the start and remains so …

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  22. Neal,

    GIven this litigation, what is your stance with Kris Graham given that you are both endorsed by the TTGOP? You have to admit this is a first for Tredyffrin Politics!

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