Sunshine Act

TE School Board, Let the Sunshine In …

At the TESD School Board meeting of February 3, the School Board voted on a resolution to change the employment status of 73 full-time aides and paras in the District. The action was taken without notice, other than listing ‘ACA Update’ on the meeting agenda, and after five secret executive session discussions.  Not only does the February 3 action of the School Board disrespect our expectation of good government, some residents are of the opinion that a violation of the Sunshine Act has occurred, whether by misinterpretation or misapplication of the language of the Act, or by intention.

The Sunshine Act defines when government bodies must conduct official business in public and private, when they should allow public comment, and how and when to advertise meetings. The Act is a mechanism to increase public participation in the democratic process by minimizing secrecy in public affairs.  The School Board has had a “longstanding practice” of meeting in executive session before its regular meetings. In the case of their recent policy decision regarding the Affordable Care Act, it is unfortunate that these discussions were held in private, out of the light of the public eye and the benefit of public deliberation.

Legal proceedings are expensive for all parties and no one wants that burden. Seeking a remedy to the Sunshine Act violation, a small group of concerned citizens sent the letter below to the Board. The request is simple —  we are asking the School Board to re-open the discussion at their next meeting on Monday, February 23.  At the meeting, we ask for a thorough financial analysis of ACA options and strategies, an explanation of suggested policy changes and adequate time for resident’s comments.

If you too are concerned after reading the letter, you are encouraged to contact the School Board directly with your comments at schoolboard@tesd.net  as soon as possible.

February 13, 2015

Dear Members of the Tredyffrin Easttown School Board,

Re:  Pennsylvania Sunshine Act Violation

At the TE School Board meeting of February 3, 2015, under Agenda Item IX, B: Affordable Care Act Update, you directed the Administration to offer two employment options to full-time District aides, paraeducators and paraprofessionals.  The resolution was distributed during the Board meeting and it was stated by School Board President Kris Graham that the Board in five Executive Sessions had previously discussed this matter.

As residents of the Tredyffrin Easttown School District, we believe that the Board violated both the spirit and letter of the Pennsylvania Sunshine Act.

  • The General Assembly states that the public has the right to be present at all meetings to witness the deliberation, policy formulation and decision making of agencies. Secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.  The five closed meetings and the non-descriptive language on the agenda (“Affordable Care Update”) violate the spirit of the Sunshine Act.
  • Commonwealth Court has ruled that a specific reason must be given for each Executive Session so the public can “determine from the reason given whether they are being properly excluded from the session”. The Board violated the Sunshine Act as no specific reason was given for any of the five executive sessions and, in fact, we cannot determine from the record (as no meeting dates were given) whether these meetings were announced at all.
  • As no agenda exists for the five Executive Sessions, it is difficult to determine whether other sections of the Sunshine Act were violated. It may be that the Board justifies the Executive Sessions using either the “personnel” exception or the “negotiations” exception but neither exception is valid for the current situation as the discussion centered around a group of employees not subject to a CBA.

We suggest that these Executive Sessions constitute a violation of the Sunshine Act. We ask you to review your procedures and reasons behind these closed meetings. If a violation of the Act has occurred, we would suggest it be remedied by a full and transparent airing of the matter. A public challenge to a violation of the Sunshine Act could only result in individual penalties determined through the appropriate courts. We prefer the Board hold a duly advertised public meeting (preferably at its next scheduled meeting on February 23) at which the full spectrum of strategic options in response to the ACA is analyzed, presented and discussed, and at which a resolution is developed and voted upon.  By so doing, the Board can assure all employees and residents that its decision is based on a thorough examination and on the values of the community.

In reading the Act and interfacing with the PA FOIC, we are strongly of the opinion that a violation of the Sunshine Act has occurred, whether by misinterpretation or misapplication of the language of the Act, or by intention. We ask each of you to consider this seriously. This matter is of widespread concern in the community and time is pressing for the affected employees and for the legal process.  We trust that we will receive a responsive plan from you no later than close of business on February 20, 2015.

Please feel free to contact any one of the undersigned.

Sincerely,

(Letter signed by Pattye Benson, Ray Clarke, Neal Colligan, Jerry Henige, Barbara Jackson and Margaret Layden)

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1/28/13 TESD Consent Agenda Item — Approval for Administrator Bonuses & Compensation Plan

Included for priority discussion at Monday’s TESD meeting is the reconsideration of a District Safety Consultant and the hiring of Andy Chambers for the position.  The hiring of Chambers was previously included in the January 7 TESD meeting on the consent agenda but was not originally listed on the meeting agenda. Without proper notice on an agenda, the public is deprived of its right to be present and to know when decisions affecting the public are being made.

Yesterday, I received an anonymous email suggesting that I review the consent agenda for the January 28 meeting, specifically section C – Personnel. Admittedly, when I reviewed the agenda for the upcoming TESD meeting, my attention was to the safety consultant matter, overlooking this significant item.  Included on tomorrow’s consent agenda is the following:

C.  Personnel
1.  Routine Personnel Actions
The Board will take action on routine resignations, releases, retirements, leaves, and
appointments. The Board will also take action to record the names of volunteers who
have served in the schools in recent weeks.
2.  Supervisory and Confidential Employee Compensation Plan, Compensation
Adjustments for 2013 – 2014 and January 2013 One Time Bonuses
3.  Administrator Compensation Plan, Compensation Adjustments and January 2013 One
Time Bonuses
4.  Contracted Services

The description of ‘consent agenda’ on the January 28 TESD School Board agenda states, “Although Board action is required, it is generally unnecessary to hold discussion on these items. With the consent of all members, they are therefore grouped and approval is given in one motion.”

The purpose of a consent agenda is to group routine, noncontroversial items together to be voted on under one motion.  Items on the consent agenda should be routine items that board members don’t need any further information on prior to voting. The purpose of a consent agenda should not be used to hide important issues or stifle discussion.

Who is reviewing the TESD meeting agendas? For the January 7 TESD meeting, there was no mention made of anything related to ‘safety’ listed on the agenda, yet the hiring of Andy Chambers as the District Safety Consultant is added last-minute to the consent agenda.  Now a couple of weeks later at the next Board meeting, we have administrator compensation and bonuses listed as routine consent agenda items.  Again, … who is reviewing these meeting agendas?

Of the 141-page agenda, 40 pages are devoted to the compensation plan for supervisory and confidential employees and administrators and their one-time January 2013 bonuses.  To include the approval of non-bargaining administrator salaries, benefits and their bonuses in a consent agenda can hardly be considered ‘routine’!

The Sunshine Act, no more than the discussion to outsource the custodians or aides as a cost-savings budget strategy, does not protect the discussion of administrator compensation and bonuses. The School Board and Finance Committee meetings have repeatedly discussed various budget strategies including increasing class size, student activities fees, possible further cuts to educational programming and recently the decision to review non-profits’ use of real property for qualified tax exempt status.

To my knowledge (someone please correct me if I’m wrong), there has never been any public discussion of a (1) supervisory and confidential employee compensation plan, (2) compensation adjustment for 2013-14 or (3) one-time January 2013 bonuses.  So now, the matter just appears on the consent agenda for approval.  How is this possible?

In a review of ‘Compensation Plan for Supervisory and Confidential Employees” (pgs. 61-77), I read the following:

January 2013 – July 1, 2013 a one-time bonus will be awarded to each employee based upon the Superintendent’s recommendation. On July 1, 2013 adjustment to base for selected employees shall be recommended by the Superintendent.

July 1, 2014 – July 1, 2016:
For each of the academic years beginning July 1, 2014 and through to June 30, 2016, 1.7% of the total salaries of this group, from the prior year, will be available in a pool for the Superintendent to distribute, at his discretion and with Board approval, as base salary increases. Specific percentage increases will vary among members of the group. In June of each year, beginning in June 2014, a 1% one-time bonus will be awarded each individual for the previous year’s service.

Individual Salary/Compensation Changes:
1. Individual may receive an increase to his/her base salary
2. Individual may receive bonus (merit) adjustment which is not added to base salary, but paid throughout the current school year or paid in the form of a lump sum
3. Combination of the above

The Act 93 Agreement, the ‘Administrator Compensation Plan’, January 29, 2013 through June 30, 2017 (pgs. 78-101) contains the following:

January 2013-June 2017
In January 2013, each administrator shall receive a one time bonus for service in the previous two and half years as approved by the Board at its January 28, 2013 regular meeting. In addition, adjustments to base salary for the previous two and a half years will be approved by the Board at its January 28, 2013 regular meeting.

For each of the academic years beginning July 1, 2013 and through to June 30, 2017, 1.7% of the total salaries of this group, from the prior year, will be available in a pool for the Superintendent to distribute, at his discretion and with Board approval, as base salary increases; specific percentage increase will vary for any one individual.

Beginning in June 2014, and continuing annually in June of each year, a one time bonus of 1% of the individual’s salary will be awarded to each administrator for service in the previous year.

The Board may not have had any questions about the compensation plan and the bonuses, but I do —

  1. When did the School Board discuss the compensation plan and bonuses, or are they seeing this for the first time as a consent agenda item?
  2. Where was the public discussion about the administrator compensation plan?
  3. Where was the public discussion about supervisory and confidential employees receiving a one-time bonus? And it’s to be paid this month!
  4. What is the value of the one-time bonus? A percentage of salary or a set dollar amount (similar to the teachers $2500 bonus)
  5. How is the bonus calculated?
  6. What is the budget impact of the increased compensation?
  7. What is the value of the one-time bonus?
  8. Where is the money for the increased compensation and bonuses coming from?  (Is this how the District is using the $3.9 million surplus from 2011/12 that was announced in November 2012)
  9. What does the ‘adjustments to the base salary for the last 2-1/2 years’ mean?  Is the salary increase to the administrators retroactive?
  10. The financial distribution to administrators is at the discretion of Dan Waters?

How is it that something so important as this compensation and bonus plan can just get thrown in on a consent agenda without discussion? Bottom line …   where is the fiscal responsibility, accountability and transparency to the public?

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What do the sidewalks at St. Davids and Former Police Chief Andy Chambers have in common?

What do the St. Davids sidewalks and former Police Chief Andy Chambers have in common? There is an eerie similarity between a vote of the Tredyffrin Township Board of Supervisors on January 25, 2010 and a recent T/E School Board vote of January 7.

January 25, 2010 BOS Meeting:  Even though there was a signed land development agreement between Tredyffrin Township and St. Davids Golf Club requiring sidewalks, the Tredyffrin’s supervisors approved the return of $25K escrow money to the country club; removing the sidewalk agreement. Besides suggested Home Rule Charter violations surrounding the return of the escrow money, there was the procedural problem that the proposal had not appeared on the BOS meeting’agenda.  Against the objections of many residents and some of the supervisors, the motion carried 4-3.  For the record, Bob Lamina, Paul Olson, Warren Kampf and EJ Richter voted in favor of the motion and Michelle Kichline, Phil Donohue and John DiBuonaventuro voted against the motion.

After much media publicity, many letters to the editor, accusations of Home Rule Charter and Sunshine Act violations, claims of deal-making and general resident outrage, the supervisors reversed and rescinded their decision at the following Board of Supervisors meeting in March 2010.  Public comment is guaranteed by the Sunshine Act and the public’s rights were violated by the St. Davids sidewalk vote of January 25, 2010.

Fast forward to January 7, 2013:  Instead of the township failing to notify the public of an intended motion on its meeting agenda, it was the T/E School Board who failed to notify the public.  On January 7, the Board held a special meeting for the primary purpose to consider the 2013-14 preliminary budget proposal.  At the meeting, the School Board voted to apply for Act 1 exceptions beyond the 1.7% allowable tax cap.

A consent agenda listed on the January 7 meeting agenda included the approval of December 3 meeting minutes, monthly financial reports, routine personnel actions, etc. but made no mention of anything safety-related such as enhancements or the hiring of a District safety consultant. However, as we later learned, the hiring of former police chief Andy Chambers as the District Security Consultant (hourly rate – $125) was approved …  as it was ‘last-minute’ included along with the other items in the consent agenda. The agenda did not notify the public that the School Board would discuss anything safety-related at the special meeting, let alone the hiring of a ‘security consultant’.

Someone needs to explain to me how the actions of the School Board on January 7 are any different from the actions of the Board of Supervisors of January 25, 2010.  Both of these examples speak to the process of our government. The fact is that the Board of Supervisors vote of two years ago was not about sidewalks in the same way that the School Board’s vote of January 7 is not about the hiring of Andy Chambers as the District’s security consultant.  Rather, it is about transparency and open meetings; the basis for positive discussions between citizens and their elected officials.  Government decisions should not be made in secret.

The Sunshine Act defines when government bodies must conduct official business in public and private, when they should allow public comment, and how and when to advertise meetings. Executive closed meetings can only be called for the following six reasons:

  • Discussions of matters involving employment or performance of officers or employees of the agency, provided that any affected individual is given the opportunity to request, in writing, that the meeting be held in public.
  • Meetings involving collective bargaining, labor relations, and arbitration.
  • To consider the purchase or lease of real property.
  • matters falling under the attorney-client privilege regarding litigation or issues where an identifiable complaint is expected to be filed.
  • To discuss agency business which, if discussed in public, would lead to the disclosure of information protected by law, including ongoing investigations and information exempt under Pennsylvania’s Right-to-Know
  • To discuss matters of academic standing or admission at state schools

Responding to follow-up comments on the topic of the Sunshine Act, Keith Knauss, school board member of the Unionville Chadds Ford School District (UCF) offered this comment on Community Matters —

The Pennsylvania Sunshine Act requires all public agencies to take all official actions and conduct all deliberations leading up to official actions at public meetings. If the board met in executive session and deliberated on hiring Mr. Chambers, then they probably violated the Sunshine Act even though the official vote was taken in open session. It doesn’t matter if it is a contract or not. We’re conjecturing that the board deliberated (illegally) in executive session and based on that deliberation, took an official action to disburse funds to Mr. Chambers. We, of course, can only conjecture since the meeting was closed to the public.
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The current Sunshine Act took effect on January 3, 1987. This law replaces the old Open Meetings Laws of 1957 and 1974, Under the old law, public agencies were required to hold open meetings only if votes were taken or official policy adopted. This led to the frequent abuse of discussing and deciding issues in so-called “workshop” sessions, with the official public meetings being relegated to conducting formal votes on issues already decided in advance. The current Act requires that any deliberations leading up to official actions also take place at public meetings. Municipal governing bodies have no authority, either under the municipal codes or the Sunshine Act, to conduct “workshop” sessions.’

Question … At the upcoming January 28 School Board meeting, will the Board take responsibility for their January 7 action and reverse their decision to hire Andy Chambers as the District Security Consultant?

If the Board understands the Sunshine Act, and supports the importance of open meetings, the choice they make on January 28 will be simple.  The Board accepts responsibility for the situation and takes the necessary steps to correct the situation; reversing the decision and then appropriately advertising the matter for public discussion.

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And Then There Were 4 . . . Tredyffrin Interim Supervisor Candidate Drops Out

I have learned that Joe Muir has withdrawn his application from consideration for the interim supervisor vacancy.  Mr. Muir was a member of Tredyffrin’s 2009 Budget Advisory Working Group (BAWG).  He has a Marketing and Finance degree from Susquehanna University and his career has been in sales and sales management in the healthcare industry and is currently employed by IMS Health.  I do not know the reason for Mr. Muir’s decision to withdraw as an interim supervisor candidate.  I also do not know whether Mr. Muir will be a candidate in the Special Election.

Currently, there are four remaining interim supervisor candidates for consideration by the Board of Supervisors:  John Bravacos, Eamon Brazunas, Mike Heaberg and Kristen Mayock.  The deadline for submission of resumes to township manager, mgleason@tredyffrin.org is Monday, January 10. 

Following the candidate interview process, the Board of Supervisors will vote and appoint a supervisor on Monday, February 7.

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PA Sunshine Act Requires Tredyffrin’s Interim Supervisor Candidates to be Interviewed in Public

At the January 3 meeting, township supervisor Bob Lamina formally announced a board vacancy.  Interested residents were invited to submit their resumes to the township manager by January 10.  The process for appointing a new supervisor as explained by Lamina was that the candidates would be interviewed by the supervisors and then a vote and appointment would take place at the February 7 Board of Supervisors meeting. 

This process appeared to be straightforward to me.  As you know, I called the township manager and received the names of the five individuals that had submitted resumes.  I contacted the candidates and asked for their resumes, bio, etc. Three of the candidates (John Bravacos, Eamon Brazunas, and Kristen Mayock) supplied the information to me and the other two candidates (Mike Heaberg, Joe Muir) choose not to provide the information. In lieu of a resume from these two candidates, I provided a short bio.

What a difference a day makes!  After numerous calls, emails, etc. I now understand that Pennsylvania’s Sunshine Act complicates what appeared to be a simple, straightforward process to interview the interim supervisor candidates.  Under the Sunshine Law, the selection of a replacement supervisor is required to proceed in a fashion that is substantially different from what would likely be the case in a non-municipal setting.

At the beginning of each township supervisor meeting, the chair of the Board of Supervisors announces the topics that were discussed in Executive Session.  There are only three topics that qualify for private discussion (for purposes of reaching a decision) by the supervisors.  Those three, that qualify under certain circumstances for Executive Session consideration involve: 1) certain legal related items; 2) certain real estate acquisition related items; and 3) certain personnel related items.  The twist with #3 (and the reason that interviewing supervisor candidates does not qualify) is that a township supervisor is not an employee, from the standpoint of qualifying as a ‘personnel type’ that may qualify for executive session activity.  In other words, the whole process, including the interviews for a replacement interim supervisor, is required by the Sunshine Act to occur in advertised public meetings. 

If you are  interested in further information, here is a link to the Sunshine Act,  http://www.openrecordspa.org/sunshine.html  A statement to consider from the Open Records website, “Open meetings are the basis for positive discussions between citizens and their elected officials. Government decisions should not be made in secret.”

So what does all this mean for the selection of an interim supervisor for Tredyffrin . . . ?  It seems clear to me that the Sunshine Act requires public agencies to hold open meetings, provides for behind-closed-doors executive sessions in certain cases but specifically prohibits ones “involving the appointment or selection of any person to fill a vacancy in any elected office.”  There is a regularly scheduled Board of Supervisors meeting on Monday, January 24 where the interview process of prospective interim supervisor candidates could take place.  Since all Board of Supervisors meetings are advertised, I am guessing there would be no additional advertising (or expense) to the township.  On the other hand, if I understand the Sunshine Act correctly, a Special Supervisors Meeting could be scheduled (and advertised) for interviewing the candidates. 

However, the clock is ticking . . . so I suppose that the township manager, solicitor and Board of Supervisors are working on the next step to schedule the interview date for the five candidates.  Again, remember you can still submit your resumes through Monday, January 10 to the township manager, Mimi Gleason at mgleason@tredyffrin.org.  Having received emails/phone calls for me to encourage her, I am going to have another conversation with Judy DiFilippo and see if I can convince her to submit her resume to fill the interim supervisor position.

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