Regarding the last school board meeting on Monday, August 23, I attended the meeting until 10:30 PM which was through the District’s Health & Safety Plan update and resident comments. Nearly a week later, the school board meeting video is not yet available — the District offers the following explanation for the delay on their website:
Due to the need to edit profane comments by audience members captured on the recording of the August 23, 2021 Regular School Board Meeting video, the recording will be posted online as soon as editing is complete.
I do not make a blog post about a meeting unless I have attended it or watched the video. Beyond the Health & Safety Plan Update and subsequent resident comments, I have no idea what occurred during the remainder of the meeting. The August 23 school board meeting agenda was lengthy, 122 pages long. To be clear, I attended the meeting 7:30 PM – 10:30 PM but left following the Priority Discussion (pg. 2 of agenda).
Because the new school year is upon us, and it is unclear when the District will release the edited school board meeting video, this post is limited to the Health & Safety Plan Update, which includes the mask mandate.
Prior to the start of the school board meeting there was an “Unmask T/E” rally held outside of Valley Forge Middle School with about fifty people in attendance carrying signs, posters, and flags.
The anti-mask school board protest followed the heated debates about “critical race theory” (CRT) from the previous school board meeting in June. Across the country, school board meetings have become the ‘perfect battlegrounds’ for vicious culture wars, and T/E is no exception.
After the Unmask T/E rally, protestors opposing the mask mandate attended the school board meeting. My impression was that the audience was about equally divided between those “for” and those “against” the District’s proposed mandate.
After the Health & Safety Plan presentation by the District, residents lined up and intense, emotional comments went on for hours – each commentor given a 3-minute limit, with the District attorney Ken Roos serving as the timekeeper. Although many of those who spoke were respectful and measured in their remarks (both supporting and opposing the mandate), there were some over-the-top residents who choose to yell and use inappropriate language when sharing their stance on a mask mandate.
School board president Michele Burger was relentless during the resident comment period, continuously stopping the process to point out audience members who were unmasked (or where masks were “below the nose”) with a constant threat to stop the in-person meeting and go virtual. Another continual remark from the president was to point to the District’s civility policy.
Interestingly, resident Doug Anestad commented to the school board that the board meeting was not legally permitted to “go virtual” – a point which the District attorney Ken Roos disputed.
One resident asked the question about what happens if your child doesn’t wear a mask. The response from the Superintendent was vague. Dr. Gusick responded that the District’s education program required mask wearing and that masks would be available.
The parent followed up and again asked specifically, “What” would happen to her child if they did not wear a mask. It process is unclear as to what would happen. Say it’s an older student who may enter the high school wearing a mask and then takes it off and refuses to wear it.
What’s the procedure (Plan B?) for mask noncompliance – Are parents called? Is the student sent home? If the student continues to daily refuse to wear a mask at school, what is the next step? If a parent is strongly opposed to mask-wearing, it is not a stretch to think that his or her child may share that belief. (This remark assumes that there is not a medical and/or religious reason for not wearing a mask).
There was a police presence both outside during the anti-mask mandate rally and then inside Valley Forge Middle School for the meeting. In my opinion, rather than a constant threat to stop the meeting, perhaps after one or two strong warnings, actual action and the removal of those audience members not in compliance would have been in order.
Ultimately the school board voted 9-0 to approve the District’s Heath & Safety Plan update, which requires all “individuals aged two and over to wear a face covering while indoors in any District building and on school buses regardless of vaccination status. Masking is optional but welcome during outdoor activities such as recess, activity or physical education …”.
In closing, with the start of school — my best wishes to the students, parents and staff for a very successful school year!
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On a personal note, our only child is a high-risk OBGYN fertility surgeon at the University of Washington at Seattle (yes, the hospital where the first known COVID patients arrived in late February 2020). Lyndsey has delivered high-risk babies (many to Moms with COVID) while wearing a full hazmat uniform for the last eighteen months. I support vaccines, mask wearing and anything else that science deems may possibly help rid the world of COVID.
AMEN to what you just said, Pattye!
Here is the email that I sent the board after the meeting after president Burger did not allow me to object under the Sunshine Act to the virtual meeting threat as I am legally allowed to do under the Sunshine Act. Sorry, the formatting is much better in the original email, but didn’t format that well for this website…
Dear Tredyffrin/Easttown School Board,
The last school board meeting and previous emails has made it abundantly clear that the school board and/or solicitor do not understand the Sunshine Act on multiple issues.
Raising Objections
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The Pennsylvania Sunshine Act, 65 Pa.C.S. §§ 701-716 is very clear that anyone can raise an objection to a perceived violation at any meeting at any time.
President Burger was not only wrong when claiming that I was out of order when I was trying to object to the virtual meeting threatened by the school board, she was breaking the law. Specifically TITLE 65 PUBLIC OFFICERS, PART II. ACCOUNTABILITY, § 710.1. Public participation., (c) Objection which states (red underlined text for emphasis):
https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/65/65.HTM
§ 710.1. Public participation.
(c) Objection.–Any person has the right to raise an objection at any time to a perceived violation of this chapter at any meeting of a board or council of a political subdivision or an authority created by a political subdivision.
Please read that carefully, then re-read it, then read it again.
Just to be clear, a school district is a political subdivision.
Not allowing me the right to object, explicitly allowed under the law, is in fact a crime and punishable as follows:
https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/65/65.HTM
§ 714. Penalty.
(a) Fines and costs.–Any member of any agency who participates in a meeting with the intent and purpose by that member of violating this chapter commits a summary offense and shall, upon conviction, be sentenced to pay:
(1) For a first offense, the costs of prosecution plus a fine of at least $100 and, in the discretion of the sentencing authority, of not more than $1,000.
(2) For a second or subsequent offense, the costs of prosecution plus a fine of at least $500 and, in the discretion of the sentencing authority, of not more than $2,000.
(b) Payment.–An agency shall not make a payment on behalf of or reimburse a member of an agency for a fine or cost resulting from the member’s violation of this section.
§ 714.1. Attorney fees.
If the court determines that an agency willfully or with wanton disregard violated a provision of this chapter, in whole or in part, the court shall award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs. If the court finds that the legal challenge was of a frivolous nature or was brought with no substantial justification, the court shall award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs.
That means that if I hired a lawyer and won, the school district would have to pay for my lawyer. Given the explicit language of § 710.1 above as well as the prior notice that I have given you, this would pretty much be a legal slam dunk.
I would like to point out that summary offenses in Pennsylvania are in fact considered a criminal conviction and will show up on your criminal record. This means that president Burger would have had a fine (that she must personally pay) and a summary offense on her criminal record. She would have been the one found guilty as she was the one that was not allowing me to speak. Anyone who wants to be president of the board in the future should really understand the Sunshine Act and not rely on Ken Roos and his law firm. They have demonstrated that they will protect the administration and not necessarily the school board even though it is you who are are technically his boss.
Ken Roos should have notified president Burger when I was raising the objection that I had a right to raise the objection. However, your solicitor has a long history of ignoring the rights of the people granted to us by statute while also stating that the public is not allowed to do other things when no such rules exist. That behavior puts the school board members and the school district at risk. He understands the right for a member of the public to object as shown by the exchange we had at the June meeting. His response at the June meeting clearly shows that he knows this fact. Why didn’t he say something at the August meeting to protect president Burger?
During the meeting, when president Burger illegally did not allow me to raise an objection under the Sunshine Act, I paused and calculated the odds of the meeting going virtual and decided that it was probably not going to happen before the first public comment period. I therefore stopped raising the objection at that time and waited for that comment period.
I had no legal obligation to do so. It was purely an act of civility. I want to point out that that comment period was not for general comments and still would be what president Burger would have considered being out of order.
Whether or not the school board thinks that my objection under the Sunshine Act is valid or not is irrelevant to the law. I have a complete and absolute legal right to make that objection.
I want to make it quite clear for reasons that I will enumerate below that I strongly believe that virtual meetings are no longer allowed. I will therefore object to the threat of such a virtual meeting at any future board or committee meeting. I will insist to the point of being forcibly removed from any future meeting if necessary and seek remedy in the courts if I am not allowed to object as is my right under the law.
I would appreciate a public apology from the school board for denying me my legal rights at the August school board meeting.
Virtual Meetings
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The legal basis given at the last school board meeting for allowing virtual meetings was very weak and the school board is out on a very weak legal branch.
I will actually start by demonstrating that my view is the shared public view of many law firms that any search on Google will make clear.
CGA Law Firm
https://www.cgalaw.com/fully-virtual-meetings-by-government-entities-no-longer-permitted/
Pennsylvania COVID-19 Emergency Disaster Declaration Officially Ended June 16, 2021
The passing of Act 15 of 2020 in April 2020 has allowed local governments to conduct public meetings virtually during the Governor’s COVID-19 emergency disaster declaration. Due to the recent certification of the election results, in which the ballot questions effectively amended the Pennsylvania Constitution, and the passing of House Resolution 106, the Governor’s COVID-19 emergency disaster declaration officially ended as of June 16, 2021.
It is important to note that Act 21 of 2021, signed on June 11, 2021, which extended until September 30, 2021, many of the suspensions to regulatory statutes and orders, rules, or regulations put in place as part of the COVID-19 disaster declaration, does not affect Act 15 of 2020. This is because Act 15 of 2020 was an act of the legislature, and therefore not extended by Act 21 of 2021.
Fully virtual meetings are no longer permitted by law.
Municipalities and other local government entities will now need to go back to their meeting procedures before the COVID-19 emergency disaster declaration, unless the legislature amends Act 15 of 2020 or takes other action that allows for the return of public meetings in a fully virtual setting.
Meeting procedure requirements prior to the disaster declaration are provided for in most cases by each local government code. As a result, some local government bodies are allowed to conduct hybrid meetings while others are not. For a hybrid meeting, there must be a physical meeting location and there may be a virtual participation option, this will allow the public and local government officials to participate either in-person or virtually. As a reminder, the Sunshine Act requires a physical meeting location for public participation, but it also permits virtual participation by local government officials.
Stock and Leader Attorneys at Law
https://www.stockandleader.com/government-law/the-sunshine-law-virtual-meetings-and-public-comment-in-a-post-shutdown-world
On June 19, 2021 Governor Tom Wolf’s Amendment to Proclamation of Disaster Emergency—Coronavirus (COVID-19) was terminated by concurrent resolution of the General Assembly. So, what does this mean? The Emergency Declaration is over. You may also find yourself asking, “Well, what does this mean for school boards?” This termination of the Emergency Declaration means that school boards should, in fact, be meeting in-person and ensuring that their school district’s websites are updated to indicate that they will receive community members in-person and/or still have a virtual viewing available.
Just for clarification, school districts are one of the six types of local governments under the Pennsylvania State Constitution.
What I did not find was one single law firm willing to publicly state on their website that school districts have always been allowed to have virtual meetings before Act 15 of 2020 and therefore are allowed to have them now.
The Sunshine Act does not stand alone. It is used in combination with the other statutes. In the case of school boards, that means the Public School Code of 1949 which states
https://www.legis.state.pa.us/WU01/LI/LI/US/HTM/1949/0/0014..HTM
ARTICLE IV. ORGANIZATION MEETINGS AND OFFICERS OF BOARDS OF SCHOOL DIRECTORS.
(b) Meetings.
Section 421. Times and Places.–Each board of school directors in this Commonwealth shall have specified times and places at which it shall hold its meetings, and shall during the school term meet at least once every two months. The meetings for organization, and meetings provided for by any board of school directors at stated times at which such board is required to meet, or any adjournment thereof, shall be called “regular meetings,” and all other meetings shall be called “special meetings.”
Please notice the “specified times and places” clause. The place obviously means a physical place. If you want to argue in court that place can be virtual, think about what you are asking a judge to rule – when place, location, or address is mentioned in any statute, it can mean a virtual one. That would mean that when you are asked for your address on a drivers license application, you can list and email address. When an LLC is asked for a location for legal notices to be sent, you could give a website location. I highly doubt any judge would go down that path.
You are also going to have to explain to a judge how you are going to allow for the public to make objections to the Sunshine Act during the meeting if you have the public muted during the meeting.
In short, you are really going out on a very shaky limb here in what is quite unlikely to win in court. If the law firm of Wisler Pearlstine really believes strongly in their case, have them make a public statement to that fact on their website similar to the other law firms that are saying the exact opposite. The law firm of Wisler Pearlstine has a history of saying things that are questionable. Think Lower Merion losing in court and being chastised by the state auditor general for budgeting practices. Think them sending in someone to lie to the board on auditing practice during which the public called out the lies and the board (with one exception) completely bought into those lies (although some eventually understood them). If Wisler Pearlstine is not willling to put their public reputation on the line for this legal analysis, then why should you put your reputations on the line?
I would like to also point out the ridiculousness of the argument that Act 15 was only to allow very certain entities at the municipal level to go virtual.
https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2020&sessInd=0&act=15
SUBCHAPTER E LOCAL GOVERNMENT MEETINGS
Sec. 5741. Response to COVID-19 disaster emergency.
(a) Authorization.–An agency, department, authority, commission, board, council, governing body or other entity of a political subdivision included in a declaration of disaster emergency as specified under section 7501(d) (relating to general authority of political subdivisions) may conduct hearings, meetings, proceedings or other business through the use of an authorized telecommunications device until the expiration or termination of the COVID-19 disaster emergency.
Please notice the long list of entities. For clarification, school districts are an agency of a political subdivision. It should be obvious that Act 15 was not written just for some quasi-governmental municipal entities. Also notice that virtual meetings are considered a “telecommunications device,” not an alternative location or place. Please try to let that sink in.
I would strongly urge the school board not to follow the legal advice of Wisler Pearlstine unless they are willing to publicly state their argument. Other firms have publicly stated the opposite. I have not found one firm that has publicly stated what Wisler Pearlstine is arguing.
I would also point out that Pennsylvania School Board Association (PSBA) was mentioned as signing off on this. Besides the fact that they don’t give legal advice, I couldn’t find anything on their website advocating that purely virtual meetings are allowed. They have public notices and guidance dealing with virtual meetings under Act 15, but nothing after Act 15 expired. If they strongly believe that virtual meetings are still allowed and have always been allowed, why don’t they say as such publicly?
Committee Meetings
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I find it shocking that Ken Roos thinks that committee meetings are not covered by the Sunshine Act.
As most of the board members are kept in the dark and therefore didn’t see this email exchange, here is a part of the email exchange I sent to Ken Roos, Michele Burger, and Dr. Gusick back in May I addressed to Ken:
In regards to the public speaking, yes, I am referring to the committee meetings. I am going to have to disagree with your legal analysis on allowing the public to speak at those meetings. It is quite clear that those meetings at a minimum render advice and therefore are under the purview of the Sunshine Act. I guess we well see who is right the next time a member of the public is cut off during one of those meetings and not allowed to speak.
From the official PA Gov website
https://www.openrecords.pa.gov/SunshineAct.cfm
Which agencies are subject to the Sunshine Act?
Any state or local government body and all sub-units appointed by that body that perform an essential government function and exercises authority to take official action or render advice. It can include boards, councils, authorities, commissions, and committees.
The Sunshine Act defines an “agency” as the “body and all committees thereof that are authorized to render advice or take official action” on behalf of the governing body.
Those are the Office of Open Records words, not mine.
I truly fail to see how your interpretation is valid. As a matter of fact, this is a ridiculous analysis as that means that all committee meetings could be held in private with no notice as you are claiming that it is not covered by the Sunshine Act. I would strongly recommend that you take a second look at that.
Here is the actual code using the same kind of language as the Office of Open Records
https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/65/65.HTM
Title 65: Public Officers, Part II: Accontability, Chapter 7. Open Meetings
§ 702. Legislative findings and declaration.
“Agency.” The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following: the General Assembly, the executive branch of the government of this Commonwealth, including the Governor’s Cabinet when meeting on official policymaking business, any board, council, authority or commission of the Commonwealth or of any political subdivision of the Commonwealth or any State, municipal, township or school authority, school board, school governing body, commission, the boards of trustees of all State-aided colleges and universities, the councils of trustees of all State-owned colleges and universities, the boards of trustees of all State-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and through the joint action of its members exercises governmental authority and takes official action. The term shall include the governing board of any nonprofit corporation which by a mutually binding legal written agreement with a community college or State-aided, State-owned or State-related institution of higher education is granted legally enforceable supervisory and advisory powers regarding the degree programs of the institution of higher education. The term does not include a caucus or a meeting of an ethics committee created under rules of the Senate or House of Representatives.
Perhaps your false interpretation is why the school board feels fine with cutting off people during committee meetings. A nice public debate on the matter might be good for the soul and education of multiple people.
I just have to say that the Sunshine Act is beyond clear that committees are covered by it. Therefore, the committee chairs are not allowed to disallow people to speak because the board already read something, because the board wasn’t sent something to them in advance, etc.
Meetings Covered by Sunshine Act
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I would like to educate the school board a little bit on what is covered and not covered by the Sunshine Act.
Both board meetings and committee meetings are both covered as long as there is deliberation and/or action on behalf of the board. What matters is not whether or not it is a full board or committee meeting, what matters is what happens at that meeting.
Art McDonnell was close to being right in that the budget workshop school board meetings were not covered by the Sunshine Act. If the board allowed the administration to do their dog and pony show for the budgets and didn’t make any comments about the content during that meeting, what they wanted to accomplish, etc, those meetings would fall under purely educational meetings and would not be covered by the Sunshine Act even though it is a full school board meeting. However, school board members do regularly comment during those meetings about what they would like to see, what they want the administration to do, etc. This deliberation is what makes it covered by the Sunshine Act.
One the other hand, your committees are deliberating on behalf of the school board in regards to language for policy, numbers for budgets, etc. This deliberation, debate, and votes are what make them covered by the Sunshine Act. It is obvious that the committees are doing the deliberation on behalf of the school board as shown by the fact that many things come out of committee and are approved by consent agenda without deliberation at the full board meetings as all the deliberations and votes are already done at the committee level.
This is actually quite clear and I do not understand why Ken Roos doesn’t understand this as well. I think that the board should really get a second outside legal opinion on this one. Then again, I refer to my previous comment that Ken Roos tends to find reasons to limit the public even when the law does not allow for it.
Agendas
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Ken Roos correctly stated in our email exchange that agendas are not required by the Sunshine Act. He did, however, completely ignore that it is district policy to have them.
What you should know is that Governor Wolf just recently signed legislation into law amending the Sunshine Act that now requires the publishing of agendas at least 24 hours in advance of a public meeting.
This should not impact the school board as you already have the above mentioned policy already. I do want the board to understand that this is now a new requirement under the Sunshine Act and therefore required by law.
Conclusion
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In regards to the Sunshine Act and other legal opinions given to the board, please start to read the language in the various statutes and do your own Googling. Everything I mentioned above is pretty clearly laid out and explained if you spend some time doing the research.
Stop completely relying on Ken Roos and Wisler Pearlstine as I am really tired of the willful ignorance from the school board by the continued attitude that the public can’t possibly understand anything.
Get better legal representation. Ask Ken Roos why he didn’t speak out to protect president Burger at the last board meeting so that she didn’t violate the law. If he claims that was not a violation of the Sunshine Act, compare how his response aligns with the very explicit language of the Sunshine Act. Push back. Don’t accept answers that don’t make sense.
The public deserves better.
It would be nice if the school board would actually be able to have a Courageous Conversation about this and other issues after spending between a quarter of a million and half a million dollars on training for having courageous conversations. Unfortunately, I expect the same response as I normally get – silence.
Sincerely,
Doug Anestad
I agree with Pattye that the very small number people were repeatedly disruptive and swearing should have been escorted out. Instead, what we got were lots and lots of empty threats from president Burger about what the board was going to do with no follow through. Anyone who has been a parent should know how bad a tactic that is.
I have less of a stomach than Pattye does for the disruptions and left long before her.
For those who didn’t go to the meeting but want to understand what watching that felt like, you can an idea here:
https://www.youtube.com/watch?v=j3y720TpPaA
As many others, I left the meeting after the comments. I have sent emails to the school board and admin and receive no response. Questions were not answered at the board meeting. It will be curious to see what they edit out from the comments as most were civil.
One comment I found interesting was made by a resident wearing scrubs who mentioned the ventilation system in the ceiling above us. The ceiling was awful, ventilating panels were not fully secured in some places and there was significant dirt. Everyone looked at the ceiling yet there was no response from the school board. Isn’t proper ventilation one of the big issues with covid?
Thank you for reminder about the ceiling. I admit that until the resident mentioned the ventilation system on the ceiling, I had not noticed it. Your description of the ceiling accurate, it was really bad. I recall that the ventilation systems in the buildings were to be tested, reviewed, cleaned or whatever they needed to do before opening the schools. I sure hope that the auditorium ceiling at VFMS is not indicative of all buildings and classrooms. A response was needed from the school board and/or administration regarding the issue.
BTW, the board did not say why the school board meeting was moved from CHS to VFMS — does anyone know why or if the change is permanent.
I think this is a decent write-up Pattye, but I do have a bit of an issue with this bit: “Although many of those who spoke were respectful and measured in their remarks (both supporting and opposing the mandate), there were some over-the-top residents who choose to yell and use inappropriate language when sharing their stance on a mask mandate.”
I agree wholeheartedly that there with both pro and anti mask speakers who were respectful and and measured in their statements. However, those who were not respectful and measured were contained on the side of anti mask. There was no disruptive behavior from anyone pro mask and I think that is an important message to send. The only uncivilized and coarse behavior were those who don’t want to do anything they may not agree with.
I am so sick and tired of people who feel they can invoke their own personal beliefs on others! Here it is the covid virus is and has been on the rise due to those who do not believe in the science. Well that is your right but you DO NOT have the right to subject others to a possible death sentence! Unbelievable the arrogance of some people!! There is so much more I can and want to say, but my mother taught me to not say anything if you do not have anything nice to say!
As one who works with children, I will say this Your children are watching you and taking in every divisive, disrespectful arrogant action you portray! And we wonder why a lot of today’s children are so rude and disrespectful!
Kevin, I will assume that this comment is not directed at me personally. If it was, please see my personal note regarding my daughter and my viewpoint on COVID vaccines and mask-wearing at the end of my post.
So after all this massive debate that school boards throughout the state had to put up with, now Governor Wolf decides to mandate masks across all of Pennsylvania.
Talk about poor timing.
https://6abc.com/pa-covid-19-face-masks-back-to-school-mask-mandate/10990327/
For those that were unable to attend and that may be interested, the last school board meeting is now available – according to the District, the editing of profane comments by audience members caused the delay.
https://www.youtube.com/watch?v=hVDlsZCinm0&ab_channel=TredyffrinEasttownSD
This comment is for Pattye:
I understand you support mask-wearing because of your surgeon daughter. I am no surgeon but happen to work for one. And I know surgeons do not wear masks over their fact 7-8 hours straight a day, every day. They have nice private office, and they take off their masks inside their nice private office, and they are in their nice office for not so small chucks of their days.
Our kids have to be under masks 8 hours straight a day (except lunch time). Your comparison to get to your reason of pro-masking is not fair at all.
To be clear – I NEVER said my daughter wears a mask 8 hours a day. Here are my exact words:
On a personal note, our only child is a high-risk OBGYN fertility surgeon at the University of Washington at Seattle (yes, the hospital where the first known COVID patients arrived in late February 2020). Lyndsey has delivered high-risk babies (many to Moms with COVID) while wearing a full hazmat uniform for the last eighteen months. I support vaccines, mask wearing and anything else that science deems may possibly help rid the world of COVID.
And I will reiterate, I Support vaccines, mask wearing and anything else that science deems may possibly help rid the world of COVID.