SYKESVILLE — Sykesville Borough posted notice of a recent special borough council meeting at the borough building, but didn’t advertise it, as required by the Sunshine Act, in a newspaper of general circulation.
The action has left a question mark over the implications for the business conducted during the Nov. 24 meeting. At the meeting, the borough advertised the 2018 proposed budget.
While borough officials contend that they complied with the Sunshine Act in advertising the special meeting by only posting it at the borough building, a state official and an attorney with the Pennsylvania News Media Association disagree.
Erik Arneson, executive director of the Pennsylvania Office of Open Records, said that the special meeting had to be both posted at the meeting place and advertised in the newspaper.
“For a special or rescheduled public meeting, agencies must provide at least 24 hours advance notice, with the notice printed in a newspaper of general circulation and posted at the location where the meeting is to take place,” he said, when asked for comment.
Created Jan. 1, 2009, the Office of Open Records is a state agency of the Commonwealth of Pennsylvania. It decides appeals that are filed under the Right to Know Law, and provides training about the Right to Know Law and the Sunshine Act.
Arneson’s comments were echoed by Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association.
She said, “just posting is not legally sufficient.
“The Sunshine Act requires public notice of the date, time and location of the meeting at least 24 hours in advance,” she said. She specified that “public notice” means a legal ad in a newspaper of general circulation.
“Improperly advertised meetings open the agency to potential liability and the lack of notice creates a significant barrier to access,” she said.
Arneson said the failure to advertise the special meeting in a newspaper of general circulation would not automatically make the action taken at the meeting null and void, however.
“There would have to be some sort of court finding,” he said.
However, he said there is a solution.
“Courts have held that any action taken by an agency which was not proper under the Sunshine Act can be remedied by taking the same action properly at a subsequent meeting,” he said.
Melewsky said enforcement is in the hands of the public.
“The Sunshine Act is a citizen-enforced law, so if no one files a complaint (civil or criminal), nothing happens from a legal perspective,” she said. “There’s no government agency that oversees Sunshine Act compliance; it’s up to the public.
“If someone files a complaint, and a court finds a violation occurred, the court could invalidate any action taken at the meeting or fashion other remedies like an injunction or fines,” she added.
When asked for comment, borough council solicitor C.J. Zwick said the borough “very thoroughly complied with the notice requirements of the Sunshine Act.”
He said the Open Meetings Law, or Sunshine Act, defines “public notice” of a meeting as, among other things, posting “a notice of the place, date and time of a meeting prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held.”
He said “the public notice of the Nov. 24, 2017, special meeting was prominently displayed, in a very conspicuous manner, at the borough office” all week leading up to the meeting.
Melewsky disagreed with Zwick’s reading of the law.
“The solicitor is incorrect and his interpretation ignores the plain language of the statute, the rules of statutory construction and the advice of the OOR (Office of Open Records)...” she said.
“The law, section 709, requires ‘public notice’ of all regular and special meetings,” she said. “Section 703 defines ‘public notice’ for regular and special meetings as publication, posting, and notice by mail to specific parties under 709c. The law requires publication AND posting for regular and special meetings. It does not allow agencies discretion to choose between them.”
Melewsky added that public notice for other types of meetings, recessed and reconvened meetings, under section 703, does allow for posting only, without additional publication.
“The solicitor’s opinion ignores the purpose of public notice, the different definitions of public notice, and the distinction the Act draws between regular/special meetings and recessed meetings,” she said. “If the General Assembly intended to allow only posting for special (or regular) meetings, they would have said so. They did not. Moreover, if the solicitor’s position were correct, there would be no need for separate definition of public notice for recessed meetings, which require only posting, and that interpretation would render the vast majority of the Act’s definition of public notice meaningless. This is basic statutory construction and the agency’s position in this case borders on bad faith.”
“As this meeting was a special meeting, not a recessed and reconvened meeting, it required publication AND posting in accordance with sections 709 and 703.”
Arneson, meanwhile, said he “respectfully” disagrees with Zwick.
When asked for comment, council vice president Jim Strouse agreed with Zwick’s position.
“It has to be posted on the front of the borough building, that was it,” he said.
He noted that the borough was facing a time issue. He said the decision to hold the special meeting on Friday was made at council’s regular meeting on Monday of that week.
He noted that the Courier-Express didn’t publish on Thanksgiving Day that week. He didn’t think that the borough would have been able to get the notice in the paper, as a result.
When asked, the classified department of the Courier-Express noted that while the newspaper didn’t publish a Thursday paper, there was still a paper published on Wednesday and it was accepting ads on Tuesday morning.