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Open Meetings, Right to Know, and Conflicts of Interest

Questions about the fairness of the contract negotiation process with a school district or school board are common - what matters must be discussed in open meetings, what information am I entitled to receive, and what can be done to reconcile a board member’s conflict of interest? This note will briefly discuss the Pennsylvania statues that deal with open meetings, the right to information, and the ethical issue of conflicts of interest.

Open Meetings – The Pennsylvania Sunshine Act

Pennsylvania’s Sunshine Act, 65 Pa.C.S. §701, et seq, was enacted in 1998 to assure the right to attend and comment at public agency meetings (including school boards), 65 PaC.S. §710.1,702. Under the Sunshine Act, all official action and deliberation of a public agency must be done in an open meeting unless the subject of the meeting is properly excepted by 65 Pa.C.S.A. § 707 or 708 relating to certain conferences, working sessions, or executive sessions about employment matters, labor relations, the purchase or lease of real estate, discussions of litigated matters, matters restricted by valid privilege or confidentiality, and certain matters of academic admission or standings. Any business transacted in an unauthorized meeting is considered void and can be challenged in civil and criminal court within 30 days of the discovery of the action but not later than one year after the action. 65 Pa.C.S. §713. Penalties include injunction prohibiting the action, an individual fine of up to $100 on the offending agency member (a summary offense) and the agency itself can be forced to reimburse the attorney’s fees and costs of the successful challenger. 65 Pa.C.S. §714,714.1. However, be aware that the same section of the law also states that anyone who files a frivolous or unsubstantiated challenge could also be held liable for the attorney’s fees incurred by the school district. Finally, it should also be noted that a decision made in an unauthorized meeting can be cured or ratified by holding a vote after the fact in an authorized and open meeting. Ass'n of City Mgmt. & Prof'l Emples. v. Civil Serv. Comm'n of Phila., 15 Phila. 485 (Pa. C.P. 1987), Mateer v. Swissvale, 335 Pa. 345, 353 (Pa. 1939).

Right to Information – The Pennsylvania Right to Know Law

Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq, creates a statutory presumption that a record in the possession of a Commonwealth agency or local agency is a public record that should be freely available. This means that the agency must prove that their refusal to produce a requested record is validly supported by an exception under 65 P.S. § 67.708 or some other privilege. 65 P.S. § 67.305. A written request for access to records may be submitted to the agency in person, by mail, by e-mail, or by facsimile to the open-records officer of the agency. The written request should identify or describe the records sought along with a “reply to” address. A written request need not include any explanation of the requester's reason for the request and need not include the intended use of the records. The request can also be made anonymously through counsel. 65 P.S. § 67.703. The agency is not required to create records which do not currently exist and is not required to compile, maintain, format or organize records in a specific manner. 65 P.S. § 67.705. Generally, the agency must respond within five days or face appeal to the Pennsylvania Office of Open Records That office can compel production of the records. The appeal must be filed within fifteen days of the agency’s denial of the request. 65 Pa.C.S. §67.1101.

If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was denied, the court may award attorney fees and court costs to the requester. But the court may also award attorney fees and court costs to the prevailing party if the court finds that the legal challenge was frivolous. 65 P.S. § 67.1304. The court may also award a civil penalty of up to $1,500 if an agency denied access to a public record in bad faith and up to $500 per day until the public records are provided. 65 P.S. § 67.1305. The Right to Know Law 65 P.S. § 67.1701 also requires agencies to file a copy of all contracts in excess of $5,000 with the Treasury Department within ten days after the contract is fully executed. The contracts or a summary of their content are then available for public inspection on the Treasury Department's website at 65 P.S. § 67.1702

Eliminating Conflicts of Interest – Pennsylvania Public Official and Employee Ethics Act

The Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101, et seq., established the Pennsylvania State Ethics Commission,, as an independent state agency charged with the responsibility of enforcing the Ethics Act. The Ethics Act applies to public officials and public employees and some sections apply to candidates and nominees for public office. The Ethics Commission's responsibilities include rendering advisory opinions, enforcement and investigation of alleged violations, and issuing binding decisions, fines, and rulings.

If the contracting person or entity is associated with a public official or public employee or the spouse or child of same, the Act requires that any such contract in excess of $500 must be awarded in a public and open process that includes prior public notice and disclosure of all proposals considered and contracts awarded. The Act further states that if such a contract is awarded, the public official or public employee associated with the contracting person or entity shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103.

The Act also states that any public official or public employee, who in the discharge of their official duties would be required to vote on a matter that would result in a conflict of interest, shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of their interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken. 65 Pa.C.S. § 1103. Official complaints about ethics violations can be easily filed, within five years of the occurrence, with the State Ethics Commission by using the simple form found on their website. 65 Pa.C.S. § 1108. The penalties for violations are severe. Any person who violates the provisions of section 1103(a), (b) and (c) relating to restricted activities commits a felony and shall, upon conviction, be sentenced to pay a fine of up to $10,000, serve up to five years in prison, or both. 65 Pa.C.S. § 1109. But be aware that the penalties for filing frivolous or unfounded complaints are equally severe and include damages for defamation, attorney fees, financial loss, emotional distress, and punitive damages against the filer. 65 Pa.C.S. § 1110.

As you can see, Pennsylvania has powerful laws intended to assure open meetings, the right to information, and avoidance of conflicts of interest.

If you have questions about this article or any legal matters contact RC Kelly Law. 
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