In the past year that Jayne Buchwach has attended Harrisburg School Board meetings, she’s noticed that they follow a reliable pattern.

District residents like Buchwach file into the Lincoln School auditorium and wait, sometimes for up to half an hour, for the board directors to exit their executive session.

School board minutes show that the board has convened 11 executive sessions since July 2017, where they discussed district personnel, real estate transactions, and other business out of view of the public. These closed-door sessions, which are permissible in certain circumstances under state law, occurred before almost every public board meeting and sometimes in the weeks between them.

“It’s like a secret society,” Buchwach said. “I’m suspicious because it makes me wonder what they don’t want us to know.”

Board secretary Carol Kaufman confirmed that the most recent executive session occurred on Monday, May 14. The board publicly announced the other 10 sessions, often summarizing the content of their private talks with vague, one-word descriptions—they met to discuss “personnel,” “legal matters, “negotiations,” “real-estate,” or “business operations.”

Buchwach understands the board’s right to call executive sessions, but she said she’s doubtful that they are always discussing executive issues.

“Barring any violation of something like HIPPA or other privacy laws, everything should be put on the table as part of public discussion,” she said.

Experts in public access laws agree that the board’s use of executive session raises concerns about its compliance with the state Sunshine Act, which requires public bodies to hold all deliberations and votes in view of the public, with few exceptions.

Craig Staudenmaier, general counsel for the Pennsylvania Freedom of Information Coalition, said that there is no rule as to how often a board can meet privately. But, he said, “It’s interesting that the board would always have a reason to go into executive session.”

“It does seem like a lot in a short period of time,” he said.

Another expert said the board must offer the public more detailed explanations for its private meetings.

“They need to provide real, discrete reasons why the public is being excluded from their discussions,” said Melissa Melewsky, a media law counsel for the Pennsylvania NewsMedia Association. “Their one-word answers do not enable any kind of challenge from the public.”

Melewsky said the board could easily provide more details without betraying any confidential information.

Instead of announcing an executive session to discuss “personnel,” for example, “the board could say, ‘we are conducting performance reviews’ or ‘we are going to address a complaint against an employee,’” Melewsky said.

“There is nothing confidential about the fact that those things are taking place,” she added. “There’s a big difference between opening themselves up to liability and transparency, but they need to err on the side of transparency because that’s what the law requires.”

Exceptions exist, but they are limited.
Certain topics exempt from the Sunshine Act may be discussed privately. But those exemptions are limited, Melewsky said, and often exploited, wittingly or unwittingly, by elected officials.

For instance, board members can discuss real estate transactions in private, but only if they are purchasing or leasing a property. The real estate exemption does not apply to discussions about the sale of a property.

The board held an executive session in December to discuss “the sale of a property at 236 Cameron Street,” according to meeting minutes. Under the Sunshine Law, that discussion should have taken place publicly, Staudenmaier and Melewsky confirmed.

Staudenmaier and Melewsky both said that the board also must be more forthcoming about their discussions of litigation.

Sunshine Law allows the board to discuss legal strategy in private, but it requires them to publicly announce the name of the complainant, as well as the docket number and location of the court, for any case in litigation.

The board did not disclose any of those details on Aug. 21, when then-President Danielle Robinson announced an executive session that included “litigation updates.”

Those requirements also could apply to the board’s discussions of tax assessment appeals, which took place at four executive sessions between July and September 2017. If the board is considering an appeal that was filed in court, Melewsky said, it is discussing a litigation matter and must publicly announce the party names, docket number and the court location.

Other topics that the board discussed in a March executive session – “school safety” and “trash collection” – may not have fallen under any Sunshine Law exemption.

“There’s nothing that allows either one of those discussions to happen behind closed doors,” Melewksy said, adding that there might be “a little more flexibility” for a school safety discussion if it included information about security personnel.

Board president Judd Pittman said today that the discussion about trash collection consisted of an update from the district legal team about trash collection negotiations with the city. He could not recall the details of the school safety discussion.

As the board’s presiding officer, Pittman said he calls executive session at the advice of the board solicitor, Samuel Cooper.

Cooper did not respond to calls for comment on this story.

Pittman said he was not aware of any potential prior violations of the Sunshine Law. He said that the board does not ever deliberate in executive session, and often uses the time to receive information about legal issues and personnel.

Pittman added that he favors transparency and would be more forthcoming with details about executive sessions in the future.

“I am more than willing to provide as much information as we are legally capable of about our sessions,” Pittman said. “I’m not opposed to the public having as much information as they can.”

Violating the Sunshine Act is a summary offense that can carry a fine up to $1,000. However, a conviction requires proof of intent to violate the law, Staudenmaier said, which makes them very rare.

He and Melewsky agree that most Sunshine Law violations arise from misinformation and lack of education about the law, not a will to disobey it.

The Pennsylvania School Board Association offers free training for new school board directors that includes a two-hour legal seminar, according to PSBA counsel Stuart Knade. He estimated that fewer than 30 percent of new board members take advantage of the trainings.

Other state agencies, such as the Office of Open Records and the Township Supervisors Association, also offer trainings on the Sunshine Law and Right to Know Law.

Discussions in the Dark