Why an Idiot Should Sue When Pa.'s Sunshine Act is Violated

I'm an idiot. There's just no getting around it. Once again, I've sued a local government over a perceived injustice. I've done it before. If I could take some kind of pills that would keep me from doing it, I'd be popping them now. Too late. I've sued Nazareth Borough Council over its practice of using committees to make decisions behind closed doors.

I've sued Northampton County several times. I've even won a few. But believe me when I tell you it's not much fun, and I'm not really happy about it.

First, I'm no zillionaire, and am usually only a half-step ahead of bill collectors. I'd rather spend what little money I have going to a foreign movie or Wegmans and pretending I'm one of the artsy-fartsy types. Litigation costs money, even when you do it yourself, and you don't get it back.

Second, no matter how convinced I am that I must be right, some guy in a black dress could be equally convinced I'm full of shit, especially if he reads the nice things I say about judges on this blog. Judges usually don't like people who take shots at them or local governments. They're funny that way.

Third, every time I sue a local government, I have to brace myself for the inevitable personal attacks that follow. Local pols are good at that. Now, I'm suing over a Sunshine Act violation, right? What I'll be hearing, and probably reading, is that I'm an alcoholic ex-lawyer who files frivolous suits. I'll be marginalized as a wingnut. That's standard these days. Will they say anything about my Chippendale auditions? Will they utter a word about my kazoo solos? I think not. Instead they'll be moaning about "wasting" government money to defend a lawsuit that cost them nothing with an attorney who's paid a salary.

The final indignity, at least under the Sunshine Act, is that a citizen who falls on his face can get tagged with the government's attorney fees and costs of litigation. If this happens, they'll just have to stand in line like everyone else. Even vampires can't suck blood out of a stone.

Take a number!.

Now that I've explained why only idiots sue their local governments, let me explain why this idiot did just that. Government by litigation is infinitely preferable to government behind closed doors. That's it in a nutshell.

"Democracies die behind closed doors. A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the framers of our Constitution." But then again, I'm an idiot.

A copy of the complaint is below.

COMPLAINT

Plaintiff petitions this Court for equitable and declaratory relief under the statutory provisions of Pennsylvania's Sunshine Act, 65 Pa.C. S. §701-716. Defendant, as the legislative body of NAZARETH BOROUGH, did violate the provisions of the Act by a series of back room committee hearings occurring from the year 2000 to the filing of this instant complaint. Plaintiff requests that this Court find that the Defendant violated the provisions of the Sunshine Act through Council committee meetings, in which a nonpublic decision was made to relocate the Nazareth government center from its current location to Nazareth Hall Park. This Court is asked to nullify that decision and to direct Nazareth Borough Council that all committee hearings must be conducted in accordance with the Sunshine Act.

JURISDICTION

1. Jurisdiction in this Court is invoked under 42 Pa.C.S. §931 (general jurisdiction) and under 65 Pa.C.S. §701 et seq. (specific jurisdiction under Sunshine Act provisions).

2. Venue in this Court is proper under the provisions of Pa.R.Civ.Proc. 1006, since all activities and transactions that are the foundation of this complaint occurred in Northampton County.

PARTIES

3. Plaintiff, BERNARD V. O'HARE III, is an adult individual who resides at XX XXXXX XXXX Street, Nazareth, PA 18064 and is therefore, a resident of Nazareth Borough.

4. Defendant, NAZARETH BOROUGH COUNCIL, is the governing body of NAZARETH BOROUGH, consisting of nine elected Council members, and is an "agency" as that term is defined in Section 3 of the Sunshine Act, 65 Pa.C.S. Section 703. Its offices are located at 30 Belvidere Street, Nazareth, Pa 18064.

CAUSE OF ACTION

5. During a meeting of Nazareth Borough Council on July 10, 2006, a number of Council members stated that the Sunshine Act [65 Pa.C.S. Section 701 et seq.] only pertains when a quorum of Council is present.

6. During this meeting, Nazareth Borough Solicitor Alfred Pierce, Esq., acknowledged that a number of Council committees routinely met without the public notice or advertising required by the Sunshine Act.

7. During this meeting, Nazareth Borough Council members acknowledged that two committees had met behind closed doors to decide on a municipal building expansion, and ultimately merged into a single committee that in April 20006 authorized an architect to prepare plans for a new government center at Nazareth Hall Park.

8. Because these meetings were not open to the public, the exact times and dates of these meetings are unknown to Plaintiff. But a member of Nazareth Borough Council, on August 7, 2006, acknowledged that these committees and combination of committees had spent "hundreds of hours" before deciding upon relocating the Nazareth government center to Nazareth Hall Park.

9. Although three members of Defendant Council knew nothing of these plans until May 2006, it is averred that the remaining six members of Council, a quorum, demonstrated prior knowledge and assent to the proposed relocation of the municipal center.

10. Nazareth Borough Council is an "agency" as that term is defined by Sunshine Act, 65 Pa.C.S. Section 701 et seq.

11. The Council committees that considered the relocation and authorized architectural plans for a new government center at Nazareth Hall Park took official action and rendered advice on agency business. Accordingly, these committees are also agencies as that term is defined by the Sunshine Act, 65 Pa.C.S. Section 701 et seq.

12. Defendant, Nazareth Borough Council, has engaged in a pattern of using council committees that meet without public advertising or notice to decide matters of public importance.

13. This pattern extends from the current date back to at least March 2000, when Nazareth Borough Council committees met secretly to decide on the relocation of a civil war canon at Nazareth's circle.

14. During the period between March 2000 and the present, Nazareth Borough Council members have demonstrated antipathy towards the Sunshine Act, as evidenced by the following actions and remarks:
a) Councilman Stoudt, in April 2000, cancelled a police committee hearing simply because two reporters desired to attend the meeting, and later said he would hold his meeting by telephone.
b) On July 14, 2006, Councilman Stoudt informed a reporter that nothing would get done "if officials had to alert the public every time a couple of them got together."
c) Councilman Davis, as recently as August 7, 2006, told the public they can't expect to have "big public meetings all the time."

15. Defendant, NAZARETH BOROUGH COUNCIL's practice of designating committees for nonpublic determinations of the people's business between March 2000 and this date, contravenes Section 2 of the Sunshine Act, which provides that "the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies is vital to the enhancement and proper functioning of the democratic process and that 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." 65 Pa.C.S. Section 702(a).

16. Defendant, NAZARETH BOROUGH COUNCIL's practice of designating committees for nonpublic determinations of the people's business between March 2000 and this date, contravenes the public policy of the Commonwealth "to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in [the Sunshine Act]." 65 Pa.C.S. Section 702(b).

17. Defendant, NAZARETH BOROUGH COUNCIL's practice of designating committees for nonpublic determinations of the people's business between March 2000 and this date, did violate the Sunshine Act for the following reasons:

A) Section 4 of the Sunshine Act [65 Pa.C.S. Section 704] requires that official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public, but the official action and deliberations by NAZARETH BOROUGH COUNCIL'S committees considering a municipal center relocation, were conducted in secret.

B) Section 5 of the Sunshine Act [65 Pa.C.S. Section 705] requires that, in "all meetings of agencies, the vote of each member who actually votes on any resolution, rule, order, regulation, ordinance or the setting of official policy must be publicly cast and, in the case of roll call votes, recorded." During the nonpublic meetings of the NAZARETH BOROUGH COUNCIL committees contemplating a municipal center relocation, no vote was publicly cast or publicly recorded.

C) Section 6 of the Sunshine Act [65 Pa.C.S. Section 706] mandates there be written minutes of all open meetings of agencies, but no such minutes were maintained with respect to the meetings conducted by these NAZARETH BOROUGH COUNCIL committees contemplating a municipal center relocation.

D) Section 9 of the Sunshine Act [65 Pa.C.S. Section 709] requires there be public notice of any meetings of a Nazareth Borough Council committee authorized to take official action or make recommendations about agency business, but none of these public notice requirements were followed with respect to the NAZARETH BOROUGH COUNCIL committees contemplating a municipal center relocation.

E) Section 10.1 of the Sunshine Act [65 Pa.C.S. Section 710.1] requires that there be reasonable opportunity for public comment by residents or taxpayers on matters of concern, official action or deliberation which are or may be before the council, but no public comment by residents or taxpayers was permitted with respect to the NAZARETH BOROUGH COUNCIL committees contemplating a municipal center relocation.

WHEREFORE, Plaintiff respectfully requests the following relief:

A) That this Court render a Declaratory Judgment that Defendant, NAZARETH BOROUGH COUNCIL, has engaged in a pattern of using council committees to obviate the requirements of the Sunshine Act, 65 Pa.C.S. Section 701 et seq.

B) That this Court order and direct Defendant, NAZARETH BOROUGH COUNCIL, that it must conduct all council committee hearings by providing advertising, notice to the public, and by complying in all other respects with the requirements of the Sunshine Act, 65 Pa.C.S. Section 701 et seq.

C) That this Court order and direct Defendant, NAZARETH BOROUGH COUNCIL, that all Council committee hearings concerning the renovation or relocation of the Nazareth Government Center must be conducted as public meetings that comply with the Sunshine Act, 65 Pa.C.S. Section 701 et seq.

D) That this Court order such other and further relief as it deems proper.

Wednesday Morning Update: Yesterday,I was looking at a bus schedule to get out of town when that damn cell phone rang. It was The Express Times! Holy canoli! I don't think the ink on the time-stamped complaint was dry, yet Courtney Lomax already knew what was going on. Her report, published today, reveals the basic problem - Council President Chiavaroli told her that the only time the Sunshine Act applies is when there is a quorum of Council. Wrong answer! It also applies in most cases to Council committees. Now, Council should not disregard their Solicitor's advice simply because I disagree. But they will have to listen to a judge. 12/10/08 Update: When this post originally published, I inadverdently included my home address. I have redacted that information for reasons of personal security.