Thursday, February 25, 2021

Is South Whitehall Tp Violating Sunshine Act?

The Question:

Did South Whitehall Township violate the Open Meetings Law (commonly known as the Sunshine Act) in the last Board of Commissioners’ meeting?

The Introduction:

First, let me say that virtual government meetings are difficult to conduct and manage.  As a matter of fact, pre-Covid, many municipalities didn’t even allow call-in commissioner or councilperson participation or voting, so there was little experience to draw from when this became necessary.  As a result, there are certainly technological and training difficulties in this new environment that may prevent a smooth meeting experience for our elected officials and the public.  But . . . the law is the law, and extra effort must be exercised to ensure the public is allowed the opportunity to participate in the affairs that affect their lives and livelihoods.

The What:

On February 17, 2021, the South Whitehall Board of Commissioners held a regularly scheduled meeting with over 100 virtual attendees, many of whom came with something to say about the Public Works work stoppage.  During the course of the meeting, someone in the administration changed the sign-in names of most of the attendees to “anonymous”.  The reason behind this may have been because some individuals signed in with pseudonyms with derogatory references to the township manager.  Simultaneously, the “Chat” function where residents indicate their desire to speak was shut off, again possibly because of comments entered into the system.  As a result, public comment was blocked on this, or any, issue from over 100 attendees.  A reasonable, responsible and legal response to a problem?

The Law:

From the Pennsylvania Office of Open Records: 

The Sunshine Act gives the public the right to comment on issues “that are or may be before the board.”  Agencies are permitted to establish rules to oversee public comment by, for example, limiting time for each commenter.  But there is no allowance to discourage or prevent comment altogether, or the citizens’ right to hear those comments.

The Conclusion:

Did South Whitehall Township by their actions to protect a township official and/or the Board of Commissioners from direct questions or comments violate the Open Meetings Law?  I think they might have.  And I hope the board moves quickly to adopt and communicate Rules for Remote Participation & Etiquette, as both the Planning Commission and the Zoning Hearing Board have already done.


Anonymous said...

Great start Brad!

The pandemic has forced a lot of people and organizations into quickly adopting and adapting to virtual environments. There is certainly a learning curve for everyone involved.

Having meetings online certainly isn't the best option, but for the time being is the only reasonable option. Hopefully SWT (and other government meetings) can learn from any mistakes or miscues along the way and establish better rules and procedures for these types of remote meetings.

Unknown said...

Thank you for your views on what some us felt was happening. I was typing in a question and before I could even finish and try to submit it a motion made to end the meeting. In fact, I was quite impressed that they got through the issues as quickly as they did since these meetings can last quite long. I plan on emailing each commissioner my questions because the way we were unable to send our comments was quite frustrating. I felt they planned things that way so we could not express our concerns or questions about the SWT strike. And I don't feel I will get an adequate response by just emailing Commissioner Morgan. Thank you for your post.

Anonymous said...

What's the solution? When government goes into hiding, it should be prepared for torches and pitchforks, virtual, as they are these days. I suspect SWT isn't the only municipality in perilous territory here.

Anonymous said...

Bernie, the late great Lou Hershman wasn't getting answers from Allentown consil before his passing. God bless the public servants that were truly just that public servants not just self serving subservient puppets collecting a paycheck as well as there gifts in kind.

Brad Osborne said...

I agree, and after this experience, I’m hoping the commissioners talk amongst each other, the staff and the township solicitor to draft written Rules for Remote Participation & Etiquette for adoption at the next meeting. It is imperative that the township gets this right and affords each resident the opportunity to speak respectfully.

Anonymous said...

If they shut off chat, but allowed the public to be heard at the appropriate time with a "hand raised" (an option available in Zoom), then no violation. Allowing chat while business is being conducted during the entire time is like having people talk during an in-person meeting.

Bernie O'Hare said...

David Clark, your comment has been deleted bc it is OT. I think you posted it to the wrong story and will edit and post it as a separate blog.

Brad Osborne said...

Unfortunately, South Whitehall uses a GoToMeeting platform which doesn’t have a “hand-raise” option. So if the “Chat” is closed down, there is no other way for the public to indicate they are interested in speaking.

Brad Osborne said...

I appreciate you taking the time to comment, and I understand your general concern. I agree any questions or comments you have should be directed to all the commissioners to ensure you reach the entire board.

Anonymous said...

What municipality isn't violating Sunshine Act during this pandemic?

michael molovinsky said...

Public input didn't mean much at SWT before the pandemic....their courtesy of the floor is at the end of meeting. Their commissioner for life, Tori Morgan, is most of the problem there. Her relationship with the Wildlands Conservancy just cost the taxpayers 50% more to repair Wehr's Dam.

Anonymous said...

What is the reason County Government/Courthouses are able to be open and serve their residents, yet many local Municipal Governments are still closed to the public?
Is it logical to think none of these employees go out shopping, use restaurants, attend Dr. appointments, or visit family, yet they will not provide basic services to the tax paying citizens.

Anonymous said...

Act 15 of 2020 (formerly Senate Bill 841) went into effect on April 20. (Note: The Sunshine Act still applies.)

Chapter 57, Subchapter E, of Act 15 contains provisions regarding local government agency meetings during the COVID-19 emergency. Subchapter E is temporary and its provisions are limited to the duration of the COVID-19 emergency.

Some of the key provisions include:

Clarifying that local government agencies are authorized to hold remote meetings during the emergency. A physical quorum (i.e., a quorum all in the same room) is not needed. However, there must be a quorum participating remotely.
“To the extent practicable” local government agencies must provide advance notice of all remote meetings including date, time, technology, and how the public can participate. Such notice must be posted on the agency’s website, in a newspaper of general circulation, or both. The OOR also encourages agencies to use social media, email newsletters, and any other method it has available to provide notice.
“To the extent practicable,” local government agencies must provide for public participation directly through the teleconferencing or videoconferencing system used to hold the meeting, via email and/or via postal mail. (Ideally, agencies will accommodate all three methods and possibly others.)
NOTE: “Practicable” is a much stronger word than “practical.” (Merriam-Webster defines “practicable” as “capable of being put into practice or of being done or accomplished; feasible.” In other words, unless it is actually impossible to do so, it must be done. This means that advance notice and public participation are essentially required.)
If an emergency meeting (i.e., a meeting called without public notice) related to COVID-19 takes places, the minutes of that emergency meeting must be made available within 20 days.

Act 15 includes other provisions relevant to local government agencies and school entities, and the OOR encourages consultation with solicitors regarding the entire law.

In addition to the provisions of Act 15, the Office of Open Records strongly recommends that any agency holding a remote meeting record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is easily accessible by the public.

To the extent that agenda items can be delayed until in-person meetings can resume, it’s a good idea to do so.

Anonymous said...


Brad Osborne said...

Thank you very much for your post. You’ve presented a lot of pertinent & documented requirements for conducting government business during this unique time.

I hope South Whitehall officials see this information and begin to improve their process and efforts to not only conform with the law, but go the extra mile to prove to the employees, residents and businesses that they truly value their input, even on difficult topics.

Interestingly, the Planning Commission and the Zoning Hearing boards had meetings within a week of this commissioner’s meeting and did a splendid job communicating the Rules for Remote Participation & Etiquette, and accommodating every person who wanted to speak.

Good job. Please continue to comment on various subjects as you think appropriate and helpful!

Anonymous said...

The bigger issue here is why are public meetings still virtual?

Let me begin by saying that my assumption is that South Whitehall meetings (like many others in the Valley) are still 100% virtual. So my first question about South Whitehall is whether a resident could attend a meeting in person if they wanted to.

I can understand using the virtual method to provide access for those in the public who medically can't attend due to being at greater risk of the virus. At the same time, I believe it to be a right of every person to address their elected representatives in person, particularly at the local level. So the virtual option should be in addition to in-person attendance, not instead of.

Over the past year, government has handed down and enforced regulations to residents and businesses designed to keep the public safe. Those in local government can certainly take similar measures to hold actual public meetings.