YCIDA excluded public from meetings as Yorktowne Hotel costs soared
The York County Industrial Development Authority repeatedly met behind closed doors for more than a year as the cost of the Yorktowne Hotel renovation skyrocketed and the reopening was delayed.
The authority went into executive session during 11 of the past 15 meetings going back to January 2018, and the reasons are listed in the minutes for only four of those executive sessions.
Meeting minutes are meant to be the permanent historical record of the agency, so that anyone who's interested in what happened at the public meeting at least has a thumbnail sketch, Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said.
The Pennsylvania Sunshine Act, or Open Meeting Law, doesn't explicitly require justifying an executive session in the minutes, but it does require the agency to announce in an open meeting specific legal justifications for holding one, Melewsky said.
"It doesn’t make any sense to have that thumbnail sketch and not include an official announcement pursuant to law," she said.
Development authority Solicitor Ron Hershner said that moving forward, the YCIDA will list the reasons for holding executive sessions in the minutes.
Contracts: In three of the cases for which the authority provided a rationale for an executive session in its minutes, the stated reason was to discuss contracts.
But there’s no blanket executive session exception in the Sunshine Act that allows contract discussions to take place behind closed doors except in the case of collective bargaining or labor negotiation.
Contracts with outside contractors don't qualify, Melewsky said.
In January and February 2018, the minutes indicate the authority discussed a "contract agreement" in executive session, but no other details were listed, such as whether the authority members had already approved the contract or were still negotiating the terms.
Authority Chairman Jack Kay signed a contract with Kinsley Construction for work at the Yorktowne Hotel on Feb. 28, 2018.
More than a year later, on March 5, Kay called for an executive session to again discuss contract negotiations, after which the authority approved a pending change order requested by Kinsley Construction for $7.3 million.
Officials said in February the projected cost would be nearly $40 million — double the original estimate — by the time the project is finished. The $7.3 million approved last month is included in that figure, Kay said.
Melewsky said the public should have had an opportunity to weigh in before the authority approved the change.
"Changing a contract is deliberation of agency business," she said. "That should have happened publicly."
In March 2018, the minutes indicate the authority discussed real estate in executive session.
The Sunshine Act allows agencies to discuss privately the potential purchase or lease of real property up to the time the agency has an option or an agreement to buy or lease such property.
There was no additional information about the real estate discussion in the minutes.
Response: In response to later questions about the March 5 closed-door meeting and the Kinsley contract, Nancy Barry, right-to-know officer for the YCIDA, said only that the board approved a change order to the contract and that all other questions would be answered in the forthcoming meeting minutes.
Those minutes, approved at the Tuesday, April 2, meeting, indicated that the reason for the executive session was to consult with the solicitor about avoiding "potential claims or litigation" related to subcontractor bids and contracts, not "contract negotiations" as originally stated.
Hershner said Kay misspoke about the reason for the March 5 closed meeting, calling it an error.
But Melewsky said discussing whether or not a certain action or decision could potentially result in a lawsuit is not a valid reason to exclude the public, under that law.
Discussing litigation with the solicitor in a closed meeting is only appropriate if the agency is either already involved in a lawsuit or has reason to expect a lawsuit will soon be filed, she said.
An expectation of a lawsuit is usually the result of a demand letter from an attorney stating a specific legal basis for a complaint, she said, and the reason for the complaint must be shared with the public.
Hershner said the YCIDA is not involved in a lawsuit and has not received a demand letter indicating a potential lawsuit. He declined further comment.
"The minutes reflect what the purpose of the executive session was," Hershner said.
Background: The Yorktowne Hotel was originally scheduled to reopen this summer, but at the April 2 meeting, Kay said that goal had been pushed back to summer 2020.
Structural repairs and asbestos and lead remediation have delayed progress, Kay said.
The project is funded in part by a $10 million state grant, which requires $10 million in matching local funds, and the authority recently received an additional $2 million in supplemental state grant money.
The YCIDA bought the Yorktowne in 2016.
The authority also owns PeoplesBank Park, home to the York Revolution independent league baseball team.
Past projects include the Marketview Arts downtown arts center and the 58-acre Harley-Davidson West Campus. The authority bought, renovated and later sold both properties.
— Reach Lindsey O'Laughlin at firstname.lastname@example.org or on Twitter at @lmolaughlin.