YCIDA looks to have violated state Sunshine Act, again
Debris from Yorktowne construction falls down shoot in York City, Tuesday, Sept. 24, 2019. York Dispatch
The York County Industrial Development Authority met in closed session at least four times this past year to discuss selling one of its properties on East Market Street in downtown York, an apparent violation of the state's open meetings law.
The YCIDA owns 53-57 E. Market St., which is directly across the street from another property the authority owns, the Yorktowne Hotel.
An agency is allowed to meet in an executive session, which is closed to the public, to consider "the purchase or lease of real property up to the time an option to purchase or lease the real property is obtained or up to the time an agreement to purchase or lease such property is obtained," according to the Pennsylvania Sunshine Act.
"If the Legislature wanted to allow private discussions regarding the sale of publicly owned land, they would have said, ‘the sale, purchase or lease of property,'" said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.
The development authority discussed the potential sale of 53-57 E. Market St. in closed meetings in June, September and October of 2019, according to the authority's meeting minutes, and in December 2019, according to a statement from the YCIDA's solicitor, Ronald Hershner.
There is no language in the law about discussing the sale of property.
"They (state lawmakers) limited their terminology very expressly to the purchase or lease of property," Melewsky said. "That is the acquisition of land."
The YCIDA is a quasi-governmental agency that exists to promote and facilitate industrial and commercial development throughout the county and is subject to the state's public access laws.
The agency has received $15 million in taxpayer-funded state grant allocations in recent years to renovate the Yorktowne Hotel.
The real estate exemption of the Sunshine Act exists to protect the purchasing power of the taxpayer in real estate negotiations, Melewsky said.
If the taxpayers aren't buying anything, she added, there's no need, or authorization, for a public agency to have private deliberations.
But Hershner insists that the Sunshine Act does allow a public agency to discuss selling its property behind closed doors.
Hershner stated in an email that most attorneys with experience dealing with the Sunshine Act interpret the law as allowing agencies "to discuss any real estate transaction" including an agreement of sale, option or lease.
"An interpretation of the statute that exempts a purchase transaction by an agency but not a sale is absurd," he stated.
Melewsky said a solicitor can't just rewrite the law to allow secrecy where none was intended or permitted by the Pennsylvania General Assembly.
"The language here is clear and unambiguous," she said. "It says purchase or lease. It does not say sale."
This isn't the first time the industrial development authority has faced scrutiny over its closed meeting practices.
In April 2019, after a report in The York Dispatch, agency representatives said they would begin to record the stated reason for going into an executive session in meeting minutes, which are the permanent record of the agency's meetings.
The YCIDA bought 53-57 E. Market St. in late 2018 because of its close proximity to the Yorktowne Hotel, said Kevin Schreiber, president and CEO of the York County Economic Alliance, in a Jan. 10 email.
Schreiber stated that the development authority is "not definitely selling the property" but that local developers and organizations have expressed interest in buying.