Experts: York County officials show 'fundamental misunderstanding' of Sunshine Act

Lindsey O'Laughlin
York Dispatch

Two legal experts have slammed York County's plan to bar the public from its Public Safety Advisory Board meetings, stating the move is a clear violation of the state's open meetings law.

The criticism came ahead of the PSAB's inaugural meeting scheduled for Tuesday. 

The three York County commissioners will sit on the board, along with York County 911 Director Matthew Hobson, Office of Emergency Management Director Mike Fetrow and representatives from several emergency services organizations and a municipality.

Although the PSAB includes a quorum of the county board of commissioners, its meetings can occur behind closed doors because the commissioners will be nonvoting members and will have no say in the board's decisions, said county spokesman Mark Walters.

"If that’s the thinking, that represents a fundamental misunderstanding of the Sunshine Act," said Erik Arneson of the Pennsylvania Office of Open Records, a state agency that advises on public access laws.

The Sunshine Act is the state law governing public access to open meetings at which public bodies deliberate agency business. It's typically triggered when a quorum of a government board meets to deliberate or vote on policy.

Whether the board is made up of elected officials is "100% irrelevant," Arneson said, citing the fact that municipal zoning hearing boards comprise appointed officials and must follow the Sunshine Act.

Other examples are authorities such as the York County Industrial Development Authority. Development authority members are all appointed by the York County commissioners, and that board must also follow the Sunshine Act.

And ultimately, it's likely that commissioners would end up occasionally voting on some issues. 

While not regular voting members of the PSAB, one of the three commissioners could vote to break a tie if needed, Walters said, so in some cases, the commissioners would have a say in the board's decision-making.

President Commissioner Julie Wheeler will serve as chairwoman of the board or will appoint another chair, Walters said.

And the commissioners will ultimately make their policy decisions based on the deliberations and recommendations occurring within PSAB meetings.

All committees authorized by a public body, in this case the board of commissioners, to take official action "or render advice on matters of agency business" are considered public agencies, the law states.

"They can’t avoid public access by creating a committee to deal with certain issues, and the Sunshine Act recognizes that," said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.

Much of the deliberation and discussion that goes into policy-making happens at the committee level, Melewsky said.

If deliberations are closed to the public, she said, the public is cut out of that process.

County solicitor Michelle Pokrifka would not answer questions Monday about why the York County Public Safety Advisory Board is exempt, in her legal opinion, from the law.

She forwarded all questions to Walters, who said his statements on behalf of the county were formed based on Pokrifka's legal advice.

The law does allow closed meetings for the deliberation or discussion of public safety and preparedness issues, but only if disclosure "would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection," the law states.

Courts have repeatedly ruled that meetings of public bodies must be open unless expressly exempted within state law.

Wheeler said last week that one of the main reasons for formalizing the board was to make it easier for different elements of the county's emergency services to collaborate and continue to improve operations at the 911 center, which has struggled in recent years with staff shortages and excessive use of overtime.

The county has paid nearly $1 million to outside consultants to diagnose the cause of the issues and recently hired a new director.

York County ran into a similar problem last year when county officials planned to have a closed meeting with the board of commissioners, state legislators and poll workers to debrief about the Nov. 5 municipal election.

After The York Dispatch reported that the meeting would potentially violate the Sunshine Act, the county reversed course and opened the confab to the public.

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