"Pennsylvania airport's closed-door sessions questioned under Sunshine Law"

Monday, August 1, 2011

Airport's closed-door sessions questioned
Legal experts say LVIA authority may be using executive session too much.
By Matt Assad
The Allentown (PA) Morning Call
 

The Lehigh-Northampton Airport Authority last week held a closed-door
meeting to talk about airport matters that Pennsylvania's Sunshine Act
dictates should be discussed in public, according to legal experts and some
authority board members.

During its special meeting Tuesday, authority Chairman David Haines removed
the public from the room to discuss "litigation and contract negotiations."
But according to several authority members, the 45-minute executive session
included debate about selling property, the hiring of a contractor to run
the airport and the status of a study the authority paid to have done.

"None of those discussions are appropriate for executive session," said
Melissa Melewsky, counsel for the Pennsylvania Newspaper Association. "I
think the Sunshine law is fairly clear. All three should have been discussed
in public."

Haines and authority solicitor Glenn Williams on Friday did not dispute what
the board members said was discussed. However, they argued all three issues
were appropriate for the closed-door session. Haines was offended that
private airport business was being leaked by other board members.

"It's inappropriate and a potential breach of their fiduciary
responsibilities for them to discuss matters we discussed in private,"
Haines said.

It's not the first time the authority has barred the public from
questionable discussions. In separate executive sessions in May, the
authority met to discuss hiring the same management firm and to discuss the
same personnel study.

According to several authority members who spoke on the condition of
anonymity, Tuesday's executive session included three discussions that
experts say may have violated Pennsylvania's Sunshine Act. 

In one possible violation, the board discussed the status of a personnel
study it asked the Segal Co. of Washington, D.C., to perform. The study, to
determine how the salary and benefits of airport workers compare to workers
at other airports, has not been publicly released.

Williams contends it was eligible for a closed-door discussion because the
study involves airport personnel, and in some cases makes salary comparisons
for specific jobs that are performed by a small number of workers at the
airport.

The Sunshine Act allows public bodies to meet privately for personnel
issues, but only to discuss such things as the job performance or evaluation
or disciplining of "specific" employees.

The discussion Tuesday centered on why Segal had not been paid, and whether
the report was complete.

"It has to be discussion about a specific employee," Melewsky said. "A study
of salaries is not an appropriate closed-door discussion."

A second discussion involved the hiring of AvPORTS Management, a Virginia
company the authority is negotiating to give a two-year contract to manage
airport operations.

Williams argues that the board discussion involved details about offers and
counteroffers the airport would be making in its negotiation with AvPORTS.

"This is contract negotiations," Williams said during a conference call
Friday that included Haines. "Are you suggesting the authority board has to
discuss its contract negotiations publicly?"

Yes, according to Melewsky.

"If they want to talk about private contract negotiation as a board, then,
yes, they have to do it in public," Melewsky said. "They should get a lawyer
or administrator to do it, if they want it done in private. The law is clear
that if they want to have a discussion as a board, then it's got to be in
public."

The Sunshine Act does allow an exception for contract negotiations, but only
for the airport's collective bargaining unit.

The third issue discussed was how the authority should take offers from real
estate brokers with clients interested in making offers for its surplus
lands.

When the executive session ended, and the public meeting reconvened, Haines
formed a committee of the board to review the bids. But Kim de Bourbon,
executive director of the Pennsylvania Freedom of Information Coalition,
said all the discussion leading up to that move should have been public, as
well.

The Sunshine Act does allow public boards to go into executive session to
discuss negotiations to buy or lease property, but there are no provisions
that allow a board to privately discuss selling its property.

"That's three strikes and you're out," de Bourbon said. "None of those
issues should have been kept from public view. It's a clear violation of the
law. It's not even debatable."

Williams contends that the discussion about whether to accept bids on
property are part of "litigation strategy," because the land they are
selling was the subject of a 15-year court battle in which they were ordered
to pay a developer $26 million for land the airport took in the mid-1990s.

"The discussion was to discuss that litigation and the court master's
recommendation that we sell the land," Williams said. "It was to discuss
litigation strategy to deal with the master's recommendations."

Again Melewsky disagreed.

"That exception in the law is there to protect trial strategy," she said.
"It seems to me that the trial is over and they've lost. Any discussion
about how they will raise money to pay the debt should be done in public."

Penalties for violating the Sunshine Act are small, amounting to maximum
fines of $100. Those penalties are scheduled to increase Sept. 5, to up to
$1,000 for a first offense and $2,000 for a second violation. In addition,
the new penalty provisions state that the individuals deemed to have
violated the law must pay the fines themselves, and cannot pass the fee
along to the public body.

Those provisions were increased after a grand jury in Lancaster County found
that the Lancaster County Commission held at least two private meetings to
discuss the sale of public land. The commissioners pleaded guilty to
criminal charges of violating the law, and the grand jury in that case
recommended that the fine in the law be increased.

"Executive session is being misused all across the state," de Bourbon said.
"The increased penalties is welcome, but it's not enough. It's frustrating."

Haines is frustrated as well, but for other reasons.

"I think our solicitor has gone the extra mile in explaining our position,"
Haines said. "I believe all this discussion about what should have remained
private is already detrimental to the job we are trying to do."

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