In a recent conversation with Commissioner Chairman Joe DeMott I learned that he and the other McKean County Commissioners did not know that the “fire hall meeting” in Bradford area, for discussion of the exploding house phenomenon and related public safety and emergency management issues, was going to be one where public and press were excluded.
The commissioners didn’t call the meeting or make the decision to keep it “private.” I gather they were surprised at that development; and I got the impression that if it had been their call, they would not have chosen to meet behind closed doors.
Something I hope people who find themselves in such situations believe, and will even act upon from time to time—when a majority of a body insists on claiming a right to meet in secret, or when persons as officials or as private citizens or as invited guests or observers or participants find themselves, willy-nilly, in a secret or closed meeting, they are not necessarily bound to maintain secrecy.
Only when the matter is one which law requires to be discussed outside the public gaze must they consider that their lips are sealed.
For instance, if the matter to be discussed is one which fair labor practices law says can’t be discussed in public, because it creates a public opinion climate in which fair bargaining is impossible or unlikely, well, obey the law and don’t torpedo negotiations.
Or if the “personnel” matter is one in which information will be disclosed or opinions expressed which could damage unfairly the career of an individual or individuals, it would be unfair not to use a Sunshine Law provision that allows that “exception” to public deliberation and decisions.
In such situations, even a member of the agency or public entity in question who has a personal inclination to be open about everything the agency or entity does or discusses may not exercise his individual preference, and reveal what was said in the executive session, if doing so conflicts with labor law or other applicable law.
But if the majority of the board or agency decides it wants to go behind closed doors (not always literally—usually they just throw public and press and non-agency-members out), and the private session is used for discussion of whether to create a new position or of how the board wants to handle advertising positions or interviewing, or how big the English department should be—those are not things which must by law be discussed in executive session, not things that would impair normal negotiations, and not things that would harm an individual’s professional reputation or career.
Some boards do use the “personnel issue” exception to hold an executive session for just such matters, and they do so because they can. Or at least they believe they can claim that is how they saw it, in all honesty: personnel matters, and thus definable as Sunshine exceptions. However, the law does make it clear enough for most of us that not all personnel matters are Sunshine Law exceptions.
The fact of the entire body voting to go into or to call an executive session does not mean no member of that body may go public with what happened in the private session. If after attending an executive session any member believes it should not have been one, that member has the option of disclosing some or all of what took place in the session. It would be nice to see members asserting their individual rights not to be secretive in ways or to degrees that are contrary to the meaning and spirit of the Sunshine Law.
Recently the school board went into executive session while there was a motion on the floor concerning a list of salaries. A board member moved for the executive session and the board voted in favor of it. They discussed privately, then came back into public session and voted on the pending motion.
I considered it irregular that they went into executive session with a matter on the floor (moved, seconded, ready to be debated and voted upon). Since then I have seen expert opinions both ways—that action on a pending matter can be suspended and that a motion for executive session is in order; and, to the contrary, that the motion for executive session should occur before the matter is brought before the body by a motion and second. One expert says, “If it is on the agenda, and is not a surprise addition to the agenda, there is no reason not to hold or seek to hold the executive session before that item is on the floor.”
Well, be that as it may. I believe the body is supposed to vote on whether to hold an executive session, if the body is presently in a public session. And perhaps that was all done according to Hoyle.
What I still have to wonder about is why a number of salaries of key administrative or supervisory or special class personnel are grouped in one action item. Why not allow the board members to exercise their individual prerogatives by voting on the salary for each such position separately? Why force all-or-no-one decisions? That’s a legislative tactic called log-rolling. It may be convenient and efficient, but it doesn’t allow for each salary decision to be made on its merits.