Recent actions taken by the Gateway School Board could lead to potential liability under the Sunshine Act, according to an expert in media law.
During a special meeting July 23, school Director Jesse Kalkstein resigned and the school board appointed his replacement without placing the actions on a public agenda, preventing public discussion.
“The law requires the board to provide an opportunity for meaningful public comment prior to all votes,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.
According to the state Office of Open Records, “The Pennsylvania Sunshine Act … requires agencies to deliberate and take official action on agency business in an open and public meeting. It requires that meetings have prior notice, and that the public can attend, participate, and comment before an agency takes that official action.”
The board approved Kalkstein’s resignation unanimously after board President Mary Beth Cirucci read Kalkstein’s resignation letter aloud. Kalkstein was not present at the meeting and did not return phone calls seeking comment.
Immediately following the vote, board member George Lapcevich made a motion to appoint Dawn Neilly to fill the vacancy.
Neilly, a Monroeville resident and Gateway school director from 2003 to 2011, was appointed in a 6-2 vote. Board members Scott Williams and Jack Bova dissented.
Cirucci later said there were three candidates being considered — whom she declined to identify — but the public was not given a chance to comment on the appointment and the board did not present any other appointees during the meeting.
Cirucci said board members officially received Kalkstein’s resignation letter a week prior to the special meeting, but some of the board learned of his potential resignation as early as June 12, when school Director Valerie Warning allegedly sent an email to district staff saying Kalkstein’s house was for sale and he was moving and resigning.
Warning, who did not return phone calls seeking comment, was condemned in two resolutions approved at the meeting for leaking that information, among other alleged infractions.
Cirucci said board members considered other candidates to fill Kalkstein’s seat via individual telephone calls.
“It could have been the end of June or early July — but we didn’t talk about it in executive session. We had no regular board meetings in the entire month of July,” Cirucci said.
The school district’s solicitor, Bruce Dice, said “the board doesn’t have to be transparent about anything when it comes to an appointment.”
“Transparency is just a word that everybody uses today,” he added.
Melewsky disagreed.
“This statement is not only wrong, it’s offensive and school district residents and taxpayers should be outraged by it,” she said. “The Sunshine Act was amended to make it clear that filling a vacancy in elected office is an open and public process. Holding a series of one-on-one phone calls in an attempt to avoid the public conflicts with the plain letter and intent of the law.”
Cirucci said she did not place the items on the agenda to allow Kalkstein to “control the narrative of his resignation.”
“I chose, as setting the agenda, to do that to protect Mr. Kalkstein,” she said. “(Gateway School District) has a policy that allows us to put things on an agenda if we have a super majority. We followed the policy.”
According to that policy adopted in August 2017, proposed resolutions — like the one to ratify Kalkstein’s resignation and the one to appoint Neilly — need to be seen by all board members one week before a vote.
That policy can be excused if six out of nine board members, or a super majority, vote in the affirmative to consider a resolution without the week’s notice.
That is how Kalkstein’s resignation and the appointment of Neilly occurred without being placed on the agenda before the meeting.
When the board unanimously approved Kalkstein’s resignation, Bova made a motion to “add the replacement of a school director’s seat” to the agenda, which required a super majority vote in the affirmative. It passed unanimously.
Cirucci explained the replacement process and asked if any board members had a nomination to replace Kalkstein.
Lapcevich nominated Neilly, saying she was a great candidate.
Bova said he voted against Neilly because she was not re-elected in 2011 for what he recalled as “poor judgment in closing (Pitcairn Elementary School) and the manner in which she comported herself during that process.”
“I didn’t think it was my right to overturn the voters’ decision and give her the opportunity to serve again,” he said.
Residents were not given a chance to comment on Neilly’s nomination before she was sworn in.
“I think it is pertinent for the board to fill this position quickly so that we don’t miss a beat,” Cirucci said. “… So to me, this is us trying to do our due diligence to keep things going here, keep business rolling and allow the voters to decide who their candidates are going to be in November.”
Board member John Ritter suggested the board wait a week to allow others in the community to apply for the seat, but some members thought it would be best to choose Neilly based on her prior experience serving the district.
“I’m confident that we would not find somebody with the level of experience and the readiness … that Mrs. Neilly presents,” board member Rick McIntyre said.
Bova said the circumstance surrounding Neilly’s appointment is unique.
“Regardless of who we appoint or how we appoint them, this term will ultimately be filled by the Democratic and Republican committees,” he said, referring to the process fixed by the Allegheny County Elections Division. “To throw it out open, first of all, gives a lot of, quite likely, false hope to a lot of people to serve this two-year term. I don’t see the productive part of that.”
Melewsky said the board should have deliberated candidates publicly, allowed public comment, then voted.
“If a judge finds a violation, he or she could cancel the appointment, or take other action allowed under the law,” she said.
There is no state law that requires governing bodies to place action items on a public agenda, she said, but “We are working to change that legislatively and this is a perfect example to illustrate the need for change.”
The responsibility of reporting possible violations falls on residents.
“There’s no state agency that oversees and enforces Sunshine Act compliance,” Melewsky said. “It’s the job of citizens to ensure elected officials follow the law, by either filing civil or criminal complaints if they believe the law has been violated.”
