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North Hills

North Hills School Board met secretly to pick replacement for deceased member

Tony LaRussa
| Tuesday, Sept. 25, 2018, 4:24 p.m.

The North Hills school board likely violated the state’s Sunshine Law by holding a closed-door discussion about who they planned to nominate to replace a school director who died, according to an expert on the law that requires state agencies to conduct business in public.

In the hours prior to the Sept. 6 school board meeting, seven board members — President Ed Wielgus and Directors Dee Spade, Sandra Kozer, Allison Mathis, Annette Giovengo Nolish, Lou Nudi and Kathy Reid — met in executive session to discuss candidates to fill the vacancy left by Arlene Bender, who died on Aug. 12.

School director Tom Kelly was not present at the meeting.

Those discussions should have been held in public, said Melissa Melewsky, an attorney for the Pennsylvania Newspaper Publishers Association who focuses on the state’s Sunshine and Open Records laws.

“The Sunshine Law doesn’t just apply to official action, it also applies to the deliberations leading up to the vote,” Melewsky said. “Any quorum (majority) of board members who meet to discuss candidates (to fill a position) has to happen at a public meeting.”

The board’s solicitor, Michael J. Witherel, said he did not attend the private meeting but advised the board that it was legal.

The exceptions to the Sunshine Law that permit executive session include discussions about legal matters, real estate transactions, personnel and collective bargaining negotiations.

“In my opinion the board of education took appropriate action at their public meeting to discuss the appointment and then took a public vote,” Witherel said. “This is backed by both statutory and case law.”

Witherel, who did not attend the Sept. 6 executive session, did not respond to several requests asking him to cite the Sunshine Law exemption or the case law supporting his advice to the school board that its meeting was legal.

Weilgus and Nudi said the board was within its rights to meet in executive session because they considered filling Bender’s seat a personnel matter, which is one of the permitted exclusions.

That explanation, however, is covered in first paragraph of Section 708 of the Sunshine Law , which states:

“The provisions of this paragraph shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office.”

Wielgus said “three or four names” were brought up by various board members during the executive session and that the discussion centered around which of them had enough support to be appointed.

“What was truly discussed was that we need to have five votes to get someone on the board,” Weilgus said.

None of the other candidates discussed were nominated during the public meeting.

The board voted 5-2 to appoint Timothy Burnett to serve the remainder of Bender’s term, which runs through 2019. Spade and Mathis voted against appointing Burnett , who previously served on the board.

Melewsky said it is particularly important that discussions about replacing a school board member be conducted in public because those positions are originally filled by the voters.

“What’s supposed to happen is a public gathering of the candidates being considered so they can get up at a public meeting, say their piece about why they want to serve on the board, give the public a chance to comment and then take a vote to fill the position,” she said.

The Sunshine Law also requires government agencies to publicly announce the specific reason why an executive session was conducted.

But when the board convened at the Sept. 6 meeting, there was no mention that an executive session had been held.

Ried said the board did not want to release the other names discussed in the private meeting to avoid embarrassing them.

“I don’t think it’s right to put a name out in public if they’re not going to get it (the appointment),” she said. “I think that would be an embarrassment.”

While there are penalties for violating the Sunshine Law, it’s aim is not to punish, Melewsky said.

“A court could invalidate a vote if a complaint is filed,” she said. “But the goal of the Sunshine Law is compliance. What’s important is that elected officials understand that the public’s business is supposed to be conducted in public. In this case, it doesn’t look like they did it the right way.”

Tony LaRussa is a Tribune-Review staff writer. You can contact Tony at 724-772-6368 or tlarussa@tribweb.com or via Twitter @TonyLaRussaTrib.

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