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Ruling: Highlands violated Sunshine Act

Chuck Biedka
| Friday, Aug. 6, 2010

A three-judge appeals panel ruled Thursday that the Highlands School District violated state law when it held a closed-door session with shopping center representatives last year to talk about a tax assessment appeal.

In the order, Commonwealth Judge Patricia A. McCullough wrote that the private meeting with Heights Plaza Shopping Center representatives "has the odor of favoritism that the Sunshine Act does not tolerate."

The order reverses an Aug. 6, 2009, Allegheny County Court ruling by Judge Joseph James.

The case involves a June 8, 2009, school board executive session -- or non-public -- meeting.

The Valley News Dispatch and its parent company, Trib Total Media, filed suit soon after alleging the meeting violated the Sunshine Law. When Judge James ruled in favor of the board, the newspaper filed the appeal that was announced Thursday.

The McCullough order states that the meeting with the shopping center representatives in closed session "destroyed the confidentiality of the communications" between the board and its solicitor and made the closed door meeting improper."

McCullough dismissed the board's argument that including the Heights officials was "necessary to carry out the purpose of the meeting."

She also rejected the board's argument that denying the shopping center, or anyone in litigation, the closed-door conversation will have negative consequences, prevent the board from making informed decisions and "frustrating the use of alternate dispute resolution."

Citizens have the right to know when the board and other public entities meet and the right to attend those meetings.

"This clear and specific right is not diminished by general policies and trends favoring negotiation, settlement and alternative dispute resolution," McCullough wrote.

Even if the judge agreed with the district, McCullough said expanding permissible reasons for holding an executive session is a matter for the Legislature, not the court.

Highlands School District Solicitor Ira Weiss said he is disappointed with the decision.

"We believe at the time that the Sunshine Act permitted the meeting with a client and other parties of litigation to discuss litigation. Commonwealth Court saw it otherwise."

Weiss said he is considering whether to appeal to the state Supreme Court or if the Commonwealth Court will be asked to reconsider.

Weiss said he will discuss the matter at the school board's meeting Monday evening.

Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association, pointed out that a state Supreme Court appeal isn't automatic. The court has to accept the appeal, and it accepts only a few of the thousands of requests it receives, she said.

Melewsky said the ruling will help courts in similar cases across the state.

"We hear about this type of thing all the time," she said.

The "plain language" of the Sunshine Act explains the types of legal exceptions that allow a governmental body to meet behind closed doors, she said.

"It's a great victory for public access when the court steps in protect the public's right to monitor and participate in their government," Melewsky said

Trib Total Media attorney David Strassburger said Thursday's ruling is important.

Public meetings on matters concerning the public must be open to the public, he said. When that doesn't happen, he said, it "casts suspicion" on public officials and "erodes the public's confidence of the work of elected officials."

Strassburger "hopes the Highlands School Board will be strongly committed to transparency in government in the future."

Jeff Domenick, editor of the Valley News Dispatch, said he was surprised the newspaper lost at the county level.

"We understand the Sunshine Act and knew what Highlands did was contrary to the law," Domenick said. "Commonwealth Court's strongly worded opinion demonstrates it fully agrees that what Highlands did was wrong."

Additional Information:

What about the appeal?

The school board executive session was held to discuss the Heights Plaza Shopping Center's property tax assessment appeal. On Thursday, Allegheny County officials said the appeal is still pending and that a canceled July 9 negotiation has yet to be rescheduled. Shopping center officials didn't return calls for comment.

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