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June 13, 2014

Attorney: Solicitor violated Sunshine Act

NEW CASTLE — A Pennsylvania NewsMedia Association lawyer said Mahoning Township’s solicitor violated state law by forbidding recording at a hearing this week.

Attorney Louis Perrotta conducted a conditional use zoning hearing before township supervisors for wellpads and a compressor station Tuesday and told the audience to turn off any recording devices.

Melissa Melewsky, media law counsel for the organization, said, “There is no case law on it, but the language of the Sunshine Act is clear.” At township meetings, she said, “anyone attending has the right to record.”

When local agencies act in a “quasi-judicial manner,” she explained, “they do not become courts/judges and they are not subject to the rules of judicial administration, such as rules that prohibit recording in a courtroom.”

Melewsky explained local elected officials “do not become judges when they decide issues in a quasi-judicial manner; they are township supervisors exercising a fact-finding role pursuant to statute.”

She concluded that while the Sunshine Act allows them to deliberate privately, “... the hearing itself is required to be public and accessible, including the right to record.”

Perrotta disagrees.

“At no time did I say you could not videotape the proceedings. They were free to do what they wanted. I didn’t take away anyone’s device.”

He explained Thursday he personally did not want to be recorded.

He read the following transcript of his statement: “ I do not consent to be videotaped, either visually or audibly. So if you have a camera this evening and if you are videotaping me, please stop or I’m going to turn you over for prosecution and you will also be subject to civil liability.”

Further on in the meeting, Perrotta said that when he saw a woman recording him, he said that if she was doing so, “I ask you to shut it off.”

He said at that time, Police Chief Jim Morris asked another person to turn off a recording device.

Perrotta noted he thinks he said at that time, “I’m not going to waste time arguing with people.”

Melewsky said it doesn’t matter and “I respectfully disagree with that attorney’s opinion.”

She said Perrotta is “talking about a wiretap violation,” explaining consent is needed to record someone “where there is a reasonable expectation of privacy.”

But she said there is no such expectation at a public meeting.

Pursuant to the state Sunshine Act, she said, those who record a public meeting “are exercising a guaranteed right.”

Melewsky said any member of the public could request an injunction against the township to prevent it from doing this again.

The township supervisors also could be charged with a summary offense in criminal court if they “knowingly” violated the Sunshine Act, she said, but added if the solicitor made the statements to the public, it is unlikely the supervisors knowingly violated it.

Perrotta also commented that section 710.1 of the Sunshine Act speaks to public participation and has a provision stating the taxpayers of a jurisdiction have the ability to comment.

He added Section 711, governing recording devices, is subject to enforcing rules under 710.1. He said he does not believe any of those who had been recording the hearing are township residents.

A similar situation occurred this week in Neshannock Township.

Those supervisors were considering a request to construct a wellpad on King’s Chapel Road.

At the start of the hearing, Perrotta, who also is Neshannock’s solicitor, requested that several women in the audience not tape the proceedings.

“I do not consent to be recorded,” he said.

Several of the women used their cellphones to record Perrotta, the supervisors and representatives of Hilcorp during the hearing.

(Reporter Nancy Lowry contributed to this story.)

(Email: grzebieniak@ncnewsonline.com)

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