An early start and a lack of public input at the New Castle Planning Commission’s April 1 meeting apparently left the panel in violation of the Pennsylvania’s Sunshine Act.
“I don’t believe that this was anything intentional,” said city Solicitor Ted Saad, who attributed the miscues to the complications of virtually hosting public meetings during the COVID-19 pandemic. “Things fell through the cracks on this for sure.”
A notice for a special meeting at 11 a.m. April 1 was published in the March 27 edition of The News. The stated purpose of the meeting was to hear the appeal of DON Recovery’s plan to open an outpatient drug and alcohol treatment facility in the Central Building.
Because city hall has been closed to the public since March 13, the meeting was to be held virtually, and although city clerk Ciara Buck confirmed the meeting would be live-streamed for the public, it was not.
A video of the commission’s Zoom meeting was supplied to The News by Mayor Chris Frye six days after the meeting.
At the start of the 55-minute video, DON representatives Diane Shaffer and Philip Berezniak already have begun presenting the project. After 23 minutes, Shaffer asks the commission if members have any questions.
Commission member Jeff Fandozzi asks if chairman J. Christoper Miller is on the call. When Miller confirms that he is, Fandozzi asks if there was a call to order and if attendance was taken. Miller replied that he had not done either, but then proceeded to do so.
According to Erik Arneson, the executive director of the Office of Open Records, this is not a violation of the Sunshine Act. It is, however, counter to Robert’s Rules of Order, a procedural manual that governs most governmental boards.
Fandozzi explained that when he called into the meeting at 10:58 a.m., Shaffer and Berezniak already were on the third page of their presentation.
According to Arneson, starting a meeting before the advertised time and conducting “substantive business” is “almost certainly a violation of the Act.”
Fandozzi asked if there had been any public comments about the project. Miller, who denied it was a public meeting and referred to it as a “conference call,” said they had not taken public comment prior to the meeting. Since the meeting also was not live, the commission could not entertain questions during the meeting, either.
Miller confirmed that although the public did not have the opportunity to submit any comments, it will have the opportunity to do so when New Castle City Council votes on DON’s request.
Fandozzi suggested the commission not to conduct a vote for the project’s recommendation until public comments were entertained.
According to the Sunshine Act, the opportunity for public participation in public meetings is required.
“Agencies must provide a reasonable opportunity for residents and/or taxpayers to comment on an issue before a decision takes place,” the OOR’s website reads.
In light of COVID-19, an outlet for the public to submit comments before the meeting has been deemed acceptable, according to the open records office.
New Castle City Council has instituted this practice.
Shawn Anderson, the city’s community and economic development coordinator, informed the commission during the call he was going to post the recorded video of the meeting on the city’s website April 6 to give the public 48 hours to submit any comments.
As of Wednesday, the video of the April 1 meeting had not been made public.
Miller asked if the commission could vote by email after the public had submitted questions and DON had answered both the public and the commission’s questions.
According to the act, all official actions must be done in public.
Instead of voting over email, the members voted not to adjourn the meeting, but to have a “continuation” meeting on April 10 after they had received public comments.
According to Arneson, the Office of Open Records did not find any case law distinguishing a “continued” meeting from a meeting that is adjourned.
“An agency could perhaps argue that a ‘continued’ meeting is a special or rescheduled meeting under Section 709(a) of the Sunshine Act, which requires advertising at least 24 hours prior to the special or rescheduled meeting,” Arneson wrote in an email.
“The notion of a ‘continued’ meeting without proper advertising absolutely violates the spirit of the law, and it almost certainly violates the letter of the law as well,” Arneson continued.
During the April 1 meeting, Anderson noted posting the April 10 meeting announcement on Facebook and the city’s website would suffice as advertising.
The act states all public meetings must be advertised in a public notice in a paid newspaper with general circulation or in the location of the meeting.
The April 10 meeting was not advertised in The News nor the city’s website, and, according to Saad, it was not recorded because it did not occur.
Although public comment was not accepted before, during or after the meeting and the commission member’s questions for DON were not answered publicly, a vote was cast via email.
The planning commission voted 3 to 2 to recommend DON Recovery’s project.
Commission members Miller, Frank Ross and David Esposito voted yes while Fandozzi and Steve Farris voted no.
Saad believes under the circumstances, a vote via email would be sufficient if public comment had been accepted.
Anyone who would challenge the vote in court, Arneson said, would “have a very strong case” due to the lack of public comment. There is a simple remedy to correct this issue. In order to rectify the issues, Saad said, the commission will need to schedule another public meeting to accept public comments and potentially conduct another vote.
The City of New Castle Planning Commission is an advisory board to the city council.
To view the April 1 meeting, go online to https://tinyurl.com/uohv6ms.