Tuesday, October 13, 2020

School employee's termination at virtual school board meeting violated PA Sunshine Act

In a civil dispute that raises novel issues involving the application of the Sunshine Act to virtual public meetings during a pandemic, a Lackawanna County Court of Common Pleas judge decided that a furloughed employee was able to prove that the virtual meeting where her job and health insurance were terminated was conducted in violation of the Sunshine Act, reported Suzette Parmley of The Legal Intelligencer.

Plaintiff Kelly McGrath contends that the Scranton School Board Directors and the Scranton School District violated the Sunshine Act by holding a Sept. 14 Zoom meeting despite technical glitches that prevented the public at large from viewing or participating in the meeting.

Presiding Judge Terrence R. Nealon in an Oct. 4 opinion said the same rules that apply to public agencies for in-person meetings also apply to virtual meetings and granted McGrath’s requested temporary injunction.

“Plaintiff’s motion for preliminary injunction enjoining defendants from furloughing 218 employees and terminating their health coverage based upon official action and deliberations at a public meeting Sept. 14, 2020, is granted due to defendants’ violations of 65 Pa.C.S. Sections 702(a)-(b) and 7101(a) and 35 Pa.C.S. Section 5741(c) and (f) in connection with that public meeting,” Nealon said.

On April 20, 2020, Act 15 was adopted and became effective immediately for public meetings conducted during the COVID-19 emergency after being declared by Pennsylvania Gov. Tom Wolf.

The statute authorizes an agency or board “of a political subdivision included in a declaration of disaster emergency” to conduct its “hearings, meetings, proceedings or other business through the use of an authorized telecommunications device during the public health crisis.”

The virtual meeting at issue occurred Sept. 14, 2020, where the Scranton School Board and District decided to furlough 218 members and terminate their health coverage, including that of McGrath’s—effective at the end of the business day Sept. 30.

“The evidence presented by the parties established the violation of [the] two statutes”—Act 15 and the Sunshine Act, the judge wrote.

The judge cited Section 704 of the Sunshine Act, which requires all official action and deliberations to “‘take place at a meeting open to the public,’ as well as Section 713 empowering courts to enjoin any official action taken at a public meeting that did not comply with the Sunshine Act,” as violated by the board’s and district’s unviewable virtual meeting.

But while Nealon granted McGrath’s request for a temporary injunction, he denied her being able to recoup attorney fees and costs associated with her civil action case on grounds the school board and district did not act “willfully or with in wanton disregard” in proceeding with the virtual meeting.

“Consequently, the employee’s request for a preliminary injunction will be granted, subject to her posting of nominal bond or deposit of nominal legal tender, but her request for an award of counsel fees under 65 Pa.C.S. Section 1714.1 will be denied,” Nealon said.

Attorney Marc L. Gelman of Jennings Sigmond in Philadelphia represented McGrath and issued this emailed statement Tuesday: “The judge’s ruling reinforces the notion that transparency cannot be compromised. We are pleased by his thoughtful and well-reasoned decision.”

John Audi of Sweet, Stevens, Katz & Williams in Pittston represented the Scranton School District and Scranton School Board, the defendants. Audi did not respond to a request for comment.

The case was argued Oct. 2.

Nealon said McGrath, a school district paraprofessional, met all six prerequisites for the issuance of a preliminary injunction, including immediate and irreparable harm that cannot be compensated adequately by damages would result, and so would greater injury from refusing the injunction than from granting it.

McGrath also proved her right to relief is clear in that she is likely to prevail on the merits, the injunction is reasonably suited to abate the offending activity; and the injunction will not adversely affect the public interest.

McGrath said the only public notice published for the Sept. 14 virtual meeting advised that the meeting would be conducted virtually on the Zoom platform, and that the public could “view the meeting” on the school district’s YouTube channel, prior to the start of the meeting.

But the school board and the school district “learned that the YouTube livestream was inoperable due to technical difficulties” and proceeded with the meeting anyway, McGrath contends.

In addition, McGrath said the public, who had not signed up in advance to view or speak at the Sept. 14 Zoom meeting, were disconnected from the Zoom platform and “were unable to observe the remainder of the meeting” since the YouTube livestream was inoperable.

The board and district contend that “the public interest does not favor the issuance of a preliminary injunction” since “it is not in the public interest to delay a needed furlough because of a technical glitch,” according to the case.

Nealon disagreed.

“Once again, the issue of whether the furloughs are warranted is not relevant in this matter,” the judge wrote.

Nealon said that, by adopting the Sunshine Act, the Pennsylvania Legislature specifically declared it to be a matter of sound public policy to allow public access to such meetings.

The Sept. 14, 2020, meeting “violated the public’s right to view the board’s meeting, deliberations, and decisions. For that reason, the grant of a preliminary injunction will not adversely affect the public interest,” Nealon wrote.

Nealon said the board’s and district’s reasoning that a preliminary injunction was not reasonably suited to avert the furloughs was insufficient to deny McGrath a preliminary injunction.

“The ‘wrongful conduct’ at issue is the violation of the public’s rights to observe and participate in public meetings,” Nealon said. The Sunshine Act also prescribes public participation requirements for those meetings, said the judge.

Nealon said the fact the board or district belatedly created virtual access via the district’s Facebook page more than two hours after the meeting began did not remedy the Sunshine Act violation since Facebook was not identified as the “technology to be used” in the public notice, as required.

In addition, Nealon said making a video of the meeting available on the district’s YouTube channel the following day also did not cure the real-time violations of those statutory rights.

If McGrath’s requested injunction is granted, the board and district may cure their violations by entertaining the motion to furlough and terminate health care insurance at a subsequent public meeting that conforms to the Sunshine Act’s requirements, Nealon wrote in the Oct. 4 opinion.

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