Email among Dormont council members raises question of Pa.'s Sunshine Act

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A recent email exchange among Dormont’s council and borough manager about doing business with an environmental engineering firm has drawn criticism from two council members for being conducted in private.

Two lawyers who are experts in open-government issues say the emails appear to constitute deliberation and voting by a quorum outside of a public meeting, which is contrary to the Sunshine Act.

Several council members and the Dormont solicitor said there was no breach.

The communications dealt with hiring Hazen and Sawyer, a global firm with a Pittsburgh office, for $60,000 to assemble bid-ready documents and apply for a state grant to fix storm water problems.

A council vote on whether to hire the firm is set for Monday.

But a majority of council members appear to have already told borough manager Jeffrey Naftal by email that they support using Hazen and Sawyer (read the emails).

Mr. Naftal alerted council April 9 to a grant opportunity with the state Department of Community & Economic Development that could pay for the bulk of a proposed $400,000 storm water remediation project. The application deadline is July 21.

That project has not been approved by council.

“If there is interest among council in pursuing this, I will need to give Hazen and Sawyer the go ahead now, and then present their formal proposal to council for approval at the May meeting,” Mr. Naftal wrote. “Please let me know your thoughts on this as soon as you can.”

Council members quickly responded. Onnie Costanzo, for instance, wrote, “I support hiring Hazen andCo Sawyer ... .” And Joan Hodson emailed, “I am OK with taking whatever avenues we need to and get this taken care of.”

The two council members concerned about their peers’ actions — John Maggio and Drew Lehman — did not indicate by email their thoughts on using the firm.

Craig J. Staudenmaier, a Harrisburg attorney, called the council members’ responses “clearly deliberation.”

“When you’re saying, ‘I’m in favor of going ahead, let’s hire them,’ you’re moving from deliberation to voting, and you’ve got to do that in public,” Mr. Staudenmaier said.

Mr. Maggio said he was troubled that his colleagues were “conducting business without input from the public, making decisions without having meetings first to discuss it.”

Mr. Lehman said he was leery about private communications.

“I just stayed out of the fray,” Mr. Lehman said. “I don’t feel it’s up to us to do that via email. We can have discussions on different subjects, but I don’t feel that projects and things that affect the citizens and tax dollars and so forth should be held without public comment, without the proper vetting of questions and answers.”

Dormont solicitor John Rushford said the responses from council referred merely to placing an item on Monday's agenda.

But at least two members — President Willard “Bill” McCartney and Ms. Hodson — said in interviews that was not the case.

Mr. McCartney said his response of “I would support moving ahead ... ” was a “hybrid” of placing the matter on the council agenda and approving the firm to work “at risk” — or with the knowledge that council might vote against hiring them.

And Ms. Hodson said she was “giving Mr. Naftal the OK to contact these engineers and tell them we’re OK with you applying for the grant for us, knowing full well that we would vote on anything related to the grants at the next meeting.”

“There was no vote,” Ms. Hodson said. “It was more for fact-finding. Should we proceed with this? And it’s not the first time that our manager has ever asked us through email, ‘Is this something that I should proceed and put this on the agenda for you all to approve and vote on?’ ”

Mr. Rushford defended council’s actions.

“I think this is completely appropriate in doing a councilperson’s due diligence to find out about an issue,” Mr. Rushford said.

“It doesn’t, in my opinion, constitute what the Sunshine Act would call deliberative because I think they’re getting the facts rather than making broad, sweeping policy statements regarding it.”

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, disagreed and said council’s comments appeared to be deliberation and “apparently a vote.”

She also said even if council merely approved placing the item on Monday's agenda it would constitute “agency business” that must occur at a public meeting.

An agency can gather information behind closed doors, according to a state Supreme Court opinion last year.

But “there’s gray area in there” between information-gathering and deliberation, Mr. Staudenmaier said.

Mr. Maggio said his colleagues’ intent was clear when they told the manager they wanted to go ahead.

“I took it as moving forward in two things — paying Hazen & Sawyer $60,000 to do their preliminary work, and to move forward with a $400,000 project.”

He called Mr. Rushford’s explanation “absurd” and “a joke.”

Mr. Lehman said he, too, perceived other council members’ comments as indicating a desire to hire the engineering firm.

“I didn’t see it as placing it on the agenda,” Mr. Lehman said. “I saw it as moving forward.”

Mr. McCartney said council is transparent, but he acknowledged that the emails might have skirted the Sunshine Act.

“Maybe one could define it as a deliberation but not a vote ... . One could argue that that’s a technical violation of the Sunshine Act. I guess if you talk to our solicitor he would argue the other way,” Mr. McCartney said. “I guess one could say it was behind closed doors.”


Jonathan D. Silver: jsilver@post-gazette.com, 412-263-1962 or on Twitter @jsilverpg.

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