Cocalico Corner: Dark skies linger in the East

By on April 12, 2017

Cocalico Corner Donna ReedThere’s a long-standing saying among journalists who cover governmental entities. It goes something like this: “Sunshine is the best disinfectant.”

In the past month, it’s clear there was wasn’t much sunshine breaking through the clouds over in East Cocalico Township. That’s where the three-member board of supervisors decided it was not only okay to hire someone for the long-vacant position of full-time township manager, but that they’d go ahead and announce the appointment in a press release to local media before taking formal action in a public meeting.

Well, all right, I take that back about the clouds breaking. A little ray or two got through via the press release and that’s what made everyone all the more aware of the darkness of official decision making in the municipality.

If you recall, you read about the new township manager in the April 5 issue of The Ephrata Review. In fact, had the March 28 release come out a few hours earlier, we would have shared it in that day’s print issue of the Review.

Let me give you the start of the back story. Early in the afternoon of March 29, our East Cocalico correspondent, Alice Hummer, received an email from interim manager Steve Gabriel containing the press release.

The release began with the usual “For immediate release” albeit the letters were all upper case with the date 3-28-2017.

The lead sentence read: “ East Cocalico Township is proud to announce the hiring of Mr. H. Scott Russell, PE. to serve as the next Township Manager.”

The release went on to include Russell’s significant and impressive professional and educational accomplishments, his civic activities, and his service as chairman of the East Hempfield Township supervisors.

While Gabriel released the report, it was with the blessing of the East Cocalico supervisors. Over the course of the years, we have come to realize that the East Cocalico manager (whomever it is) must clear communications with the media with his bosses, usually the chairman himself.

But Gabriel did provide some additional information to both myself and Hummer.

In an email to us dated March 29 at 1:26 p.m., Gabriel offered a clarification on timing and stated: “The Board held an Executive Session yesterday to announce to Township staff that Scott was to be the new Township Manager. The Board had previously offered the position to Scott and he had accepted.”

So, on March 28, the East Cocalico staffers learned — in an executive session — that they had a new boss. So, in addition to the executive session(s?) of either March 6 (when Scott was interviewed) or March 7 (when the offer was extended by Supervisor Chairman Douglas Mackley), there was yet another unannounced executive session on the 28th.

Okay, then, let’s walk back to the township meeting of March 16. At that meeting, to the public, the supervisors announced they’d made an offer and were waiting to hear back.

But Scott told our LNP colleagues he’d called Mackley on March 10 to say he’d accepted the offer. A week later, March 17, Scott’s fellow Rettew employees — including a blind-sided Gabriel, the interim township manager — learned Scott was taking the East Cocalico post.

A dozen days later, the news release was sent out. Who wrote it? Word has it, it was Scott himself with final approval coming from the supervisors who gave the distribution green light to Gabriel.

Okay…so here’s another twist. If you recall, Scott is himself a township supervisor, who, one might surmise, is acquainted with the state’s Sunshine Law.

He should know the hiring decision must be made in a public meeting after allowing public comment on what should be an agenda item.

The one good thing about this comedy of Sunshine errors is the public outcry it inspired. Twenty-some citizens showed up for the April 5 meeting to question the supervisors.

LNP sent one of it’s most seasoned editors, Jed Kensinger, to stand up for governmental transparency and explain how the supervisors violated the Sunshine Act.

Watchdog citizens spoke up. The responses of the supervisors to those questions are included in Hummer’s news article preceding this column.

Amazingly, the longtime township solicitor, Thomas L. Goodman, did not attend the meeting. (Oftentimes municipalities try to save money by meeting without their solicitors — a dicey practice, especially at a time like this!) His letter to Mackley defending the actions of the supervisors as being within the purview of the Sunshine Act was read at the meeting.

In the letter, Goodman stated he’d reviewed materials faxed to him by Mackley.

Goodman confirmed: “that the Supervisors, at an executive session, decided to offer the position of Township Manager to Scott Russell.

“Thereafter, it is my understanding that Scott Russell accepted the offer.

“Subsequently, my understanding is that you informed the Township employees that Scott Russell would be the new Township Manager.”

Goodman goes on to cite Section 708(a) and 708(b) of the Sunshine Act to defend the supervisors actions.

What didn’t happen – in accordance to Section 708(b) was this: the supervisors did not announce either before or immediately after March 6 or 7 that such an executive session was being held. That includes the March 16 meeting. Here’s the law’s verbiage on this:

“The reason for holding an executive session must be announced at the open meeting occurring immediately prior or subsequent to the executive session.”

Section 708(c) provides that official action on discussion held pursuant to susbsection(a) shall be taken at an open meeting.

After examining Goodman’s letter, Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, offered this response:

“This letter accurately restates parts of the law, but not all of them,” Melewsky said. “It seems to be advising the board to vote at a public meeting because that apparently has not been done yet, despite the law’s requirements.

“What isn’t in the letter, but is critically important, is that the Sunshine Act requires public comment prior to all votes, and this kind of retroactive action ignores the important right of the public to participate in decisions.

“Public votes are not just a formality, they are required by law to take public comment into account and that doesn’t happen in situations like this one.”

And therein lays the rub for the citizens concerned about the process.

I’ve spoken with several of them and to say they are unhappy is an understatement. Jeff Mitchell, frequently on hand at township meetings, was disgruntled enough at the what he sees as Sunshine Law violations that he placed a call to the Lancaster County District Attorney’s office.

Mitchell likens the East Cocalico supervisors actions to that of the Manheim School Board which was alleged to have repeatedly met in private to make decisions. The case went to the county DA who then passed it on to the state attorney general. Then then-embattled AG office, itself dealing with unprecedented scandal, in mid December ultimately declined to prosecute the school board members because, according to LNP, the investigation “did not reveal any evidence of an illegal intent” to violate the Sunshine Act.

LNP reported that the AG, “through a spokesman, added he believed ‘the board’s actions were likely not in the best interest of transparency’ but pointed out it did seek an opinion from a solicitor on how to lawfully conduct business.”

And so, the Goodman statement may be a salvation for the East Cocalico supervisors, but there is a new state AG and he may see things differently in a different case should it proceed that far.

Melewsky said the difficulty in enforcing the state Sunshine Law is a major frustration of citizens and journalists who find themselves serving as a sort of information law enforcement.

The best thing, she said, is for public officials to dedicate themselves to full transparency.

“When in doubt, elected officials need to err on the side of openness,” she said, “it’s the foundation side of this law.”



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