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Sunshine Law issues debated

Published January 13. 2012 05:01PM

The question of the legality of a meeting held in private by the Carbon County majority commissioners was addressed recently.

During the county commissioners' meeting on Thursday, minority Commissioner William O'Gurek, asked if the new majority board had violated the Sunshine Act for holding a private meeting with a potential employee behind closed doors or if the meeting that was held on Jan. 10 was an executive session, which he was not invited to.

O'Gurek said that Commissioners Wayne Nothstein, chairman, and Thomas J. Gerhard met with attorney Robert S. Frycklund in the former administrator's office. The purpose for the meeting was the vacant tax claim solicitor position, which was created after attorney Daniel Miscavige, the former tax claim solicitor moved to the commissioner's solicitor position.

O'Gurek asked about the meeting after Nothstein reported that only one executive session was held between Jan. 3's reorganizational meeting and yesterday's public meeting.

Nothstein responded, saying, "We did call attorney Frycklund, and as you can see his appointment is on the agenda today. It was to introduce him to the department heads that he may be working with if there are any concerns with the possibility of hiring him."

O'Gurek then asked if the possibility of Frycklund taking the position was discussed.

"Yes," Nothstein replied. "It was to answer any questions regarding that possibility."

O'Gurek then again questioned whether or not the meeting was an executive session.

Nothstein said he felt it was an informational session and said that it would be a legal question for Miscavige.

"I know this has been done in the past," Nothstein said. "You know when there have been hirings that people have met and of course, I can't give you specific dates or anything, on personnel hirings. If it qualifies under the Sunshine Act and needs to be reported I certainly will have that included in the minutes."

O'Gurek said that he did not know of such meetings being held in the past where a third commissioner was not invited to a private meeting about personnel hirings.

"The Sunshine Act is clear," O'Gurek said. "It says you are not allowed to deliberate. And I don't know what went on in there ... if you deliberated or not, but I understand that you had indicated to some people in county government that you had another candidate, and that's fine you can have as many candidates as you want, but what concerns me is that deliberation is taking place in private.

"The Sunshine Act says you can have an exception to an open meeting, but when that exception takes place you have two responsibilities, unless it's within the confines of an open meeting which this wasn't - this was between meetings - you have two guidelines you need to follow. One being you that you notify all members of the board and two being you give 24 hours notice to all members of the board of an executive session.

"I'm hearing that you guys are going behind closed doors and meeting with a prospective employee and I think that flies in the face of the transparency that this administration, in its infancy, has said that it wanted to really live by. I'm just wondering if it is an executive session or not?"

Nothstein then asked Miscavige for his legal interpretation

"I think we need more information and then I'll be able to provide an opinion on it," Miscavige said.

Nothstein said it was more of an informational meeting to inform attorney Frycklund as to the issues in the tax claim and tax assessment offices and answer any questions.

O'Gurek then pointed out that informational meetings are permitted in government, but the closed door meetings are not permitted under state law.

Miscavige said that his understanding was that the meeting was not for deliberation purposes, but rather to provide Frycklund with information and to be introduced to the department.

Nothstein agreed.

O'Gurek again said that he felt the type of meeting that was held was to discuss personnel matters with a potential employee.

"That type of discussion cannot take place in private," he said, "unless it's an executive session that was previously announced and set in place where all members of the board were invited and 24 hours notice is given."

Nothstein then asked if O'Gurek and former Commissioner Charles Getz ever held closed door meeting about personnel matters without Nothstein being informed and present.

O'Gurek responded, "Not that I know of."

He then said that when he and Getz chose attorney Michael Ozalas to be the county solicitor eight years ago, their discussions happened prior to O'Gurek being sworn in as a majority county commissioner.

"When you selected Miscavige as your solicitor, incidentally, I think that was a great selection because I think the guy is great and is going to be great for Carbon County, you did that before you raised your hand and took an oath as commissioners in 2012, so you could have had as many meetings in private and deliberate for as long as you wanted in private over the selection of the county solicitor," O'Gurek said. "But once you took an oath on Jan. 3, you took an oath to abide by the Constitution and the rules of Pennsylvania and then you violated them less than a week later. I just think that if we're getting out on the right foot of transparency that you can't be having private meetings like that. As much as you don't want me in the process I am a third commissioner and I have to be involved in this process otherwise your violating the law."

Gerhard then said that he would like to comment on the matter at hand.

"We did respect Roger Nanovic's decision to reappoint Bill O'Gurek as the third commissioner, and I believe that we have to put all of our personalities behind us, all of our party affiliations behind us, and do our jobs and work together," Gerhard said. "I believe it was an informational meeting. You feel otherwise, but I think the most important thing here is we want to be able to work together. If there is animosity between the commissioners, it filters down into the office.

"It has an effect on the girls in the office so we want to be able to work together. I want to be able to come into work every day and be happy. I'm very proud to be sitting here as a county commissioner this morning but we want to send out a good message out there I certainly want to come out of the gate the right way. I certainly am looking forward to working with Bill and with working with Wayne and I think we can do good things for the county and I think that's what it's all about."

O'Gurek asked if Gerhard and Nothstein respected Judge Nanovic's decision, why wasn't he included in the meeting?

Nothstein again asked about how decisions were handled by Getz and O'Gurek during their reorganization.

"You mean to tell me that in the past, when you handled your reorganizational meeting, you spoke only to those solicitors at that time without speaking with Mr. Getz about your appointments? Nothstein said.

O'Gurek said "no."

Nothstein then asked, "Then what's the difference?"

O'Gurek said that the difference was that he was not a commissioner and did not make up the majority board at that time when he discussed his choices with Getz.

Nothstein said if Miscavige decides after reviewing everything that this would be considered an executive session, then he would report it as that.

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