Oops: Do Ambler’s Borough Council Discussions on Hiring a Consultant Violate the Sunshine Act?

Yesterday there was a social media post by the member of the public that raised a question about the Borough of Ambler hiring a consultant for $20,000. The post generated a lot of comments and AroundAmbler.com emailed the members of Borough Council collectively to provide them the opportunity to explain the situation or state that the social media post wasn’t true. The original post has since been deleted.

We received back a response from Borough Council President Frank DeRousi (D). Below is the text of his response:

Speaking for council i can say that to date, council has not approved any such consultant, nor any amount associated with said consultant.

We then received another “reply all” email from Borough Council member Glyniss Siskind (D) who offered:

So what’s the plan for addressing this now that it’s out there? I know the official line is probably that it’s a personnel issue, blah blah, but I think ignoring it looks bad.

A third member of Borough Council Sara Hertz (D) then “replied all” with the following:

My view is that we should not govern or inform via unofficial pages. If we have something to share or announce, we have a Borough page and various council people have pages. In this instance,  I really don’t believe we should respond to a rumor/leak raised by an acknowledged troll who doesn’t even live in the borough.

If we make any statement on Pat’s page, I think it should be that business is discussed at our biweekly meetings, where there is always an opportunity for public comment.

I would ignore the comments about the number of exec committee meetings we have or sunshine laws and simply respond with that one sentence.

Finally, I would be very interested to know how Jay Gelman got the info about a mentor in the first place. That’s a serious leak – again.

After DeRousi’s email, the other members of Borough Council forget that AroundAmbler.com was part of the email chain (which we initiated). After that was realized, we received an email from Hertz asking us not to publish what she deemed “council business.”

However, we feel the emails provide important insight on how Borough Council thinks about providing information to the public and a potential violation of the Sunshine Act.

As you can see, DeRousi answered the question without really answering it. He, left open the door to hiring the consultant in the future.

Siskind expresses she wants to be open about it. She notes that that the “official line will likely be that its a personnel issue.” However, it needs to be explored as to whether hiring a consultant can be considered a “personnel issue.” Personnel issues are a topic that elected bodies and agencies are allowed to discuss in an executive session.

The Pennsylvania NewsMedia Association published a paper titled “Misconceptions about the Sunshine Act abound, Part 1” that reviews how hiring a consultant is viewed in relation to the Sunshine Act and executive sessions. From the paper:

The Pennsylvania Commonwealth Court has ruled that the “personnel exception” does not apply when an agency meets to discuss an independent contractor or consultant. Such persons, the court said, are not “appointed by the agency” in the sense that the legislature intended.

Therefore, the “personnel exception” does not permit an agency to meet in executive session to discuss the engagement of an independent contractor, or the termination or extension of an independent contractor’s agreement.

So has this consultant been previously discussed in executive session, when as outlined above, it should have been an agenda item for an open meeting?

Hertz’s comments seem to confirm that is has been discussed behind closed doors. She refers to the information about the consultant becoming public as a “serious leak.” Referring to it as a leak could only mean it has been previously discussed and outside of a public meeting.

Let us know what you think in the comments.