Behind closed doors

Morrison, Times Observer say commissioners violated Sunshine Law

The Times Observer and Warren County Commissioner Cindy Morrison allege that a violation of the Sunshine Law occurred when a public employee was terminated during an executive session.

The Warren County Commissioners have committed a violation of the Sunshine Law.

The Times Observer – as well as Commissioner Cindy Morrison – allege that the commissioners violated the state’s open meeting law in the process of terminating the county’s formal fiscal director.

Commissioner Cindy Morrison said in a paid advertisement that former Fiscal Director Judy Albaugh had been terminated during an executive session.

Morrison, who participated in the meeting, told the Times Observer on Friday that the meeting was held on Jan. 5 and was called by Commissioner Jeff Eggleston.

“Yes, they most definitely violated the Sunshine Law,” Morrison said. “Jeff (Eggleston) says no other county does this correctly. That’s not true. Just because we have done this incorrectly all along, then it’s time to make a change and get it right.”

Section 708 (a) of the Sunshine Law outlines six reasons why public officials can hold executive sessions, including “to discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency….”

From Section 708 (c): “Official action on discussions held pursuant to subsection (a) shall be taken at an open meeting.”

Eggleston told the Times Observer that “As far as Sunshine Law, our Solicitor is drafting a detailed response stating why everything was done above board and there was no violation.”

“Following the executive session at which employment issues pertaining to the Fiscal Director were discussed, the Board announced the purpose of the executive session at the following open meeting in a manner in accordance with the Act,” Shreve wrote in the memorandum. “The fact that the Fiscal Director was terminated, which was announced at a public meeting in accordance with (section) 708(b) of the Sunshine Act, is not exempt from disclosure. I conclude that the Board did not err in conducting the executive session as it did.”

At the Commissioner’s January 10 meeting, Kafferlin announced a personnel executive session that occurred on Jan. 5.

A video recording of the meeting indicates that Kafferlin said that the purpose of the executive session was “a personnel issue,” but no mention of the action taken was ever made.

In response to a question regarding the termination, Kafferlin provided the Times Observer with a defense of his position:

“First, having asked about a dozen other Counties what they do, about half of those polled do not disclose terminations. This indicates to me that it is fairly common practice and, while it’s possible that a vast number of Counties uniformly do something wrong, it is unlikely. Either way, it is enough of a reason to believe that the recent terminations under my administration were done appropriately.

“Second, the County fairly regularly relieves employees of their duties, and has for years, and action is not taken in a public meeting. Past practice is also not necessarily proof that we were acting appropriately, but it does make the point that nothing abnormal was done recently.

“Third, it is prudent to terminate privately. The nature of the reason for specifically firing someone shouldn’t be publicly aired if for no other reason that it’s unkind to the employee.

“Related to that, the County would incur liability by publicly terminating, as it could damage the employee’s reputation.

“Fifth, there is no particular standing for the public to know whether someone was terminated, resigned, retired, etc.

“Seventh, narrowly in the case of the Commissioner’s most recent termination, it was noted in the very next public meeting (a work session) that the position was vacant, which I believe further satisfies any need for further disclosure, as would the ads placed in your business’ publication advertising the position opening.

“Finally, I verified with the County Solicitor and Labor Attorney, as well as the Knox Law Firm’s government attorney that has worked with us in the past to verify my position.”

Kafferlin and Eggleston presented several court cases that they believe supported their position – including cases dubbed Maloney and Notarianni which were both addressed by Commonwealth Court.

“Both the Maloney appeal and the Notarianni case were decided by the Commonwealth Court in unpublished, unreported opinions, which means they are not precedential and not binding on any court,” Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Corporation.