October 20, 2013 Borough Council President Christopher McNamara Middletown Borough Council 60 W Emaus St.

, Middletown, PA 17057 Re: Sunshine Act Compliance

Dear Councilman McNamara, I am writing on behalf of the Press And Journal newspaper to urge the Borough of Middletown to carefully consider its committee meeting procedures in light of the Sunshine Act. I am a media law attorney with the Pennsylvania NewsMedia Association (PNA), the trade association representing the interests of print and digital media entities throughout the Commonwealth, and the Press And Journal is an active member of our organization. As explained to me by the Press And Journal, and confirmed by the Middletown Borough website, council created a number of committees to deal with various areas of borough business. For example, the borough website indicates that in 2012 the borough relied upon at least 16 different committees to address various aspects of borough business, including Community and Economic Development, Public Safety and Public Works Committees. What is also clear is that borough council delegates responsibility in various areas to these committees, which in turn render advice to borough council for subsequent policy making decisions. Further, the Press And Journal reports that committee meetings are not held in compliance with the Sunshine Act, with most meetings unadvertised and not open to the public. If borough committees are not functioning in compliance with the Sunshine Act, it exposes the borough to potential liability. Additionally, noncompliance puts the residents and taxpayers of Middletown Borough at a distinct disadvantage and denies them their statutorily guaranteed right to witness and participate in the formation of public policy. As you know, the general rule of the Sunshine Act requires that anytime a quorum of an agency discusses agency business, it must do so at a public meeting, unless an exception applies. Section 703 of the Sunshine Act defines agency as the body and all committees thereof authorized to render advice or take official action on matters of agency business. As committees created and empowered by borough council to discuss and render advice on specific areas of borough business, the various committees of Middletown Borough are agencies themselves required to comply with the Sunshine Act. As an agency subject to the Sunshine Act, anytime a quorum of the committee deliberates agency business, it must do so at a public meeting unless an exception applies. The fact that a quorum of borough council may not be present is not relevant because the committee is an agency itself for

purposes of the Law. There are several limited exceptions to the Sunshine Act that allow private deliberation of agency business, but the law requires public disclosure whenever an agency relies on an exception to hold private deliberations. In passing the Sunshine Act, the General Assembly expressly recognized the right of the public to be present at all meetings of agencies and that witnessing the deliberation, policy formulation and decision making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society. 65 P.S 702. The definition of agency makes it abundantly clear that the General Assembly recognized the fact that committees play an integral role in government function by performing essential work for government agencies, and this work is required to be public, absent extraordinary circumstances. As is common in many agencies, committees do a great deal of work on particular areas of agency business, discussing specifics and minutiae, and forming policy recommendations as a result. These committee recommendations are often adopted without further discussion by the larger council. When the public is not permitted to witness and participate in committee meetings, they have effectively been cut out of the policy making process in direct contradiction to the plain letter and intent of the law. The law does not limit public access to the final stage of policy formation or to the final vote. On the contrary, the law is intended to, and expressly requires, public access at all stages of policy formation. The practice of private committee meetings does a disservice to the people of Middletown and council itself, and could also result in liability. The Sunshine Act allows a judge to impose penalties for violations of the Act including criminal fines of up to $1,000 plus court costs for a first offense. In addition, civil sanctions could include fines, injunctions and invalidation of official action. Just as importantly, we ask you to consider the intent of the law. Public participation plays a vital role in enhancing the democratic process, fostering public trust, and increasing the effectiveness of government. In light of the foregoing, we urge you to reconsider holding private committee meetings. Thank you for taking time to consider this important public access issue, and please call me at (717) 703-3048 or Joe Sukle at (717) 944-4628 if you have any questions or to discuss this matter in more detail. Sincerely, Melissa Bevan Melewsky Media Law Counsel

CC:

Teri Henning, PNA President Joseph G. Sukle, Jr., Publisher, Press & Journal, Inc. Chris Couregon, Middletown Communications Director

Stanley Laskowski, Solicitor