PENNSYLVANIA RECORD

A Pennsylvania appellate court panel has determined that the state’s Office of Open

Records was wrong to rule in favor of a union representative who sought certain records relating to a state university’s benefits program to a construction contractor.

In a June 19 decision, a three-judge Commonwealth Court panel sided West Chester University, and against Timothy Browne, the business representative of the International Brotherhood of Electrical Workers Local Union No. 98, who submitted a request to the college in March of last year seeking a copy of all benefits plans of Brendan Stanton Inc., a private contractor hired to perform electrical work in the construction of the school’s new student recreation center.

Browne had sought the information to determine whether university funds were being used by the contracting firm for an employee benefits program.

West Chester subsequently denied Browne’s request, telling him that they didn’t have the records he sought in its possession.

Browne ended up appealing the denial to the OOR, claiming that the school has a duty under the Prevailing Wage Act to ascertain whether contractors it hires with state funds are providing their employees with bona fide benefit plans, according to the Commonwealth Court’s decision.

West Chester, however, claimed it didn’t possess such records, and that even if it did it had no obligation to provide it, because the information didn’t directly relate to a governmental function.

On June 20, 2012, the record shows, OOR granted Browne’s appeal and ordered the school to acquire the documentation from the contractor about the benefits plan and provide it to Browne, finding that because “fringe benefits” were involved, the contractor’s benefits plan was indeed a public record that should be readily available.

West Chester University ended up appealing the OOR’s decision, arguing that the contractor’s benefits plan doesn’t constitute a “record” under the state’s Right-to-Know Law, and that even if the benefits plan in question was a “record,” it did not constitute a “public record.”

Writing for the three-judge panel, Commonwealth Court Judge Mary Hannah Leavitt stated that the contractor’s benefits plan is not considered a “record” under the RTKL because the plan information doesn’t document a university transaction or activity, nor was it created, received or retained by West Chester.

“Contractor’s employee benefits plan relates only to the relationship between Contractor and its employees, not the relationship between Contractor and the University,” the appeals ruling states. “Assuming Contractor has one or more benefits plans, the University played no role in creating them. Stated otherwise, Contractor’s employee benefit plan documents were not created in connection with its contract with the University.”

The contract between West Chester and Brendan Stanton Inc., the ruling states, never mentions an employee benefit plan and doesn’t require the company to provide a copy of the documents to the school.

Browne had argued that because the employees were working in connection with a contract between the university and Brendan Stanton, the benefits plan information documents a transaction or activity of the state university.

But Browne’s argument that the benefits plan was created in connection with a university transaction is based on a false premise, the judges determined.

First, the contract between West Chester and the contractor doesn’t require that the contractor have a benefits plan, only that Brendan Stanton pay its employees the proper minimum wage, the ruling states.

And secondly, the judges noted, the benefits plan was not established in connection with the contract between the two entities.

The appellate judges also disagreed with Browne’s argument that the benefits plan is a “record” of the university under the RTKL because West Chester had constructive possession of the plan, writing that the Prevailing Wage Act doesn’t contain any provisions requiring contractors to establish an employee benefits plan and doesn’t require the contracting agency to inspect the contents of plan documents where a contractor has created them.

Because the contract was subject to the PWA, West Chester did need to inspect Brendan Stanton’s payroll records to ensure employees were receiving minimum wage, but the university was not required to ensure the contractor has a bona fide benefits program as argued by Browne, the ruling notes.

“Here, the University satisfied its duties under the Prevailing Wage Act by reviewing the certified payroll records submitted by Contractor; it was not required to maintain, inspect, or possess any documentation related to Contractor’s benefits plan,” the panel wrote.

Commonwealth Court Judges Bonnie Brigance Leadbetter and Renee Cohn Jubelirer participated in the decision.