PITTSBURGH – Borough of Bellevue defendants say its Borough Treasurer has no authority to argue that they violated the Sunshine Act, in approving a $20 expense to place rainbow flags in local parks in observance of Pride Month this past June.
Joseph Scioscia Jr. first filed suit in the Allegheny County Court of Common Pleas on June 23 versus Mayor Emily Marburger, Councilman Val Pennington, Councilwoman Jodie Hause, Councilman Anthony DiTullio, Councilman Jeff Stuncard, Councilwoman Anya Pikul, Councilwoman Jilian Edmondson, Councilman Glenn Pritchard, Councilwoman Amanda Sloane and Director of Administrative Services Cindy Bahn. All parties are of Bellevue.
“A decision to spend taxpayer dollars is one of the most important actions that a borough or municipality undertakes. In Bellevue Borough, however, the discussion and decision to spend taxpayer dollars was held in private, without notice and without public debate or comment. Worse, this was done deliberately to avoid public comment or notice. It was glossed over as though it was an already-decided line. This action taken by defendants further prevented public comment or discussion,” the suit stated.
The Pennsylvania Sunshine Law, a law which ensures decision-making transparency in governmental bodies and agencies, requires that any discussion of public matters and any votes on those matters are only be held in a public meeting which has been properly advertised and which is open to citizens to attend and comment.
Fines for violation of the Sunshine Law can range from $100 to $1,000 for a first offense, and up to $5,000 for a subsequent offense. The fines, as well as attorneys’ fees, can be levied against individual public officials, and the law prohibits the borough from paying them for individuals found guilty.
The suit explained Scioscia took action against his colleagues in the Bellevue Borough government, after they allegedly took official action in an email chain to spend money to purchase rainbow flags commemorating Pride Month to be flown at both Bayne Park and Memorial Park, during the month of June.
“On May 26, 2020, at the regularly-scheduled Borough of Bellevue council meeting, buried in the Parks and Recreation Committee report, the online vote to purchase flags was ratified. No discussion of the purchase occurred at the meeting by any of the members of council, the mayor or the director of administrative services. There was no ability for residents to make comment, nor was there any notice prior to the council meeting to the public that a discussion and vote to spend taxpayer money had been made in private,” according to the lawsuit.
“Since no discussion was had, nor explanation given during the Parks and Recreation report, the official action and discussion regarding the purchase happened during the course of the email chain initiated by defendant Emily Marburger. Further, all requests for official copies of the meeting minutes of the Borough of Bellevue Council meeting on May 26, 2020, as well as requests for official copies of the email chain, have been met with denials and refusals.”
The amount of money spent by the Bellevue Borough Council to purchase the flags was $20 and at the conclusion of the of the May 26, 2020 council meeting, Scioscia is said to have spoken as a private citizen in arguing the e-mail vote was in violation of the Sunshine Law – adding that by flying the flags, Bellevue would be offending the religious beliefs of some residents.
UPDATE
Counsel for the defendants filed preliminary objections on Sept. 10, countering that Scioscia cannot charge them individually with violating the Sunshine Act.
“If a Court determines that a local agency took official action at a meeting that not meet the requirements of the Sunshine Act, it ‘may in its discretion find that any or all official action taken at the meeting shall be invalid.’ While the Sunshine Act creates a right to challenge the validity of the official action of an agency, it does not create a cause of action against the individual members of that agency’s governing body, here Bellevue Borough Council members,” the objections read, in part.
“Insofar as the individual members of a local agency are concerned, the Sunshine Act only creates a criminal penalty for official action taken in violation of the Act. If convicted the local agency member may be sentenced to pay a fine and the costs of prosecution. Further, the local agency is specifically prohibited from reimbursing the offending member for the fine and costs resulting from his or her prosecution.”
The defendants referred to it as “axiomatic” that a summary criminal proceeding may not be initiated by a private citizen such as Scioscia, nor through the filing of a civil suit, and only a law enforcement official would be permitted to initiate such a prosecution.
“Thus, there is no cognizable basis for plaintiff to bring claim for violations of the Sunshine Act against the individual defendant council members, mayor and the director of administrative services. These individuals cannot be liable under the Sunshine Act other than for a summary criminal offense which of course, plaintiff has no authority or jurisdiction to prosecute,” the objections stated.
For multiple counts of violating the Sunshine Act, the plaintiff is seeking a declaration that the official action taken via email did indeed violate the Sunshine Act, permanent injunction to enjoin the Bellevue Borough Council from taking official action without opportunity for public discussion and comment at a public meeting, attorney’s fees, costs and such other and further relief that the Court deems just and appropriate.
The plaintiff is represented by Sean Logue of Sean Logue Law, in Carnegie.
The defendants are represented by Suzanne B. Merrick of Thomas Thomas & Hafer, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-007057
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com