Columbia Borough.

A second Sunshine Act complaint against Columbia Borough Council was recently filed with the Lancaster County District Attorney’s Office.

While the previous complaint in December did not result in any action, the district attorney’s office warned the borough that it would investigate any subsequent alleged violations.

Brett Hambright, spokesman for the district attorney’s office, said his office received the most recent complaint and is looking into it.

Borough resident Heather Zink, who is running for a seat on council, filed the latest complaint after council voted June 11 to award a contract to Kathy McCool, of Lewistown, to provide a human resources audit for $2,500 and ongoing human resources consulting services for $75 an hour.

According to Zink, as well as a review of prior meeting minutes, council never discussed the contract, or the need for such services, in a public meeting.

In a statement read at a June 25 meeting, council solicitor Neil Albert said the board was justified in discussing the matter privately. He said such discussions are allowed by what he referred to as the “personnel exception” to the Sunshine Act, which allows council to discuss certain matters pertaining to employees in executive sessions not open to the public.

“Your personnel exception can be applied in two ways,” Albert said. “One, there is a person you are thinking of hiring or a person you are thinking of firing. We kind of get the idea those things are private. The other thing is with personnel issues in general being discussed.

“This is a twofer,” he said. “This falls within the exception two different ways.”

Unreasonable arguments

“The arguments regarding Sunshine Act compliance are unreasonable,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association. “They conflict with both the plain letter and the intent of the law.”

For starters, Melewsky said, the exception allowing certain personnel matters to be discussed behind closed doors applies only to discussions about employees, not consultants.

Albert and borough manager Rebecca S. Denlinger have claimed discussions about retaining McCool qualify for the exception because council also was considering McCool as a prospective employee.

A copy of McCool’s proposal, which is what was approved, includes a cover sheet which reads, “Human Resources Consulting.”

The proposal makes no reference to her being an employee and outlines a “fee structure” for her services. It does not list her employment history or her educational background, things typically found in resumes submitted for possible employment.

Prior to approving the proposal, council President Kelly Murphy said the borough also had solicited two other proposals for the services, one from the borough’s labor law attorneys and the other from a firm he did not name.

“That is quite a stretch,” said Melewsky, when told of Albert’s argument that the borough was considering McCool as a potential employee. “You don’t ask for proposals from potential employees. You ask for resumes and cover letters.”

Conflicting views

News that she was being considered as a possible employee also came as a surprise to McCool.

When asked in a telephone interview if there had been any talk about her being an employee instead of a consultant, McCool said, “Oh goodness, no. No, not at all. I have several other clients I do this kind of work for. That would not have even been something I would have considered.”

Albert also argued the executive session was justified because council’s discussions with McCool included a detailed discussion of personnel matters.

“That in itself was enough to bring it within the exception,” he said.

McCool, though, said her discussions with the borough did not involve talk about specific individual employees. Rather the talks were “broadstroke,” she said, about setting up an “HR structure,” including things like developing an employee handbook, revising and updating job descriptions and implementing an employee performance evaluation system.

Melewsky pointed out another issue with the argument that the executive session was justified because of discussions about individual employees.

“Employees who are being discussed in an executive session have rights,” Melewsky said. “When a personnel executive session is held to discuss an employee, they have the right to request it be done in an open meeting. In order to exercise that right, they have to be given notice. It’s a due process matter.”

When asked in an email if any employees were given such notice, Albert declined to answer. Instead he referred to his earlier statement, which did not address the matter, writing, “You have the Borough’s response.”

Columbia Borough Council will hold a work session at 6 p.m. Tuesday at the borough office, 308 Locust St.

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