Cumberland Valley School District officials say they met the spirit of the Sunshine Act in the way they handled Monday night’s school board meeting.
That was the word Friday from Superintendent David Christopher, who disagreed with a legal opinion of the open meetings law made by Melissa Melewsky, a media law counsel with the Pennsylvania NewsMedia Association.
“We tried to provide a very robust opportunity for individuals to provide comment,” Christopher said. “We made a very good faith effort to make sure everyone had access to the meeting.”
The Pennsylvania Sunshine Act “requires agencies to deliberate and take official action on agency business in an open and public meeting. It requires that meetings have prior notice, and that the public can attend, participate, and comment before an agency takes that official action.”
The refusal by some people to wear masks during a prior CV school board meeting as well as crowd control prompted the district to change the way the board received public comment during Monday’s meeting when it voted 8-1 not to rescind its health and safety plan.
Instead of opening the floor to an in-person audience Monday, the board only accepted comments made through Zoom or by written electronic communications. In an advisory posted on its website days before, the district announced Monday’s meeting could only be viewed by the public on livestream.
“That’s a problem,” Melewsky told The Sentinel. “It does raise some Sunshine Act compliance issues. There’s no question about that.”
Melewsky’s interpretation is that the act requires that all public meetings take place between elected officials and their constituents in the same physical space. “The act does not permit virtual public meetings,” she said.
While Pennsylvania’s Act 15 of 2020 allowed school and municipal boards to hold virtual meetings during the pandemic, provisions under that law expired on June 24 when the state General Assembly ended Gov. Tom Wolf’s emergency disaster declaration.
While case law allows school officials to participate in meetings virtually, that’s only if the officials can see and hear everybody in the meeting room, Melewsky said. “There is no case law that says an agency can exclude the public from a meeting and replace it with a virtual participation method only.”
Christopher said the switch to a virtual meeting format was necessary to protect public health and safety.
The decision to allow only Zoom or electronic comments was also made in coordination with local law enforcement officials who had concerns about crowd control and general safety, an advisory posted on the school’s website in advance of the meeting read. The changes allow the district to offer the public the opportunity to comment while minimizing disruptions in the meeting after the public comment period is over.
“We believe, by utilizing this plan, we will be able to hear all voices in our community and reduce the likelihood of conduct arising between groups with opposing positions that has led to violent and aggressive interactions in many other district across the state and the nation,” the advisory read.
In the weeks leading up to the meeting, the district received an outpouring of requests from people wishing to comment on the health and safety plan. Many of those making a request had safety concerns given that there were at least 20 people at the Sept. 7 meeting who refused to wear a mask despite an order by the Pennsylvania Department of Health.
Those people were advised by school officials that failure to comply with the mask protocol could impact their future ability to offer public comments live, Christopher said Friday. The posted advisory said some people viewed the refusal to comply by others as a barrier to their attendance at future meetings.
Rather than let that happen, the district made arrangements for the public to view the Sept. 20 meeting through livestream and to provide comment through Zoom, Christopher said. Accommodations were made for residents without internet access to view the livestream at Mountain View Middle School, he said. There was also an opportunity for residents gathered there to comment through a remote connection.
The volume of comments received that evening offers proof that the district was justified in making the switch from an in-person meeting to a virtual option, Christopher said. Forty-nine people commented through Zoom during the two public comment periods and the board received more than 200 written comments.
From a public access point of view, it’s wonderful when a government agency livestreams a meeting or allows for public input through Zoom or some other virtual platform, Melewsky said. However, this approach is only good when the virtual methods are in addition to a traditional in-person meeting, she said.
That was not the case at Cumberland Valley Monday when the only people allowed in the board room were school board members and district administrators.
“Sharing space with your elected officials is a necessary component of government,” Melewsky said. “It’s just too simple for a public official to click the mute button on Zoom when they are tired of listening to you.
“We are not a fully connected society,” she said. “There are a significant number of Pennsylvanians who are simply not able to use the internet either through a lack of physical access, a lack of technology or various socio-economic reasons.”
Even if a person has access, there have been cases of technical difficulties involving the audio and video portions of virtual meetings, Melewsky said.
Phyllis Zimmerman covered the Sept. 20 meeting as a correspondent for The Sentinel. She confirmed that the meeting was available for viewing through livestream on YouTube.
“It showed the whole board,” Zimmerman said about the livestream. “It was a fuzzy group shot. You couldn’t really tell who was talking. I had trouble hearing everything that was said.
“I recognized the voices of board members because I have been covering them for a while,” Zimmerman said. “For the average person, not familiar with the board, it would have been extremely difficult to discern who was speaking unless somebody gestured with their hand or something.”
During the public comment period, the livestream view frame had a screenshot of the board agenda with a timer clicking off the three-minutes allotted to each speaker.
In a phone interview Friday, Christopher said the district could do more to improve the livestream reception.
Aside from requiring meetings to be in-person, the Sunshine Act allows school boards to enact reasonable rules of conduct governing meetings and public comment periods, Melewsky said.
Based on her interpretation, “reasonable rules” could include requiring the public to wear masks during a pandemic. She said the act gives school officials the latitude to ask a person to leave or to eject a person from the meeting for defiance of the rules.
Christopher said Melewsky’s opinion does not take into account the language of the Department of Health directive that prohibits school officials from using force to remove anyone who refuses to comply with the mask protocol.
“Unfortunately, forcing compliance with the order as a condition of attendance … has been unsuccessful in nearly all Pennsylvania districts, or has resulted in the need to forcibly involve law enforcement,” the posted advisory read. “We do not believe that continuing to allow noncompliance … or forcibly involving law enforcement are reasonable approaches if either can be avoided.”