Chambersburg school board accused Sunshine Act violations

(Chambersburg) — A school board candidate who lost last year’s election is accusing the Chambersburg Area School District board members of violating the state open meeting law – arguing they discussed public matters through email.

Stephen Gaugler, who lost a bid in last year’s primary election to sit on the local school board, leveled the accusation at the board meeting Wednesday night during a public comment period just before the board went into executive session to discuss litigation.

Gaugler accused board members of communicating with each other by email about Chambersburg Area Senior High School Glee Club’s Christmas concert in December, when the nativity scene – a 67-year tradition – was almost pulled from the program.

He said the violations occurred during seven days between Dec. 7 and Dec. 14, during which emails were passed back and forth between board members talking about a situation in which it was suggested that an organization that threatened to sue the district two years ago over the live nativity featured in the concert might follow through with the threat this year.

A review of emails obtained by Gaugler through a Right-to-Know request shows emails between CASD’s administration and Board President Dana Baker regarding concerns of potential litigation over an upcoming Glee Club concert. On Dec. 8, a hasty decision was made to pull a live nativity scene from the concert, then within eight hours another decision was made to keep the nativity.

Over the next few days after that decision, a number of emails went back and forth between various school board members discussing not just potential litigation, but ideas concerning changing the venue of the Christmas concert and creating a new glee club that is not tied to the school.

In one email, board member Alex Sharpe notified Baker and the board’s vice-president, Bill Lennartz that he felt the email exchanges violated the Sunshine Act.

“I hate to be a stickler for the rules, but when there is an email that goes out to the board regarding the nativity crisis and someone replies, we are violating the sunshine law,” he wrote. “I don’t mean to be a pain or to badger, but what we have been doing isn’t very transparent – a big reason of why we ran.”

Baker and Lennartz told a Public Opinion reporter Thursday they met with CASD Superintendent Joe Padasak and another district employee who is up to date on the Sunshine Act and concluded the email exchange didn’t violate the law.

An attorney for the Pennsylvania NewsMedia Association, however, said the email exchange could have violated the law.

Melissa Melewsky, media law counsel for PNA, said a quorum can be formed electronically – email, phone, text messages, Skype – and such communications would violate the Sunshine Act in those cases.

She said, however, that talking about litigation, potential litigation or the threat of litigation would probably be exempted because the law allows agencies to meet privately to discuss the litigation. The law does not require that, however.

It all has to do with whether the email exchanges constituted a quorum. At least five members would have had to participate in them to create that all-important quorum.

In the Glee Club exchanges, seven board members responded at least once to emails that had been sent to all nine members.

Email trail

The nativity issue was brought up in December after the district learned a judge in Indiana had issued an injunction to a school board in that state, ordering it to cancel a similar concert there while a case in which the legality of the inclusion of a live nativity scene in that district’s holiday concert was being decided.

The first email was in the form of a memo from the district’s solicitor, Jan Sulcove, dated Dec. 7 in which he alerted the administration to the Indiana court case.

On Dec. 8, Baker, the board president, sent an email to board members as well as Padasak and CASHS Music Department Chairman Dave Wenerd informing them of the situation and saying he had advised Padasak to pull the live nativity from the program.

Glee Club members were notified the same day, and by later afternoon the word was being passed to others in the community. By that time, Baker and other board members had received an email reply from Mark Schur, one of four new board members who had just taken office less than a week earlier.

Schur wanted details about the nature of the concert.

By about 10 p.m. that day Baker had called a Public Opinion reporter to say the earlier decision to eliminate the nativity from the program had been reversed and the show would go on as planned, without changes. He said he and Lennhartz, the board vice president, had made the decision.

He said the earlier decision had also been his and Padasak’s decision.

Copies of emails provided by Gaugler as the result of an open records request appear to support that statement.

Other board members participated in email conversations about the issue the next day, including Joan Smith, a board veteran who won re-election last year.

In an email time-stamped 7:32 p.m. Dec. 9, Smith suggested looking at the option of having a “real Christmas concert” at the Capitol Theatre next year “where we have complete control.” She said in that email that she had suggested that option last year.

Later the same evening, Alex Sharpe, one of the board’s new members, emailed Baker and Lennartz, warning them about violating the Sunshine Act by discussing the concert issue through email instead of in a public session.

“I know we are just discussing ‘issues’ but the practice is absolutely improper,” he wrote.

He said in that email that whether the district was going to go ahead with the concert or not was “agency business” and had to be discussed an open meeting if a quorum of the board was discussing it.

In less than an hour Lennartz had emailed Sharpe back, copying the email to Baker.

In that email, he suggested discussing the issue with Sharpe “in more detail” to decide the best way to address the issue “or other similar issues that surely surface in the future” without waiting for the full board to convene or violating the Sunshine Act.

Gaugler took Lennartz to task Wednesday night for that email, claiming Lennartz was implying he wanted to find a way to avoid following the letter of the law.

Other emails between board members and administration obtained by Gaugler in his Right-to-Know request included:

– Two emails from Wenerd to the board talking about the concert in general and later nixing Smith’s idea of having the concert at the Capitol because of the theater’s space limitations;

– A reply to that email by Carl Barton on Dec. 10 with a suggestion of his own as to a potential future solution to the problem;

– An email from Kevin Mintz, another new board member, to Padasak and fellow board members on Dec. 12 talking about how another school district had avoided liability and litigation in a case involving student activities of a political nature.

– An email Dec. 14 from Baker to Padasak and Lennartz suggesting that the board consider hiring the Rutherford Foundation or a similar group to talk to the board about the issue.

“I feel pretty confident this is not over,” he said in that email.

Looking forward

On Thursday Sharpe said he stands by his email warning fellow board members they could be violating the Sunshine Act, but pointed out that four of the members, including himself, were new to the board.

“I’m not sure that, aside from me, any of them knew they were violating the law,” he said.

He pointed out that a conversation between four board members would not constitute a violation, but he said when he has since talked to board members he has advised them to to try to limit emails that would go out to all board members.

“We are now aware of the potential for Sunshine Act violations and are taking steps to keep it in hand,” he said.

Gaugler said he still believes the board violated the law and the new board is not as transparent as a number of members have claimed.

“This is not about the nativity scene and whether it should or should not be included in this annual holiday event,” he told the board Wednesday night. “This is about exposing some of this board’s members and their claims of transparency for what they are…a fraud.”

*This article is part of a content-sharing partnership between WITF and theChambersburg Public Opinion.