locally owned since 1854

Middletown's hiring of law firm in closed session might run afoul of open-meeting law, attorney says

Press & Journal Staff

editor@pressandjournal.com

717-944-4628
Posted 4/16/18

The Middletown Borough Council agreed to hire a law firm in executive session and not with a public vote, which may run afoul of the Sunshine Act for open meetings, according to Melissa …

This item is available in full to subscribers.

Please log in to continue

Log in

Middletown's hiring of law firm in closed session might run afoul of open-meeting law, attorney says

Posted

The Middletown Borough Council agreed to hire a law firm in executive session and not with a public vote, which may run afoul of the Sunshine Act for open meetings, according to Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.

The council March 6 voted to hire Dilworth Paxson LLP for $400 an hour as a “special counsel” to advise on the Suez water and sewer lease situation. The borough went to court this week to try and stop the 11.5 percent surcharge recently added to water and sewer bills by Suez.

According to Borough Manager Ken Klinepeter, council approved hiring Dilworth Paxson on March 6, when it unanimously concurred on the decision in executive session, Klinepeter said. No public vote was taken.

The Press & Journal contacted Melewsky after being told that the decision was made behind closed doors.

Council President Damon Suglia on March 8 signed an engagement letter to formally hire the firm. The Press & Journal was granted the engagement letter through a Right-To-Know request. Suglia did not respond to a request for comment Friday or Monday.

“The Sunshine Act allows private deliberation about pending or threatened litigation, but the law never allows official action, such as votes, to take place outside a public meeting,” Melewsky said. All official action must occur at a public meeting and only after there has been an opportunity for meaningful public input, she said.

The surcharge is costing customers on average 20 cents a day, or about $72 a year, according to Suez, the private company that operates the borough’s water and sewer systems under a 50-year lease approved by council and the former water authority in 2014. The lease went into effect Jan. 1, 2015.

Minutes from the March 6 meeting state that a motion was made by council member Ben Kapenstein to “adjourn into executive session to discuss potential litigation.” It was seconded by council member Ian Reddinger and approved unanimously. The meeting was adjourned at 7:17 p.m., without any mention of a vote.

The meeting minutes of March 14, the next meeting, include a report on the March 6 executive session: “Council President Suglia noted the executive session held on March 6, 2018 was held to discuss potential litigation and personnel with no action being taken.”

It is not clear how much work Philadelphia-based Dilworth Paxson LLP has done for the borough. Klinepeter said the first bill would be paid after council approves the first invoice of the firm. The council agenda for April 17 included “Ratification of Dilworth Paxson” as an action item.

Case law that has developed under the Sunshine Act allows agencies to “cure” a suspected violation by doing it right the second time around, she said. That appears to be what will happen Tuesday night with the ratification. The meeting was held after the Press & Journal went to press.

“It’s a do-over, basically,” Melewsky said, and it is not likely that a court would find a violation and impose a penalty.

However, she added: “This ‘cure’ remedy should be a one-time thing, not a regular occurrence, and the agency undertaking a ‘cure’ should make the facts clear to the public and pledge better compliance in the future to restore and maintain the public trust.”

In more extreme cases, Melewsky said, the Sunshine Act allows a judge to impose criminal and civil penalties if a violation occurred, and a court could invalidate action found to violate the law. The court can impose injunctions on the agency to ensure future compliance, and level penalties in the form of attorney fees. From a criminal perspective, it is a crime to intentionally violate the law, with a first offense punishable with up to a $1,000 fine plus court costs.

“There is no oversight agency that polices Sunshine Act compliance; the law is citizen enforced, so it falls to the public to keep watch and seek redress for suspected violations,” she said.

The March 8 letter from Dilworth Paxson attorney Marc A. Feller states that the fees “will be a blended hourly rate of $400 for our attorneys. Jim Rodgers, a partner in our Litigation Department, and I will supervise the legal work for the borough. We will use other partners and associates as necessary and will try to reduce costs by utilizing associates who bill at lower rates to the extent practicable. This blended rate represents a substantial discount of our regular rate for partners. (My regular rate is $585, Jim Rodgers’ is $605. John Consevage of our Harrisburg office bills at $390 and other attorneys who may be used bill at lower rates).

The letter is signed by Suglia, but he was not in attendance at the March 6 meeting. Vice President Dawn Knull was in charge of the meeting.

The letter also states that the lease dispute “may result in litigation and arbitration that will entail significant attorney time.”