Pmlsolicitors Digest, Vol 32, Issue 10
Glad everyone's comments were helpful.
William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570
william.warren@saul.commailto:william.warren@saul.com
-----Original Message-----
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Thursday, July 26, 2018 9:59 AM
To: pmlsolicitors@lists.imla.org
Subject: Re: [Pmlsolicitors] Pmlsolicitors Digest, Vol 32, Issue 10
I appreciate all of the feedback both here and offline. On the one hand, the conversation might be largely academic because it is rare that the member of the public to whom the info was given will "rat" on their source in the elected body. And there are questions about what the forum would be and how it would be determined that the violation actually happened. On the other hand, some of my people have come to realize that nothing bad happens to them if they share the details of executive session and they have essentially eviscerated any privacy attached to legitimate executive sessions. It is an interesting issue and I welcome any additional feedback. Thanks again for all of your input.
Joe
-----Original Message-----
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Sent: Wednesday, July 25, 2018 6:47 PM
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Subject: Pmlsolicitors Digest, Vol 32, Issue 10
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Today's Topics:
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Re: Disclosure of Executive Session discussions
(Warren Jr., William W.)
Message: 1
Date: Wed, 25 Jul 2018 22:44:14 +0000
From: "Warren Jr., William W." <william.warren@saul.commailto:william.warren@saul.com>
To: 'Josele Cleary' <jcleary@mhck.commailto:jcleary@mhck.com>, "'Joseph E. Bresnan'"
<jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com>>, "pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org>"
<pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org>>
Subject: Re: [Pmlsolicitors] Disclosure of Executive Session
discussions
Message-ID:
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Ms. Cleary?s analysis looks pretty solid. Would impeachment work for violating a court order????
If you go the discipline route, you?d probably be better off looking at something less (an injunction for violating the restriction, censure?)
William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.commailto:william.warren@saul.com%3cmailto:william.warren@saul.com>
From: Josele Cleary [mailto:jcleary@mhck.com]
Sent: Wednesday, July 25, 2018 6:27 PM
To: Warren Jr., William W.; 'Joseph E. Bresnan'; pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org
Subject: RE: Disclosure of Executive Session discussions
All,
Removal of a member of an elected body is not an option, and removal of a member of the board of a municipal authority is governed by the Municipality Authorities Act.
By way of further information, Section 904.1 of the Borough Code, 8 Pa. C.S. ?904.1, now provides:
(a) Rule. A borough officer who is elected or appointed to fill a vacancy in elective office may be removed from office as follows:
(1) By impeachment.
(2) By the Governor for reasonable cause after notice and full hearing on the advice of two-thirds of the Senate.
(3) on conviction of misbehavior in office or of an infamous crime.
(b) Title. Title to office of a borough officer under Subsection (a) may be tried by quo warranto.
Section 904.1 of the Borough Code reflects the fact that a member of Council is an elected officer, and the Pennsylvania Constitution provides in Article VI, Section 7, that elected officers are removed (i) upon conviction of misbehavior while in office or (ii) upon conviction of another infamous crime or (iii) for cause by the Governor after notice and a full hearing before and vote of two-thirds of the State Senate. This constitutional language applies to elected local officials as well as members of the state house and state senate. See Citizens Committee to Recall Rizzo v. Board of Elections, 470 Pa. 1, 367 A.2d 232 (1976). In Petition to Recall Reese, 524 Pa. 114, 665 A.2d 1162 (1995), the Pennsylvania Supreme Court held that the recall provisions of the Kingston Home Rule Charter violated Article 6, Section 7, of the Pennsylvania Constitution. The Supreme Court reaffirmed that Article 6, Section 7, "indisputably applies to all elected officers, and sets forth in unambiguous language, the exclusive method" or removing an elected municipal official. 665 A.2d at 1167.
The Pennsylvania Constitution sets forth minimum criteria for elected officials. Article II, Section 7, of the Pennsylvania Constitution provides:
No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth.
This constitutional provision is applicable to elected local officials as well as state officials. See Peti?tion of Hughes, 516 Pa. 90, 532 A.2d 298 (1987).
Article II, Section 7, of the Pennsylvania Constitution provides that a person is not eligible to hold office if that person is convicted of the identified crimes. The fact that a person was charged with crimes does not bar that person from holding office. Similarly, even if the person entered into a plea bargain and pleaded guilty to lesser charges in exchange for more serious charges being dropped, the person was not convicted of the more serious charges. The only crimes which may be con?sidered to determine whether such person is eligible to hold office are those for which the person has been convicted by a court of law or to which he has pled guilty.
Commonwealth Court en banc interpreted the phrase ?other infamous crime? as follows:
In Hughes our Supreme Court held that ?although the term ?infamous crimes? is not self-defining, when the language of Article II, Section 7 enumerates the crimes of bribery, embezzlement of public monies, and perjury, followed by the words ?or other infamous crimes?, the necessary implication is that the three enumerated crimes are infamous?. A conviction of an infamous crime is likewise grounds for disqualification from holding public office.
Our Supreme Court has further defined an infamous crime as: ?one which upon conviction rendered a person incompetent to be a witness or juror.?
Commonwealth ex rel. Corbett v. Large, 715 A.2d 1226, 1228 (Pa. Cmwlth. 1998) (citations omitted). Commonwealth Court held that Large?s conviction for swearing falsely under oath before the State Ethics Commission had the same elements as perjury and thus constituted an infamous crime.
In an opinion issued in 2011, the Pennsylvania Supreme Court essentially agreed that conviction of crimes which the Pennsylvania Legislature has classified as felonies are infamous crimes. Commonwealth ex rel. Kearney v. Rambler, 613 Pa. 32, 32 A.3d 658 (2011). In that case the district attorney had filed a quo warranto action seeking to remove the mayor of Wrightsville Borough after discovering that he had earlier pleaded guilty to a federal crime relating to using the mails for extortion. The Supreme Court held that that particular federal crime constituted an infamous crime and the mayor could not hold office.
Disclosing information from an executive session is not grounds for removal.
Josele Cleary, Esquire
Morgan, Hallgren, Crosswell & Kane, P.C.
700 N Duke Street
PO Box 4686
Lancaster, PA 17604-4686
Phone: 717-299-5251
Fax: 717-299-6170
http://www.mhck.com<http://www.mhck.com/http://www.mhck.com/>
The information contained in this message is attorney privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via the U.S. Postal Service. Thank you.
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Warren Jr., William W.
Sent: Wednesday, July 25, 2018 5:49 PM
To: 'Joseph E. Bresnan'; pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org%3cmailto:pmlsolicitors@lists.imla.org>
Subject: Re: [Pmlsolicitors] Disclosure of Executive Session discussions
Joe,
I don?t see any responses to your email, so I thought I?d weigh in.
For the view of the press, take a look at http://panewsmedia.org/newspublications/news/2017/02/09/legal-hotline-executive-session-confidentiality<http://panewsmedia.org/newspublications/news/2017/02/09/legal-hotline-executive-session-confidentialityhttp://panewsmedia.org/newspublications/news/2017/02/09/legal-hotline-executive-session-confidentiality>. Not surprisingly, the view there is that the First Amendment controls the right of a board member to disclose information from an executive session.
The contrary view has been expressed by a colleague of mine who has advised a major educational institution covered by the Sunshine Act. The Act contemplates that an organization needs from time to time to have privileged and confidential discussions. Actions that breach that statutory directive should be actionable. There is indeed a First Amendment issue, but the behavior of the board member should be able to constrained by the organization?s governing documents ? policy statements, ordinances, etc. ? imposing or affirming a confidentiality obligation. It could be argued that a council member also owes a fiduciary duty to the organization.
Describing the nature of the disciplinary action is yet another hurdle. Removal would probably be too extreme. Based on the policy or ordinance, council might consider taking disciplinary action. In the alternative, council might consider seeking judicial relief first, alleging a violation of the Act, council?s policy or ordinance, etc. That would put the matter in the hands of a judge to weigh the competing considerations. This is pretty clearly uncharted territory. Remember that successful civil rights claims can be accompanied by attorney?s fee awards.
William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.commailto:william.warren@saul.com%3cmailto:william.warren@saul.com>
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Wednesday, July 25, 2018 12:14 PM
To: pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org%3cmailto:pmlsolicitors@lists.imla.org>
Subject: [Pmlsolicitors] Disclosure of Executive Session discussions
EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.
Listmates,
I would be interested in knowing if any of your municipalities have adopted an ordinance that addresses board members disclosing executive session matters to the public. Roberts Rules makes general reference to the right to punish but I am wondering whether anyone has attempted something with more teeth to it.
Thank you,
Joe Bresnan
[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
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This is an interesting issue and one that I've seen cross other listservs. It's also an issue that I've experienced as my recollection was that when we had a meeting with our council we fully expected the next edition of the Washington Post to have some mention of what we discussed in confidence in an article. That said, I'll try to find some suggestions that I've seen in the past and some cases. Generally, though, censure is one measure that some communities use to at least call out the offending council person. How effective a censure motion and measure might be is probably local and based on how much political support the person has. I think there are strong arguments that can be made that the First Amendment may not be a basis for reliance. A SCT case from a couple years ago involving the Nevada Ethics Commission censure of a councilmember seems to provide support for excepting council speech and regulation of councilmembers for their speech from the full protection of the Amendment. I'll try to get you the cite and get it out there. I believe I heard of some communities censure and then bar a councilmember from attending meetings where sensitive information is shared based on the censure, but obviously, that could be tricky. From a practical standpoint getting buy-in by the members seems to be the key and helping them recognize that each of them could be embarrassed by a disclosure another makes if they can't all agree to maintain the confidence in the meeting. Whether a disclosure of privileged information amounts to a breach of a fiduciary relationship for which a member might have personal liability could be considered if not as a practical recourse, but as a threat. This is one of the thorniest problems most of us who counsel local governments face and it's helpful to see the discussion.
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Charles W Thompson, Jr
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From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Warren Jr., William W.
Sent: Thursday, July 26, 2018 11:40 AM
To: 'Joseph E. Bresnan' jbresnan@dischellbartle.com; pmlsolicitors@lists.imla.org
Subject: [Pmlsolicitors] Pmlsolicitors Digest, Vol 32, Issue 10
Glad everyone's comments were helpful.
William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570
william.warren@saul.commailto:william.warren@saul.com
-----Original Message-----
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Thursday, July 26, 2018 9:59 AM
To: pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org
Subject: Re: [Pmlsolicitors] Pmlsolicitors Digest, Vol 32, Issue 10
I appreciate all of the feedback both here and offline. On the one hand, the conversation might be largely academic because it is rare that the member of the public to whom the info was given will "rat" on their source in the elected body. And there are questions about what the forum would be and how it would be determined that the violation actually happened. On the other hand, some of my people have come to realize that nothing bad happens to them if they share the details of executive session and they have essentially eviscerated any privacy attached to legitimate executive sessions. It is an interesting issue and I welcome any additional feedback. Thanks again for all of your input.
Joe
-----Original Message-----
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of pmlsolicitors-request@lists.imla.orgmailto:pmlsolicitors-request@lists.imla.org
Sent: Wednesday, July 25, 2018 6:47 PM
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Subject: Pmlsolicitors Digest, Vol 32, Issue 10
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Today's Topics:
-
Re: Disclosure of Executive Session discussions
(Warren Jr., William W.)
Message: 1
Date: Wed, 25 Jul 2018 22:44:14 +0000
From: "Warren Jr., William W." <william.warren@saul.commailto:william.warren@saul.com>
To: 'Josele Cleary' <jcleary@mhck.commailto:jcleary@mhck.com>, "'Joseph E. Bresnan'"
<jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com>>, "pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org>"
<pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org>>
Subject: Re: [Pmlsolicitors] Disclosure of Executive Session
discussions
Message-ID:
<DC8BEC2112F0204486612CC2D6A02C1BA3CC8694@EXMB05H.Firm.SaulEwing.net<mailto:DC8BEC2112F0204486612CC2D6A02C1BA3CC8694@EXMB05H.Firm.SaulEwing.net>>
Content-Type: text/plain; charset="utf-8"
Ms. Cleary?s analysis looks pretty solid. Would impeachment work for violating a court order????
If you go the discipline route, you?d probably be better off looking at something less (an injunction for violating the restriction, censure?)
William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.commailto:william.warren@saul.com%3cmailto:william.warren@saul.com>
From: Josele Cleary [mailto:jcleary@mhck.com]
Sent: Wednesday, July 25, 2018 6:27 PM
To: Warren Jr., William W.; 'Joseph E. Bresnan'; pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org
Subject: RE: Disclosure of Executive Session discussions
All,
Removal of a member of an elected body is not an option, and removal of a member of the board of a municipal authority is governed by the Municipality Authorities Act.
By way of further information, Section 904.1 of the Borough Code, 8 Pa. C.S. ?904.1, now provides:
(a) Rule. A borough officer who is elected or appointed to fill a vacancy in elective office may be removed from office as follows:
(1) By impeachment.
(2) By the Governor for reasonable cause after notice and full hearing on the advice of two-thirds of the Senate.
(3) on conviction of misbehavior in office or of an infamous crime.
(b) Title. Title to office of a borough officer under Subsection (a) may be tried by quo warranto.
Section 904.1 of the Borough Code reflects the fact that a member of Council is an elected officer, and the Pennsylvania Constitution provides in Article VI, Section 7, that elected officers are removed (i) upon conviction of misbehavior while in office or (ii) upon conviction of another infamous crime or (iii) for cause by the Governor after notice and a full hearing before and vote of two-thirds of the State Senate. This constitutional language applies to elected local officials as well as members of the state house and state senate. See Citizens Committee to Recall Rizzo v. Board of Elections, 470 Pa. 1, 367 A.2d 232 (1976). In Petition to Recall Reese, 524 Pa. 114, 665 A.2d 1162 (1995), the Pennsylvania Supreme Court held that the recall provisions of the Kingston Home Rule Charter violated Article 6, Section 7, of the Pennsylvania Constitution. The Supreme Court reaffirmed that Article 6, Section 7, "indisputably applies to all elected officers, and sets forth in unambiguous language, the exclusive method" or removing an elected municipal official. 665 A.2d at 1167.
The Pennsylvania Constitution sets forth minimum criteria for elected officials. Article II, Section 7, of the Pennsylvania Constitution provides:
No person hereafter convicted of embezzlement of public moneys, bribery, perjury or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth.
This constitutional provision is applicable to elected local officials as well as state officials. See Peti?tion of Hughes, 516 Pa. 90, 532 A.2d 298 (1987).
Article II, Section 7, of the Pennsylvania Constitution provides that a person is not eligible to hold office if that person is convicted of the identified crimes. The fact that a person was charged with crimes does not bar that person from holding office. Similarly, even if the person entered into a plea bargain and pleaded guilty to lesser charges in exchange for more serious charges being dropped, the person was not convicted of the more serious charges. The only crimes which may be con?sidered to determine whether such person is eligible to hold office are those for which the person has been convicted by a court of law or to which he has pled guilty.
Commonwealth Court en banc interpreted the phrase ?other infamous crime? as follows:
In Hughes our Supreme Court held that ?although the term ?infamous crimes? is not self-defining, when the language of Article II, Section 7 enumerates the crimes of bribery, embezzlement of public monies, and perjury, followed by the words ?or other infamous crimes?, the necessary implication is that the three enumerated crimes are infamous?. A conviction of an infamous crime is likewise grounds for disqualification from holding public office.
Our Supreme Court has further defined an infamous crime as: ?one which upon conviction rendered a person incompetent to be a witness or juror.?
Commonwealth ex rel. Corbett v. Large, 715 A.2d 1226, 1228 (Pa. Cmwlth. 1998) (citations omitted). Commonwealth Court held that Large?s conviction for swearing falsely under oath before the State Ethics Commission had the same elements as perjury and thus constituted an infamous crime.
In an opinion issued in 2011, the Pennsylvania Supreme Court essentially agreed that conviction of crimes which the Pennsylvania Legislature has classified as felonies are infamous crimes. Commonwealth ex rel. Kearney v. Rambler, 613 Pa. 32, 32 A.3d 658 (2011). In that case the district attorney had filed a quo warranto action seeking to remove the mayor of Wrightsville Borough after discovering that he had earlier pleaded guilty to a federal crime relating to using the mails for extortion. The Supreme Court held that that particular federal crime constituted an infamous crime and the mayor could not hold office.
Disclosing information from an executive session is not grounds for removal.
Josele Cleary, Esquire
Morgan, Hallgren, Crosswell & Kane, P.C.
700 N Duke Street
PO Box 4686
Lancaster, PA 17604-4686
Phone: 717-299-5251
Fax: 717-299-6170
https://protect-us.mimecast.com/s/q86kC68mGDI0XKgvT6Ht60?domain=mhck.com<https://protect-us.mimecast.com/s/MhQMC73nYEiVLk0KIBsPXB?domain=mhck.comhttp://www.mhck.com/>
The information contained in this message is attorney privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via the U.S. Postal Service. Thank you.
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Warren Jr., William W.
Sent: Wednesday, July 25, 2018 5:49 PM
To: 'Joseph E. Bresnan'; pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org%3cmailto:pmlsolicitors@lists.imla.org>
Subject: Re: [Pmlsolicitors] Disclosure of Executive Session discussions
Joe,
I don?t see any responses to your email, so I thought I?d weigh in.
For the view of the press, take a look at https://protect-us.mimecast.com/s/3sI0C82oWGsP9RA0CM2zpC?domain=panewsmedia.org<https://protect-us.mimecast.com/s/3sI0C82oWGsP9RA0CM2zpC?domain=panewsmedia.orghttp://panewsmedia.org/newspublications/news/2017/02/09/legal-hotline-executive-session-confidentiality>. Not surprisingly, the view there is that the First Amendment controls the right of a board member to disclose information from an executive session.
The contrary view has been expressed by a colleague of mine who has advised a major educational institution covered by the Sunshine Act. The Act contemplates that an organization needs from time to time to have privileged and confidential discussions. Actions that breach that statutory directive should be actionable. There is indeed a First Amendment issue, but the behavior of the board member should be able to constrained by the organization?s governing documents ? policy statements, ordinances, etc. ? imposing or affirming a confidentiality obligation. It could be argued that a council member also owes a fiduciary duty to the organization.
Describing the nature of the disciplinary action is yet another hurdle. Removal would probably be too extreme. Based on the policy or ordinance, council might consider taking disciplinary action. In the alternative, council might consider seeking judicial relief first, alleging a violation of the Act, council?s policy or ordinance, etc. That would put the matter in the hands of a judge to weigh the competing considerations. This is pretty clearly uncharted territory. Remember that successful civil rights claims can be accompanied by attorney?s fee awards.
William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.commailto:william.warren@saul.com%3cmailto:william.warren@saul.com>
From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Wednesday, July 25, 2018 12:14 PM
To: pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.orgmailto:pmlsolicitors@lists.imla.org%3cmailto:pmlsolicitors@lists.imla.org>
Subject: [Pmlsolicitors] Disclosure of Executive Session discussions
EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.
Listmates,
I would be interested in knowing if any of your municipalities have adopted an ordinance that addresses board members disclosing executive session matters to the public. Roberts Rules makes general reference to the right to punish but I am wondering whether anyone has attempted something with more teeth to it.
Thank you,
Joe Bresnan
[Dischell, Bartle & Dooley]<https://protect-us.mimecast.com/s/qnEeC9rpGJuN8B6XtPysJL?domain=dischellbartle.comhttp://dischellbartle.com/>
Joseph E. Bresnan | Partner
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The case I was thinking of from the SCT was Nevada Comm'n on Ethics v. Carrigan, 564 U.S. 117 (2011). While it doesn't specifically address whether a First Amendment right might exist to discuss matters outside a council meeting to relate the content of an executive session, I'd be making the argument that it can be extended to long-standing regulations of such conduct that have been in place similar to the recusal regulations at issue in Carrigan.
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