NASD Sunshine Law Violation?

Last Monday during the closing public comments, NASD Board Director Tom Maher stated publicly that he believed the Board may have violated the Sunshine Law during executive session.

It was noted that the discussion involved the pool.

Board President Don Keller stated that 8 out of 9 didn't see it that way. The meeting ended shortly thereafter.

I got to wondering about what could be covered by the Sunshine Law related to the inclusion of the swimming pool at the MS during Executive Session prior to a Board Meeting and the day before the Act 34 hearing on the building and the pool's inclusion in the plans. Typically, a rule of thumb is that legal action and personnel are covered, all else should be discussed publicly.

Wanting to give each Board Member an opportunity to state if they in fact did side with Keller, I sent them each (not including Keller his position was clear) an email this week using each individual's address from the NASD web site (Director Audenreid's was returned as undeliverable) and asked that they reply by end of day Friday so I could write this post over the weekend.

I received two responses, from Angela Callie and Linda McDonald, out of the seven. I appreciate both of them responding and wonder why the others didn't, though I wasn't entirely surprised.

In short each said had Mr. Maher arrived on time he would have understood what was being discussed and why. Both were adamant that the Sunshine Law was not violated.

This brought me back to the situation with the Borough Council this summer. Until the issue was raised and discussed no one on Council even considered there was a violation because they trusted their legal counsel who said it was not a violation. Further review and consideration did not determine it was in fact a violation (the legal suit was dropped before a judge ruled), but Council took it upon themselves to change the way they did business to be more compliant instead of what one might call minimally compliant (though I'd still contend they violated the act).

If the Board members were told why what they were discussing was not a violation of the Sunshine Law as I am led to believe by the statement that Mr. Maher arrived late and did not understand the context of the discussion, I am led to believe that at the very least the Board was on the minimally compliant side of the equation.

Board member Callie noted, "The Sunshine Law permit us to consult with an attorney or other professional advisor's regarding information or strategies in connection with issues on identifiable complaints which could be expected to be filed."

This indicates that the NASD was expecting legal action in regard to the issue of the swimming pool or they were not being compliant.

I also contacted Director Maher, who raised the issue in the first place. Regardless of whether he is right or not, I do think it is admirable that he would broach the subject when in doubt, because the only accountability is based on the individuals in the room. If no one says anything, there can't be a violation. Even if he's wrong, it is good to know that the topic of the Sunshine Law and what it entails is being discussed and considered.

Here is what Mr. Maher had to say:

"The agenda distributed to board members for Executive Session has two sections. The first is titled "For Your Information" and the other "For Discussion". The For Discussion section of the January 8th executive session agenda had as item 1. Act 34 Pool Discussion.

When I interrupted this part of the executive session, alternatives for handling the pool decision were being proposed.

My position is this discusion was neither personnel nor legal related, the only two valid reasons for an executive session under the Sunshine Law. It should have been discussed in a public meeting."

Mr. Maher's position on this would seem rather hard to argue, yet eight of our nine elected officials support holding the conversation regarding this obviously heated topic behind closed doors and in apparent violation of the Sunshine Law.