Shickshinny council's rules draw media group criticism
January 07, 2011 Luzerne Co. | Government transparency
By STEVE MOCARSKY
The [Wilkes-Barre] Times-Leader
SHICKSHINNY – A newspaper attorney said an ordinance borough council passed recently could impinge on a councilwoman’s free speech rights and hinder her ability to perform her duties.
Council in December passed a resolution “Imposing Protocols Relating to Borough Office Management and Confidential Communications” that, among other things, requires communications between council members and borough employees to be respectful and non-discriminatory.
But Councilwoman Francene Tearpock-Martini believes the ordinance is retaliatory because she reported alleged criminal behavior by relatives and/or friends of council majority members to the state police. She said parts of the ordinance prevent her from carrying out her duties as a councilwoman.
The ordinance in one section prohibits the borough secretary from providing individual council members with information relating to personnel matters, which includes information in personnel files, without a directive from a majority of council.
“This seems unusual, especially when one considers that boards can be quite contentious based on partisan issues and party affiliation,” said Melissa Bevan Melewsky, media law counsel for the Pennsylvania Newspaper Association. “This kind of provision could allow a majority of members to stonewall a minority member from adequately performing the functions of his/her elected office.”
Another section of the ordinance directs that council members “maintain the confidentiality of communications” between themselves and borough-retained attorneys relating to litigation and personnel issues.
“This also seems like an unusual provision,” Bevan Melewsky said. “The attorney is bound by the attorney-client privilege, not the members of council.”
Likewise, the Sunshine Act and Right to Know Law do not require elected officials to keep litigation and personnel matters private; the laws simply allow them to do so when it serves the interest of the agency, she said.
“They are free to speak about advice rendered by their attorney if they choose. Publicly discussing these issues may not be the most advisable thing to do, especially during pending litigation. But ultimately, there are Constitutional protections afforded to public employees who speak publicly about matters of public interest.” Bevan Melewsky said.
Borough Solicitor Jeff Malak said the ordinance was written by attorney Chris Gerber, who represents the borough’s insurance company, which became involved after Borough Secretary Melissa Weber filed a complaint against the borough with the Pennsylvania Human Relations Commission last year.
Weber claimed Tearpock-Martini retaliated against her after she complained to council that Tearpock-Martini was creating a hostile work environment by making discriminatory and vulgar remarks about certain borough employees in her presence.
Tearpock-Martini denied any such behavior.
Gerber declined comment.
Malak said he doesn’t believe the ordinance was designed to impede Tearpock-Martini in her role as a councilwoman, but rather to protect her and the borough from liability. He said the resolution is not a law and there is no penalty if someone chooses to disregard it.
Bevan Melewsky said it appears that Gerber wants to limit contact between the secretary and councilwoman “in order to preserve the board’s and the councilwoman’s position during the PHRC process and, at the very least, to prevent any additional basis for complaint.” But, she said, such a restriction cannot last forever.
“There needs to be some kind of proper, working relationship between council members and the borough secretary; their jobs are fundamentally intertwined,” she said.
The [Wilkes-Barre] Times-Leader
SHICKSHINNY – A newspaper attorney said an ordinance borough council passed recently could impinge on a councilwoman’s free speech rights and hinder her ability to perform her duties.
Council in December passed a resolution “Imposing Protocols Relating to Borough Office Management and Confidential Communications” that, among other things, requires communications between council members and borough employees to be respectful and non-discriminatory.
But Councilwoman Francene Tearpock-Martini believes the ordinance is retaliatory because she reported alleged criminal behavior by relatives and/or friends of council majority members to the state police. She said parts of the ordinance prevent her from carrying out her duties as a councilwoman.
The ordinance in one section prohibits the borough secretary from providing individual council members with information relating to personnel matters, which includes information in personnel files, without a directive from a majority of council.
“This seems unusual, especially when one considers that boards can be quite contentious based on partisan issues and party affiliation,” said Melissa Bevan Melewsky, media law counsel for the Pennsylvania Newspaper Association. “This kind of provision could allow a majority of members to stonewall a minority member from adequately performing the functions of his/her elected office.”
Another section of the ordinance directs that council members “maintain the confidentiality of communications” between themselves and borough-retained attorneys relating to litigation and personnel issues.
“This also seems like an unusual provision,” Bevan Melewsky said. “The attorney is bound by the attorney-client privilege, not the members of council.”
Likewise, the Sunshine Act and Right to Know Law do not require elected officials to keep litigation and personnel matters private; the laws simply allow them to do so when it serves the interest of the agency, she said.
“They are free to speak about advice rendered by their attorney if they choose. Publicly discussing these issues may not be the most advisable thing to do, especially during pending litigation. But ultimately, there are Constitutional protections afforded to public employees who speak publicly about matters of public interest.” Bevan Melewsky said.
Borough Solicitor Jeff Malak said the ordinance was written by attorney Chris Gerber, who represents the borough’s insurance company, which became involved after Borough Secretary Melissa Weber filed a complaint against the borough with the Pennsylvania Human Relations Commission last year.
Weber claimed Tearpock-Martini retaliated against her after she complained to council that Tearpock-Martini was creating a hostile work environment by making discriminatory and vulgar remarks about certain borough employees in her presence.
Tearpock-Martini denied any such behavior.
Gerber declined comment.
Malak said he doesn’t believe the ordinance was designed to impede Tearpock-Martini in her role as a councilwoman, but rather to protect her and the borough from liability. He said the resolution is not a law and there is no penalty if someone chooses to disregard it.
Bevan Melewsky said it appears that Gerber wants to limit contact between the secretary and councilwoman “in order to preserve the board’s and the councilwoman’s position during the PHRC process and, at the very least, to prevent any additional basis for complaint.” But, she said, such a restriction cannot last forever.
“There needs to be some kind of proper, working relationship between council members and the borough secretary; their jobs are fundamentally intertwined,” she said.
