Pa. City Must Postpone Meeting Amid Suit Over Virtual Access

By Matthew Santoni
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Law360 (March 3, 2021, 6:29 PM EST) -- The city council in McKeesport, Pennsylvania, can't hold its monthly meeting this week until a state court has weighed in on whether it has done enough to comply with open-meetings laws during the pandemic, a judge ruled Wednesday.

With a group of residents claiming in a lawsuit that the Pittsburgh suburb's pandemic precautions had shut them out of participating in official council meetings, Allegheny County Court of Common Pleas Judge John McVay said he couldn't allow the council to try its suggested compromise of streaming the meeting online and accepting public input via written or emailed comments — at least not until he was more certain it complied with Pennsylvania's Sunshine Act and Act 15, the emergency rules for conducting local government business during the COVID-19 pandemic.

"I can't allow a Friday meeting without further argument or briefing," Judge McVay said in Wednesday's video hearing on the residents' motion for a preliminary injunction. "I don't want to take a chance authorizing a potential violation of the Sunshine Act and Act 15 without briefing."

McKeesport City Solicitor J. Jason Elash had suggested that the meeting be streamed online with written comments submitted in person or by email by the afternoon before the meeting, which had originally been scheduled for Wednesday night. He then said the meeting could be postponed to Friday to allow for 48 hours' notice under the open-meeting law, but the judge said he couldn't approve such notice until he was more sure that the law didn't require more meaningful opportunity for public participation.

Residents Valian Walker Montgomery, Courtney Thompkins, Tracey Jordan and Janina Riley had filed a lawsuit against McKeesport and its council Monday, claiming the lack of virtual access to meetings had violated the Sunshine Act. They had wanted to attend the council's January meeting to speak about police conducting searches after an officer was shot in December but had found the council chambers closed and locked while the meeting occurred, citing the pandemic as the reason for precluding in-person public participation.

After the American Civil Liberties Union of Pennsylvania reached out on behalf of the residents, the suit said the mayor, city council and Elash promised to create a plan for public participation before the February meeting. But the complaint said the council never shared a plan and it canceled the February meeting with the March meeting scheduled for Wednesday night.

The McKeesport suit was one of two cases filed in two days seeking virtual access to proceedings that had been open to the public prepandemic: A group of civil rights watchdogs had sued Court of Common Pleas Judge Anthony Mariani in federal court Tuesday over his insistence that court observers had to come to his courtroom in person, even as attorneys, witnesses and defendants could participate virtually.

Judge McVay initially held a hearing Tuesday on the McKeesport residents' request for an injunction, but continued it to Wednesday while the city tried to put together a compromise. Their plan was to stream the meeting online at Tube City Almanac, a community news site, and the deadline for public comments that would be read at the meeting would be extended to 5:30 p.m., Elash said.

"We've basically given in on everything they're asking us to do," Elash said. "This is what's provided in Act 15; I don't think the council will change its mind."

But that wasn't good enough, said attorney Allison Burdette of Saul Ewing Arnstein & Lehr, representing the residents: The law required more "meaningful" public participation than sending written comments ahead of time — which might not be possible for people who lacked the ability to submit them in writing to the city offices or email officials, Burdette said.

"The plaintiffs would like to have something more than what's on the table right now," she said. "We're a year into the pandemic, everyone has gotten used to the new way of life and conducting remote meetings. … The city has had over a month to consider these options."

In testimony presented for the injunction hearing Wednesday, the ACLU suggested the city try TurboBridge, a phone conferencing service the civil rights organization had used during the pandemic that allowed up to 1,000 participants per call. The service would cost the city about $10 per month, could be run from any computer with internet access, and the public could participate for free by phone, said Jenna McElroy, an ACLU staff member familiar with the system.

Judge McVay also suggested Zoom or Microsoft Teams, services the court had been using to conduct hearings as the pandemic forced the cancellation of many in-person proceedings and jury trials.

Elash said he would be in touch with council members with the teleconferencing proposal and would submit a brief Thursday morning on the council's position, but he had balked at the idea of more complicated video conferencing at the initial hearing and claimed the city was teetering on the edge of the state's intervention program for municipalities in financial distress.

"We would have had all the meetings on Zoom if we had the technology to do that," Elash said Tuesday. "We're on the brink of Act 47 [municipal financial distress]; we can't go out and buy a brand-new computer system to make this happen."

The McKeesport residents are represented by Charles Kelly, Michael Joyce, Allison Burdette and John A. Marty of Saul Ewing Arnstein & Lehr LLP and Witold J. Walczak of the ACLU.

McKeesport and its city council are represented by City Solicitor John Jason Elash.

The case is Montgomery et al. v. City of McKeesport et al., case number GD-21-001723, in the Court of Common Pleas of Allegheny County, Pennsylvania.

--Editing by Andrew Cohen.

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