COAL TOWNSHIP - Media law experts agree that a now-tabled policy proposal restricting citizens from audio recording the Coal Township Board of Commissioner's public agenda sessions would not hold up under judicial review.

The policy, set aside by the commissioners last week for further discussion, had also attempted to place restrictions on location of audio recording equipment during monthly voting sessions. It did not dispute the permissibility of recording the voting sessions.

It threatened potential punishment under wiretapping laws should a citizen not comply with the proposed provisions, but made no mention of video recording.

Agenda sessions are held two days before the voting sessions to discuss township business and create that month's agenda. Both sessions are advertised and are open to the public.

The experts say the state's Sunshine Act, the very law cited in the policy proposal, expressly permits citizen's to record any public meeting. Whether the governing body holds a vote or not is irrelevant.

"Work sessions are public meetings under the Sunshine Act, they have been advertised as such, and anyone attending has the right to record," said Melissa Melewsky, media law counsel, Pennsylvania NewsMedia Association. "This policy is patently unreasonable, blatantly discourages the right to record, and as a result, would not survive judicial scrutiny."

Coal Township solicitor Vincent Rovito disputes that. On Friday, he defended the proposal but said that since it was tabled there wasn't much to discuss.

"It's moot unless it comes up for vote again," Rovito said.

Rovito says the agenda sessions, which are non-voting meetings that routinely have a quorum of board members, don't rise to the definition of a "meeting" under the state's law. The law defines a meeting as "any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action."

Rovito says the discussions during the agenda sessions aren't "deliberation" as defined by the law since no official action is taken at the meeting: "The discussion of agency business held for the purpose of making a decision."

"The definition of meeting is not what happens in the (agenda) sessions. We do not take official action and we don't deliberate," Rovito said.

Right to record

Craig J. Staudenmaier, an expert of the state's Right to Know Law and a partner of the Nauman Smith law firm, Harrisburg, said the Sunshine Act allows government agencies to make reasonable rules to govern access and recordings. But those rules, he said, can't violate the law's intent.

He said discussing agency business at a public meeting is exactly that - deliberation.

"The public has not only a right to attend meetings but they have a right to record, whether it's audio or video. That's gotten lost somewhere," Staudenmaier said of the policy proposal.

"These meetings are where some of the most important work gets done, and the law recognizes this fact by requiring them to be public," Melewsky said.

"What exactly is going on at these work sessions if it is not a discussion of agency business?" she asked.

Tabled Thursday

The policy was proposed two months after township officials disputed language in an April 3 story in The News-Item regarding a water main replacement project. The officials said that criticism levied directly at the contractor was actually framed as a hypothetical situation. The tape recording of the meeting, however, backed that the criticism was specific and it was reported as such.

The policy had been listed on Thursday's meeting agenda as a resolution, meaning it need one majority vote to be enacted compared to an ordinance which requires two majority votes and public advertisement.

A reporter from The News-Item raised concerns about its legality during the meeting. The commissioners later tabled a vote on the policy, saying there were existing concerns to address. Rovito, who wrote the policy, was unable to attend Thursday's meeting.

A provision of the policy would have attempted to require citizens to keep files of audio recordings of Coal Township meetings for up to 12 months in the event the township would request a copy. It would pay for any cost incurred, the policy stated.

Melewsky called that part "the most egregious."

"That's just ridiculous; it's a government agency taking personal property, which raises serious constitutional issues," she said.

Staudenmaier agreed, saying the township has no authority to make such a request. He also questions whether it would have a right to require that citizens' recording equipment be placed in a specific location.

'Defies logic'

Gayle C. Sproul, a First Amendment attorney and a partner with Levine Sullivan Koch & Schulz, Philadelphia, called the policy "ill-considered and unconstitutional."

Since the meeting is open to the public, she said there can be no reasonable expectation of privacy by anyone in the room, be it citizen or elected official, thus ruling out wiretapping. The First Amendment bars any attempt of prior restraint of publication, which she says this policy would do if it were used to prevent the audio recording of an agenda session.

Rovito said courtesy was lacking since The News-Item reporter failed to announce he was recording the April agenda session.

Kim de Bourbon is the executive director of the Pennsylvania Freedom of Information Coalition, of which Sproul and Staudenmaier are both board members. She says wiretapping laws couldn't apply when it comes to the audio recording of a public meeting. Law exists to give people the right to record public meetings, meaning "wiretapping" is not occurring.

"Somehow, this proposal wants to recognize that a work session is a public meeting ... and yet, somehow, it shouldn't be subject to the full extent of the Sunshine Act," de Bourbon said.

"It defies logic to say that discussions held during a work session are somehow not discussions of agency business. The reason a board discusses agency business at any time is to eventually arrive at a decision on the matter, it can be presumed," she said.