A resolution restricting East Berlin Borough Council members’ ability to communicate with employees “is likely constitutionally infirm,” Pennsylvania NewsMedia Association Media Law Counsel Melissa Melewsky wrote in an email Thursday.

“A chain of command is one thing, prohibition on an elected official’s right to speak about matters of public concern is quite another. Government cannot generally prohibit an elected official’s right to speak on matters of public concern,” Melewsky wrote.

A divided council Wednesday passed the resolution, which prohibits most direct communications between council members and the borough’s secretary/treasurer or solicitor. Instead, it requires most communications to be funneled through the council president, vice president, or mayor “in order to streamline reporting and management of the borough.”

President Robbie Teal said the decision to draft the resolution occurred during a closed executive session on personnel matters. The meeting was called May 30 when the borough learned Secretary/Treasurer Darlene McArthur was leaving her position, Teal said. She declined to provide a copy of the resolution to the Gettysburg Times, saying it had not yet been signed. Council member Anne Geiger made the text available.

Pennsylvania’s Sunshine Act “requires all official action (votes) to occur at a public meeting, and only after there has been an opportunity for meaningful public comment on the issue. Official action cannot take place outside a properly advertised public meeting,” Melewsky wrote.

Also, Pennsylvania’s “Right-to-Know Law makes records presented to a quorum for deliberation and official action public records, so the proposed resolution was public before the vote and should have been provided so that the public could understand the proposal and provide meaningful comment on it before the vote took place,” Melewsky wrote.

Anyone who believes the Sunshine Act was violated can take action in court, Melewsky wrote.

“The secretary/treasurer could challenge the resolution on a constitutional basis, but again, a lawsuit would be necessary,” Melewsky wrote.

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