Bucks County DA won't pursue Sunshine Act violation allegations against Falls. Why not?

The Bucks County District Attorney’s Office has rejected prosecuting a private criminal complaint alleging that Falls Township supervisors and its solicitor twice violated the state’s public transparency law last year.

But Assistant District Attorney Eugene Tsvilik isn't providing details on his decision on the complaint that alleged the supervisors violated the law when they hired a township employee and an auction company before voting on the matters at a public meeting, as the law requires.

“I decline to offer an explanation absent an appeal from the complainant,” said Tsvilik, the prosecutor assigned to vet complaints involving Sunshine Act violations.

Falls Township has denied its actions violated the Sunshine Act.

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Pennsylvania’s Sunshine Act requires government agencies to deliberate and take official action on agency business in an advertised public meeting where the public can attend, participate and comment before an agency takes a vote.

A Sunshine Law violation is a summary offense that carries a $100 to $1,000 fine for the first offense.

Falls Township police union President George Thomas alleged in a private criminal complaint that the supervisors and its solicitor violated the law when it:

• Hired a director of employment operations and chief human resources officer who  started work on Sept. 18, a week before the supervisors voted to approve his hiring at the Sept. 25 public meeting.

• Allowed Geyer Real Estate Auctioneers company to hold an online auction of surplus municipal equipment and items without a contract. Records show the auction ended and the business was paid before the supervisors voted to approve the contract at a public meeting Sept. 25.

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The hiring and termination of employees and entering into contracts are considered official government business, and if done outside of an advertised public meeting it violates the law, according to two legal experts whose practices focus on public transparency.

But neither attorney was surprised that Bucks County’s DA declined to prosecute.

Sunshine Act violations are rarely filed in Pennsylvania in the criminal or civil courts because they can be difficult to prove and frequently cited case law appears to contradict the law’s purpose and enforcement, the attorneys said.

The last time the Bucks County District Attorney’s Office weighed in on a private complaint alleging a Sunshine Act violation was 2016.

Then-Bucks County District Attorney David Heckler found probable cause existed that four Warrington supervisors violated the Sunshine Act when they voted in via email to hire a management consultant.

But Heckler declined to prosecute the individuals, citing the violation as not “nefarious” in nature and noting the board held a second public vote.

Case law has allowed public agencies the unfettered ability to avoid consequences and accountability for private decisions on official business that violate the Sunshine Act by simply holding a second public vote, the attorneys said.

“Despite the gray case law precedent, I think the DA may have missed a golden opportunity to protect the community’s right to know,’ said Joy Ramsingh, an attorney who specializes in  public transparency law. “A case with an established pattern of violations might have a different outcome from a prior case involving a single, honest mistake.”

Ramsingh added that based on the available facts in the Falls police union complaint, it appears to show a “pattern of violations” that sets it apart and suggests potential for the abuse of the post-violation correction.

Pennsylvania attorney for the Reporters Committee for Freedom of the Press Paula Knudsen Burke also agrees the facts presented in the Falls police union complaint raise “red flags” for an apparent violation of the law.

She pointed to a similar case last year in Northumberland County, where the District Attorney’s Office found probable cause existed in a private criminal complaint alleging a Sunshine Act violation involving a school board who allowed an assistant superintendent to start work 14 days before holding a public vote on the hiring.

In that case, the Northumberland DA issued the district a warning letter since it was a first offense.

“The bottom line is that there is a lot of discretion built in for DAs to decide if and when to enforce this law criminally,” Knudsen Burke added.

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This article originally appeared on Bucks County Courier Times: Bucks County DA won't pursue Sunshine Act violations against Falls.