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City Sued Over Closed Council Meetings

TAMV, ACLU seek court injunction ensuring access; city will allow live webstream

By Jason Togyer
The Tube City Almanac
March 02, 2021
Posted in: McKeesport and Region News

McKeesport officials will allow tomorrow’s city council meeting to be streamed live to the public.

The decision comes after four McKeesport residents sued the city and council for closing the Jan. 6 meeting. City officials had cited the need for COVID-19 safety, and announced plans to close this month’s meeting as well.

On Tuesday, V. Fawn Walker-Montgomery, Courtney Thompkins, Tracey Jordan and Janina Riley filed a lawsuit asking an Allegheny County judge to issue an emergency injunction requiring in-person or electronic access to this month’s meeting, set for 7 p.m. Wednesday at the public safety building, 201 Lysle Blvd.

The lawsuit and request for an injunction was filed on their behalf by the American Civil Liberties Union of Pennsylvania and the Pittsburgh law firm of Saul, Ewing, Arnstein & Lehr.

There was no February city council meeting.

On Tuesday afternoon, McKeesport Mayor Michael Cherepko asked Tube City Community Media Inc. to provide a free, live audio stream of Wednesday’s council meeting at www.tubecityonline.com.

In addition, the mayor said, the deadline for filing public comments for this month’s meeting will be extended. Comments may be emailed to jen.vertullo@mckeesport-pa.gov until 6 p.m. Wednesday. Comments also may be dropped off at city hall, 502 Fifth Ave., before 4 p.m. Wednesday, Cherepko said.

Other government agencies — including the Allegheny County Board of Health — also have closed meetings during the COVID-19 pandemic, but many of them, including McKeesport Area School Board, have provided a live stream via the Internet over YouTube, Facebook or other websites.

Reggie Shuford, executive director of the ACLU of Pennsylvania, called McKeesport’s decision not to provide an Internet stream a violation of both the First Amendment to the U.S. Constitution — which entitles residents to petition the government for a redress of grievances — as well as Pennsylvania’s Open Meetings Law, also called the “Sunshine Act.”

“The right of the public to participate in government affairs is a cornerstone of our democracy,” Shuford said. “There is no excuse for the McKeesport City Council to limit that fundamental right of city residents.”

City officials have argued that Pennsylvania Act 15 of 2020, passed by the state legislature at the beginning of the COVID-19 pandemic, suspended many of the obligations requiring government meetings to be opened to the public.

But in their lawsuit, the residents argue that Act 15 also requires public agencies to “allow for public participation in a meeting, hearing or proceeding through an authorized telecommunications device or written comments.”

“Other municipalities have been able to safely provide for public access to council meetings during the COVID-19 pandemic,” the ACLU’s Shuford said. “McKeesport City Council must find a way to follow the lead of these other municipalities and allow safe, real-time access to meetings.”

The ACLU also has asked a judge to order the city to allow public comments about items that are not on the published council agenda, and to ensure that any public comments received are published in the city council minutes.

Walker-Montgomery, executive director and co-founder of Take Action Mon Valley and herself a former city council member, said she organized a group of residents to attend the January meeting to voice their complaints about police behavior in December, during a manhunt for a suspect accused of shooting and wounding a McKeesport police officer.

“(Closing) the January meeting was a clear response to a Black organization organizing Black people to show up at the meeting and share their voices and concerns regarding police misconduct,” Walker-Montgomery said. “They knew that we were coming and chose to hide.”

McKeesport officials announced during the Dec. 2 city council meeting that the January meeting would be closed to the general public, due to rising COVID-19 numbers.

At January’s meeting, only one member of council — Council President Richard Dellapenna Jr. — was present. The other six council members participated by conference phone.

Although no members of the general public were present, reporters from the Mon Valley Independent and Tube City Almanac were asked to attend.

McKeesport city council chambers have a maximum occupancy of 58 people, Cherepko said Tuesday.

In January, state officials restricted indoor attendance at all events to no more than 10 percent of capacity.

“That means five people were technically allowed in council chambers,” Cherepko said. “Our council members were not at the meeting, either, to keep them from harm’s way.”

On Monday, Pennsylvania Gov. Tom Wolf increased the indoor limit to 15 percent of capacity, meaning either seven or eight people may be inside council chambers at one time.

City officials have argued that antiquated technology does not allow McKeesport to easily live stream its meetings.

The city’s conference phone system is limited and cannot accommodate a large number of simultaneous callers, Cherepko said, and attempts to use the Zoom video-conference system were not successful.

“We don’t have the resources,” he said. “Even if you look at the school district, they have as many resources as they possibly need and they have had technical difficulties throughout their meetings.”

The ACLU’s complaint argues that technical limitations are not an excuse.

“Countless other government agencies, including those in McKeesport ... were able to provide at least electronic access through Zoom or other videoconferencing technology to fulfill transparency and participation requirements for citizens and the media,” the attorneys wrote.

The city’s “denial of meaningful participation to McKeesport citizens and other members of the public (constitutes) irreparable harm for which there is no adequate remedy at law,” the attorneys said.

Cherepko denied that city officials are trying to hide from criticism of police response to the Dec. 20 shooting.

“It’s an absolute fallacy,” he said. “I’ve heard of some ridiculous things — but that’s definitely one of the worst.”

No public comments were received before the January meeting and Cherepko said that as of Tuesday evening, none had yet been received for this month’s meeting.

White Oak officials moved their council meetings to the White Oak Athletic Association, which has a larger capacity than the borough’s council chambers, and to allow for social distancing. 

McKeesport officials have said moving the city’s council meetings is not feasible.

In the lawsuit, the ACLU alleges that its attorneys had made multiple attempts to reach Cherepko or city Solicitor J. Jason Elash to “engage in a dialogue regarding the alleged Sunshine Act violations at the January meeting and how to provide for legally required public access at future council meetings.”

City council did not respond, the lawsuit alleges.

Cherepko said he spoke to an ACLU attorney in January but that neither he nor Elash had heard from the organization since then.

“We’re trying to offer an amicable solution,” he said.

Bill Phillips of McKeesport, board chair of Tube City Community Media, said Tuesday night the organization was happy to respond to the mayor’s request.

During the early days of the pandemic, the group, which owns Tube City Almanac as well as Internet radio station WMCK.FM, offered to help community groups, including churches, stream events.

“In the past we’ve done live and replay broadcasts of the Salute to Santa parade and International Village, a live broadcast from Festival of Trees, and other events,” Phillips said. “Tube City Online is happy to assist the City of McKeesport in simulcasting the monthly council meetings to the community.”

The stream will be found at the top of the main page of Tube City Online.

Jason Togyer is editor of Tube City Almanac and volunteer executive director of Tube City Community Media Inc. He may be reached at jtogyer@gmail.com.

Originally published March 02, 2021.

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