Rules land Montrose borough back in court

BY STACI WILSON

Rules for conduct of public meetings adopted nearly one year ago by Montrose Borough Council came under fire again Tuesday in the Susquehanna County Court of Common Pleas.

Lisa Barr, a freelance journalist from Oneonta, N.Y., challenged rule number 12.

That rule adopted by the council on March 5, 2012, prohibits the audio and video recording of events prior to and after a public meeting.

Investigative reporter Joe Holden, of WBRE, Channel 28, was the first to take the witness stand.

Holden testified that he, along with a camera operator, report on meetings including events that happen prior to the public meeting being called to order and after the meeting has adjourned.

Holden testified that the borough’s requirement to turn the camera on and off places an undue burden on his coverage.

“There are rules that supercede Montrose Borough’s that tell us, as journalists, what our jobs are,” Holden said.

On cross examination by the borough’s attorney, Patrick Boland, Holden said he had not been to a Montrose Borough Council meeting since the adoption of the amended rules of conduct on March 5, 2012.

Barr also took the stand. She told the court she has been working as a journalist since 1977 and has taught journalism at the college level.

She said that after she had reached a stipulation agreement with the borough last year, she had attended a meeting where she recorded both before and after the meeting with council having no problem with it.

“We teach our students that this is what we do. It shows the flavor of the community to cover the demeanor of people before and after a meeting,” Barr said.

On cross examination she said she did not remember the amended rules of conduct being read into the meeting record on March 5, 2012, but said she was sick with influenza at the time and was removed from the meeting room at various times.

“I feel as though the rule was added after the fact,” she told the court. “I remember being shocked it was there.”

Boland called Montrose Borough Solicitor Marion O’Malley to the stand. She said she has acted as the borough’s solicitor since January 2006.

O’Malley said she drafted the original rules of conduct for meetings passed by the borough in a special meeting held Feb. 14, 2012.

The amended rules of conduct, O’Malley said, were drafted after the borough and Barr had reached a stipulation agreement.

On the stand, O’Malley said that rule number 12 appeared verbatim in the original rules of conduct as rule number 10.

O’Malley also testified that there had been no issues with the amended rules of conduct “at any meeting I’ve attended.”

Councilman Craig Reimel also took the stand for the borough. He said the amended rules were read aloud at the March 5, 2012 adoption.

Reimel also said it was customary for members of the press to talk with people before and after meetings and that he was not aware of that being a problem at council meetings.

In closing arguments, Barr’s attorney, her sister Deborah Barr said, “The transparency of government actions has to be protected at every cost. A rule that doesn’t allow for journalists or citizens to record is restrictive to transparency,”

She argued the rule was not conducive to that of a free press and would be in violation of the First Amendment of the U.S. Constitution and the State Constitution.

President Judge Kenneth Seamans asked the borough attorney why the rule was not a restraint on the freedom of press.

Boland said video and audio recordings were allowed of the meeting itself and that the rule met the provisions of the Sunshine Act.

The judge also asked the attorney, “What is a borough council member wants to speak (to the press) inside the building?”

Boland said the rule would not apply to a member of council who wanted to hold his or her own meeting, but the rule would apply to council collectively before and after meetings.

Judge Seamans said he would take the matter under consideration and no judgment was issued as of Tuesday afternoon.

The borough council’s meeting rules were put into place the week following council’s walk-out from a scheduled meeting on Feb. 6.

Before the meeting was called to order, an attendee notified council of her intent to videotape the meeting. Council President Tom LaMont said he needed to check with the borough solicitor, who was not present, to see if that was allowed.

Council was also presented a copy of the Sunshine Law regarding the recording of public meetings by a borough resident.

After calling the meeting to order and a committee meeting was scheduled, LaMont announced the meeting would be recorded “audibly and videotaped” and said, “If anyone has objections on religious, ethical or moral grounds, now would be the time to leave.”

At that council members left the meeting room.

On the agenda the night of the Feb. 6, 2012 meeting was discussion item “Jessup Steet, water hydrant.”

The hydrant which is used to fill a water truck that provides water to residents in Dimock who say their well water is not potable because of nearby natural gas drilling.

The hydrant has remained a controversial topic since early last year and a lawsuit was recently filed against the borough’s zoning hearing board regarding it.