WILKES-BARRE — As he frequently has done in recent years, city resident John Suchoski recorded much of the Wilkes-Barre Area School Board meeting Tuesday with his smartphone. But this time he captured what one board member was doing with his own smartphone.
The question came up almost instantly: Is any part of a public meeting private?
The large crowd at the meeting, held in a small conference room at the administration building, left many standing, including Suchoski, who ended up near a wall behind board members, who sit at tables arranged like a long U.
No one took note of Suchoski’s position, or of where his smartphone was pointing, until he spoke near the end of the public comment session.
Suchoski asked if board members were supposed to be paying attention to the crowd or looking at their phones. Then he claimed board member James Geiger apparently had conducted personal text conversations and sent images during the meeting, and that he had the video to prove it.
Geiger did not comment at the meeting about the accusations, but board member Ned Evans angrily came to his defense, arguing that what Suchoski had done was “an invasion of privacy.” Suchoski noted it was a public meeting. Board President Denise Thomas also denounced Suchoski’s actions.
Suchoski also posted a picture on his Facebook page with the caption, “How much our current board is paying attention during a meeting.” Taken from behind Geiger, the picture shows the back of his head and left shoulder, and beyond that his phone in his hand with an ill-defined image on the screen.
Asked later in the week about it, Solicitor Ray Wendolowski said he hadn’t looked into the legality of a citizen recording a private transaction at a public meeting, but said that “if there is a wrong, it was committed by Mr. Suchoski.”
“People have an expectation of privacy in regard to their private text messages,” Wendolowski said. “Occassionally, I get a text message from my wife asking ‘where are you?’ I don’t think there’s anything inappropriate about that; we’re still paying attention to the meeting.”
Melissa Melewsky, media law counsel for the Pennsylvania News Media Association, agreed. She said she knows of no laws or court cases that would clearly apply to a situation such as this, but said “a general rule of invasion of privacy is to ask if there is a reasonable expectation of privacy. I tend to agree with the solicitor in this case.”
Melewsky stressed the law clearly bans the use of technology at a meeting to circumvent rules regarding public meetings. People on the school board cannot sit and text or email each other about the topics or votes at hand; everything related to meeting business must be done, literally in this case, above the table.
Suchoski made no such accusation. His description of what he saw on Geiger’s phone sounded like personal matters.
Wendolowski did not dispute a person’s right to record or stream public meetings of the school board or any other government entity.
The notion was novel — and controversial — decades ago when video cassette recorders became ubiquitous and some taxpayers started lugging VCR cameras and tripods to meetings.
Locally, Demetria Deakos — an officer of a taxpayer association in Hazleton — drew criticism when she began recording Hazleton City Council meetings in the 1990s. One council member responded by hiring — at her own expense — a professional videographer to make a separate recording of the meetings, with the tripods often set up in opposite corners of the room.
But the recording of meetings has become common — and even unnoticed — thanks to the size of smartphones. Some government entities record their meetings and post the video online — Crestwood School District has been doing that for years.
“There is no question the public can record the public meeting. The question is, can they record those things where a person has an expectation of privacy,” Wendolowski said.
Both Wendolowski and Melewsky also noted the fact that Suchoski recording the phone activity of a school board member was largely irrelevant. What constitutes a reasonable expectation of privacy “is not a subjective standard,” Melewsky said, “it’s a community standard.”
“Certainly, you should be more on your guard when you are in a public location,” she said. “Yes, he was at a public meeting, but there is still some expectation of privacy in what’s in his immediate vicinity.”
Space for meetings
Wendolowski said the board could set a policy restricting audience members from standing behind board members, but he conceded that could be problematic. A legal challenge could arise if the board had such a policy and then held a meeting in a room too small for the crowd, as happened Tuesday.
On his Facebook page, Suchoski pointed out that the Geiger incident wouldn’t have happened if the school board held meetings in rooms large enough to handle the crowds. Several of those who spoke in the audience Tuesday urged the board to hold meetings at schools with ample space in auditoriums or cafeterias.
Board member John Quinn joined in that request, noting that since surgery last year he has been unable to walk up steps, and that getting to the conference room at the administration building requires walking up steps or a long process of ringing a doorbell, waiting for someone to come and open the door, and boarding the elevator in the basement.
As often is the case with area school boards, for years the crowds at Wilkes-Barre Area meetings usually were sparse and the conference room ample. But crowd sizes grew after the board started working on high school consolidation, and the room rarely has been big enough to accommodate everyone since June 2015, when the board voted to consolidate Meyers and Coughlin high schools.
The board held most of last year’s meetings at different district schools. It returned to meeting in the conference room in recent months, as crowds seemed to thin during the holidays and cold weather.
Tuesday’s attendance suggested a return to the days of crowded sessions, and Thomas announced the next meeting will be at Dodson Elementary School.