A government employer may withhold information about an employee’s termination, the Commonwealth Court has ruled, if the record of the employee’s firing contains prior disciplinary history.

In so holding, the split en banc panel reasoned that because disciplinary action against an employee is contained in a government agency’s so-called “personnel file,” which is exempt from disclosure under the state’s Right-to-Know Law, such must be the case for a termination letter that includes information gleaned from the protected material.

But that exemption for past discipline does not apply to a state agency’s “final action,” making the issue before the panel whether the termination letter was the borough’s final action against its employee, who was not named in Judge Anne E. Covey’s eight-page opinion.

In Section 708(b)(7)(viii), the RTKL exempts “information regarding discipline, demotion or discharge contained in a personnel file.”

“This subparagraph shall not apply to the final action of an agency that results in demotion or discharge,” the law says.

As the RTKL leaves “final action” undefined, the 5-2 panel borrowed from the related Sunshine Act’s definition of “administrative action,” concluding it was the employment termination itself that was the final action against the employee, and not the termination letter, which contained part of the employee’s record of discipline.

The ruling affirms that of an Allegheny County judge, who had reviewed a Borough of Wilkinsburg employee’s termination letter in camera before determining it was protected from disclosure to the newspaper and reporter that had requested it.

Also instructive was the Sunshine Act’s provision that closes to the public all hearings related to employment, its terms, termination, performance evaluations, promotion or discipline of a public officer or person employed or appointed by the government agency. Those discussions take place at an executive session, which is closed to the public under the law, the opinion said.
The ruling in Silver v. Borough of Wilkinsburg came over dissent from President Judge Dan Pellegrini, joined by Judge Bonnie Brigance Leadbetter, who reasoned that once an employee’s disciplinary history finds its way into a termination letter, which he said was a final action, it is no longer in the exempt realm of the personnel file.

“The majority essentially finds that the information can be redacted because it is personnel-related, essentially making the only information subject to disclosure the ‘bare fact’ as to whether the employee was demoted or discharged and nothing else,” Pellegrini said.

The ruling is a loss for the Pittsburgh Post-Gazette and one of its reporters, Jonathan Silver, who had submitted an RTKL request to the borough asking for a former employee’s employment termination letter. Covey did not elaborate on many details of the request, nor did she identify the employee by name. There was no indication of why the news organization asked for the man’s record.

However, the newspaper published an article about the court’s decision in which it identified Richard Funk as the fired employee.

In coverage from March, the Post-Gazette said Funk was a suspected accomplice of the chairwoman of Wilkinsburg’s Redevelopment Authority, who was accused of using her position with the borough to burglarize a vacant house.

According to the Post-Gazette, Kate Luxemburg had access to a list of vacant and abandoned houses in Wilkinsburg and asked Funk to take items from one of the houses.

The Post-Gazette‘s attorney, Frederick N. Frank of Frank, Gale, Bails, Murcko & Pocrass in Pittsburgh, said the newspaper intends to ask the state Supreme Court to take the case up on appeal.

“As the dissenting judges noted, the statutory provision is clear that a final action letter must be produced without redaction,” Frank said. “We believe the majority’s decision is not consistent with the Right-to-Know Law or the most recent decision of the Pennsylvania Supreme Court interpreting a similar provision of the Right-to-Know Law.”

Frank was referring to Hearst Television v. Norris, in which the justices decided Pennsylvania’s Coroner’s Act does not give a county coroner the discretion to deny a request for immediate disclosure of someone’s manner of death.

Michael J. Witherel of Witherel & Associates in Pittsburgh represented the borough and did not return a call requesting for comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter@BPresentTLI.

(Copies of the 11-page opinion in Silver v. Borough of Wilkinsburg, PICS No. 12-2345, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •