COUDERSPORT — The Potter County Redevelopment Authority voted to sell a Coudersport property during its November 2020 meeting, according to the agency’s official minutes, but that vote may not have taken place during that public meeting.
According to the minutes from the Nov. 16, 2020 Redevelopment Authority meeting, a motion was made by board member Shawn Wolfinger to “approve sale to Primax Dev. of the Majot Lot for $200,000,” and seconded by Dennis Goodenough. All board members voted in favor, according to the minutes.
Primax Properties LLC, a real estate developer based in North Carolina, frequently does work with Tractor Supply. The “Majot Lot” includes parcels 062-003-056, 062-003-057 and 062-003-058 and is located at 406 South West Street, Coudersport. It was purchased by the Potter County Housing Authority for $150,000 in 2014; it was previously owned by Tom Majot.
This reporter was the only member of the public who was physically present during the entire meeting. That vote did not take place in front of this reporter. This reporter audio-recorded these meetings as well, and after a thorough review of the recordings, it appears the vote was not done.
Commissioner Paul Heimel attended the meeting via telephone.
“I don’t recall any discussion of that issue during the November meeting, which I attended virtually,” Heimel said.
John Wright, executive director of both the Potter County Housing and Redevelopment Authority, and Jeff Wilcox, chair of the board, both say the vote was done in public.
Wright previously told this newspaper that meetings are recorded for the purpose of writing minutes, as the person who sometimes prepares the minutes does not attend the meetings. The Potter Leader-Enterprise filed a Right to Know request for the authority’s copy of the recording. Agencies are not legally required to retain the recordings of meetings, but if they exist, they are public under the Right to Know law.
In response to the Right to Know request, Wright stated the tapes are reused each month and didn’t know if the November meeting could be lifted off of the tape.
According to the Office of Open Records website, “Under the RTKL, an agency has the burden of proving that it is permitted to (or, in some cases, required to) withhold a record. Merely stating that a record does not exist or making other factual assertions isn’t enough for an agency to meet its burden of proof.” The website states in general, an agency must submit an affidavit sworn to under the penalty of perjury to support its assertion.
A Right to Know request was also filed for the sales agreement that is noted as approved during the meeting, but neither the authority nor its attorney, Anne Leete, of Spencer, Gleason, Hebe & Rague, P.C., have given the public documents to this newspaper.
When the request was filed in February, Leete told this newspaper she “will ensure that you receive the available public records in a timely manner.”
The authorities had until April 3 to provide the public documents, but failed to do so. Emails and phone calls from this newspaper to Leete went unanswered until the afternoon of Tuesday, April 13.
“We are working to respond to your request regarding the Primax issue and will have an answer by the end of this week,” she wrote in an email.
Wright sent the November agendas the morning of Wednesday, April 14, which were also requested in the RTK. He said he asked Leete to address “the used tape.”
Leete and Wright declined to comment on why the April 3 deadline was missed.
Because the authority did not respond by the deadline, the request is “deemed denied,” according to the law. The Potter Leader-Enterprise plans to file an appeal with the Office of Open Records if documents are not received.
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, which this newspaper is a member of, said even if the sales agreement hasn’t been fully executed, it should still be public.
“The sales agreement should be public under the RTKL, regardless of whether the developer has signed, because by authorizing the agreement, the authority has legally committed itself to a course of action,” Melewsky said. “Moreover, if the agreement was deliberated and approved at a public meeting, the RTKL made it public at the point it was presented for deliberation so the public could follow along with the discussion and provide public comment before the vote took place.”
The Potter Leader-Enterprise asked Wilcox and the board a series of questions, including why the vote to sell the “Majot Lot” wasn’t done in public.
In response, Wilcox said, “The vote was held during the public portion of the meeting following our executive session.”
According to this reporter’s audio recording and notes, there was no executive session held during the November 2020 Redevelopment Authority meeting, though the minutes state one was held. Agencies are required, through the Sunshine Act, to state the reason for holding the executive session at the open meeting occurring immediately prior or subsequent to the executive session. The authority did not state there was an executive session held during the next meeting.
There was an executive session held during the November Housing Authority meeting; the Housing Authority owns the “Majot Lot.” When asked why the Redevelopment Authority took action on something owned by the Housing Authority, Wilcox said, “The decision to sell was deferred to the Redevelopment Authority as it reflected a redevelopment activity. The proceeds of the sale will be paid to the Housing Authority.”
The executive session during the Housing Authority was held for “real estate.”
“We have two pieces of property that are being considered for sale. … They’re both being considered. We haven’t yet made a final decision,” Wright said after the executive session.
Wright declined to identify the properties in discussion during the meeting.
During a Feb. 23 phone call, Wright told this reporter the executive session during the November 2020 Housing Authority meeting was held for Potter Pak and the “Majot Lot” and that no decision was made on Potter Pak. The vote to sell the Majot Lot occurred after the executive session, he said.
In response to the request for comment, Wilcox said the topic of the executive session was not voted on during the meeting.
During the executive session, this reporter sat outside of the closed-door room and saw and heard what appeared to be Wilcox call for two separate motions. Following the executive session, this reporter questioned why two motions were made, as voting during an executive session is against the Sunshine Act.
Wright said he corrected them and a vote wasn’t taken.
“They called for a motion ... but we can’t do a motion until we come out” of the executive session, Wright said.
Wilcox said, “What we did is, we authorized John to continue to discuss real estate with potential buyers. We ... don’t have anything to vote on, there’s nothing in front of us that is concrete that we can go ‘yes or no.’ We just were giving direction.”
The Sunshine Act requires agencies to deliberate and take official action on agency business in an open and public meeting. If the board gave Wright authorization to move forward, it is required to do so in public.
When this reporter raised questions regarding the Sunshine Act, Wright said he thought the board was in compliance with the Act.
“They made the motion but we can’t pass it … because we’re just negotiating, they authorized me to go forward, but we don’t have a deal yet,” Wright said.
Wilcox, in a request for comment, said, “The discussion held in executive session is not subject to the Sunshine Law and this was not commented on by the executive director. If the matter is brought for a vote it will be conducted during the public portion of our meeting.”
He stated the vote to sell the “Majot Lot” was held in public and affirmed in December.
“It is the expressed intent and accurate recollection of the members of our board that the vote was taken properly and again affirmed,” Wilcox stated.
Wright agreed that the vote was held in public.
“After the executive session, we came out of the executive session, a motion was made, seconded and passed by them. It was approved by the board, they ratified the minutes the next month,” Wright said in a Feb. 23 phone call with this reporter.