Parents hold a peaceful protest outside of the Montgomery County Office of Public Health on Saturday, Nov. 14.
The Montgomery County Board of Health and Montgomery County Commissioners are being sued by two county parents and a Pottstown school administrator who wish to prevent the countywide two-week full-virtual school order from going into effect Nov. 23, citing violations of the Pennsylvania Sunshine Act.
Souderton Area School District parent and Telford resident Kaitlin Derstine, Lower Gwynedd resident Liz Weir, and Coventry Christian School Head John Niehls on Wednesday filed an emergency petition in county court asking a judge to issue an injunction to stop the order from taking effect Nov. 23. The three plaintiffs are acting on behalf of the 4,300-plus-strong Parents for In-Person Education (PIPE) Facebook group.
The three plaintiffs want the Board to declare that it violated the Pennsylvania Sunshine Act at two public meetings and to declare any official action taken at either meeting be null and void. They also seek a permanent injunction “enjoining all defendants from enforcing or taking any official action” on the county COVID-19 Risk Reduction and Mitigation Order. The trio also seek attorneys’ fees and costs and any other appropriate relief.
Defendants named in the civil lawsuit are the Montgomery County Department of Health and Human Services Office of Public Health, the Montgomery County Board of Health, Montgomery County Board of Commissioners, Commissioners Chair Dr. Valerie Arkoosh, Commissioner Vice Chair Kenneth Lawrence Jr., interim Director of the Office of Public Health Janet Panning, Medical Director of the Office of Public Health Dr. Richard Lorraine, and Board of Health members Michael Laign, Dr. Francis Jeyaraj, Steven Katz, Barbara Wadsworth, and Martin Trichtinger.
Commissioner Joe Gale was not named as an individual in the lawsuit.
Derstine, Weir and Niehls believed the Board voted on the order under pressure from the Pennsylvania State Education Association. The rationale cited by the Board, they said, was the fear of COVID-19 cases rising during the Thanksgiving holiday.
The threesome released this statement via email:
“As parents, educators, and concerned citizens, we have seen the damage inflicted on our children by the continued isolation, lack of cognitive stimulation, and substandard virtual education being delivered by our districts. Decisions with this magnitude of impact must be done transparently and in accordance with all applicable laws and statutes. In this case, the County failed to meet that bar.
We can no longer sit by while our children are used as guinea pigs in this virtual learning experiment. Virtual learning isn’t working. Schools across the county have been opened, some five days a week, with no real outbreaks. Our schools have done the hard work of preparing and have been doing an amazing job for our kids. School exists for kids. Schools are doing their jobs. The kids have suffered enough. It’s time for them to go back.”
On Nov. 12, the Board of Health held a public meeting via Zoom to decide whether or not to close public and private schools for two weeks beginning Nov. 23, in order to stave off the spread of COVID-19 during the Thanksgiving holiday — an order that was backed and directed by Arkoosh. The order initially had language in it for the potential of the order to expand beyond two weeks.
After nearly three hours of public comment – of which a majority of parents and school administrators vehemently opposed the order and urged the Board to follow suit – the Board voted to recess, assess comments and return on Nov. 13 to vote on the matter. On Nov. 13, the Board voted unanimously, without deliberation, to approve the order. The order removed the clause “with the potential for expansion beyond this date.”
The order was not made available to the public prior to or the day of the meeting.
The plaintiffs contend that the Board violated the Sunshine Act by not giving the public 24 hours’ notice of the Nov. 13 meeting in a newspaper, television, or radio advertisement, as required by the Sunshine Act. Furthermore, the lawsuit claims the Board “willfully violated” the Sunshine Act by not taking official action on the order at the Nov. 12 public meeting.
The lawsuit further claims the Board violated Sunshine Act protocols by “limiting public comment” and “barring public comment” during the Nov. 12 and Nov. 13 meetings, respectively, and not providing the public “reasonable opportunity to comment.”
For the public to participate, each person was required to send an email to the Board staff to request Zoom login information, per the lawsuit. The meeting was capped at 500 participants. On the day of the meeting, participants were instructed to type their name in the chat function of the Zoom meeting. Each person was limited to two minutes per comment.
Niehls, Weir and Derstine claim that the Board deliberated on the order and discussed agency business behind closed doors.
“The Board, in secret and behind closed doors, decided to significantly revise the proposed order,” states the lawsuit. “Private and closed-door discussions by Board members in these circumstances constitute deliberations under Pennsylvania’s Sunshine Act.”
During comment on the Nov. 12 meeting, Niehls said he was told by a county health employee that the county is not seeing any COVID-19 spread in the schools. He said his school has been in-person since September 8, five days a week, and there has been one case, which the student caught from parents.
“If there is no spread in the schools, then shutting the schools down may make the problem worse,” Niehls said. “From what I am seeing, it is spread in homes and restaurants. If you shut down, you must provide data to support the decision. That’s ethical. Otherwise, there is no legitimacy to the decision.”
Derstine sobbed as she spoke during the comment portion of the Nov. 12 meeting, where she said her special education child had major issues when he was virtual. These issues included being overstimulated by the computer screen and distracted by his environment. Since he has returned to school, he has skyrocketed in his progress.
“My son’s future will suffer if you do this,” she said at the Nov. 12 meeting.
Derstine was one of a handful of parents who cited concerns over Individualized Education Programs, special education, and even suicide among students during fully virtual learning. Parents warned the Board the county could face legal action if it hindered districts’ abilities to provide proper and required resources for students with IEPs.
According to the Sunshine Act, any member of an agency found to have violated the act can face criminal charges and fines up to $1,000 for the first offense and up to $2,000 for the second offense. An agency cannot pay the fines; it must be paid by an individual. A court can also award attorney fees to the prevailing party.
The lawsuit is not the only effort of PIPE against the Board of Health order.
The group has two rallies planned against the closure: There is one set for Saturday at 11 a.m. at the county Board of Health Office in Norristown, and one set for Sunday at 9 a.m. in front of the Wyndmoor home of Commissioner Arkoosh. Attendees are encouraged to wear masks, social distance and bring signs. The first rally was held on Tuesday at the Board of Health office.
See also:
Montco Department Of Health Unanimously Votes To Temporarily Close Schools Amidst COVID-19 Surge
Montco Meeting On Potential School Closures Ends In Recess, Vote Rescheduled For Friday
Montco To Vote Tomorrow On Sending All Students Back To Virtual Learning For Two Week Period
North Penn Reports Additional COVID-19 Cases As Students Return To In-Person Schooling
