Lansford Borough Council moved forward with the purchase of road repair equipment that one resident claims was done illegally.

Council voted 3-2 last week to ratify a sealed bid the borough sent to the Carbon County Council of Governments for the purchase of a 2017 Asphalt Zipper.

The COG accepted the borough’s bid of $60,576.75 on Jan. 24. It was the only bid received.

The borough has been using and storing the machine inside its garage for two years, Councilman William Chuma said. The COG had waived any fee schedule for its use for the borough, he said.

“Whoever keeps it, got to use it for free,” Chuma said.

Council President Bruce Markovich, whose signature was on the bid submitted to the COG, said the borough was storing the machine at no cost to the COG, which in turn waived any use fees.

Resident Bob Silver, who called the discussion and submission of the sealed bid illegal, had questioned why the machine was already in the borough garage.

“That answers why it’s in the garage,” Silver said, but he still questioned the legality of the bid, since it was never discussed publicly and only in a closed-door executive session.

Chuma then read one of the exemptions, or allowable reasons an agency can meet in executive session, from the state’s Office of Open Records’ Frequently Asked Questions.

The section reads, “Discussing agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law.”

“You can use that,” Chuma told Silver. “We can do that in an executive meeting. We didn’t vote to accept it. We’re going to do that tonight.”

Silver continued to question the bidding process, and tempers flared momentarily.

Chuma, in a raised voice, told Silver to read the information from the Office of Open Records that Markovich received that afternoon with the allowable exceptions.

Markovich said the borough’s position is there is a confidential exclusion under the Sunshine Act, in which “we are allowed to do the bid in executive session. Two attorneys have told us that.

“The Office of Open Records has substantiated that,” Markovich continued. “We’re moving forward with the purchase.”

Chuma gave Silver a copy of the email from the Office of Open Records. The email, which Markovich provided to the Times News, states the OOR “does not adjudicate Sunshine Act disputes or provide legal advice.”

The email also states that the office can’t provide a definitive answer on the specific item cited, and pointed Markovich to its FAQ, from which Chuma read.

Melissa Melewsky, an attorney for the Pennsylvania NewsMedia Association, said after the meeting she respectively disagrees with council’s position regarding “confidential by law,” exemption under the Act.

“That provision only applies where another law affirmatively requires confidentiality,” she said Thursday, noting that school districts, for example are required by federal law to keep student specific student academic and disciplinary records confidential.

“This situation is very different,” Melewsky said. “Sealed bids are not required by law; that’s just the way COG chose to handle bidding.”

She added that the COG, as representatives of individual local governments, should be aware of the transparency requirements that apply to discussions, decisions and records concerning public funding.

“Requiring secrecy from public bodies spending public funds is not in the public interest,” Melewsky said.

The COG chair Kara Scott had said the council asked for sealed bids for transparency reasons, so no one would see the bids beforehand and they would be opened at a public meeting.

The COG, she said, was trying to be “extraordinarily fair and right,” and everything was done “on the up and up.”

The COG is an organization in which representatives from different communities can come together to work on shared problems and find solutions to benefit all, Scott had said.

She said earlier this month that she did not understand the secrecy on the part of Lansford Borough in the bidding process.

After ratifying the bid, council then approved the purchase of the machine using a $21,192 deduction from state Liquid Fuels funds, pandemic relief funds and sewer transmission funds.

The vote on the purchase was again 3-2, with council members Martin Ditsky and Jennifer Staines casting the two no votes.

Chuma pointed out the high costs associated with bringing in a company to mill roads in another area, whereas the borough has used the Asphalt Zipper to mill several streets at no cost under the COG ownership.

“When we brought that machine here, it had 32 hours on it. It now has 96 hours on it. I think we used it pretty good,” he said. “If you don’t think it’s worth anything, maybe we should call a milling company.”