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Expert: Public access laws allowed BASD to conceal superintendent investigation

Traca said he was assigned to supervise a group of students in the cheering section at BASD Stadium when he thought he saw a fight forming. When he went to break it up, he was punched by Roy, the complaint said.

BETHLEHEM, Pa. — In a federal courtroom last week, the public got its clearest vision yet of Bethlehem Area School District’s accounting of what transpired when Superintendent Joseph Roy and Assistant Principal Antonio Traca got into a physical altercation at a high school football game.

But even now, nine months later, most of the details remain shrouded in secrecy.

  • Assistant Principal Antonio Traca's lawyers allege BASD tried to cover up the incident
  • The school board president says it's a personnel matter
  • A media law expert says a personnel exception can be used by public entities to keep information private

A media law and open government advocate said the case highlights shortcomings in Pennsylvania law.

“The Sunshine Act and the Right to Know Law and their exceptions are not confidentiality requirements,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.

“The Right to Know Law allows agencies to withhold records in certain situations. Similarly, the Sunshine Act allows agencies to close certain discussions in limited situations. But they never require agencies to do so. It's always a choice the agency makes when they're determining whether or not to assert one of those exemptions.”

Attorney George Kounoupis, who represents Traca, said the school board has for months covered up Roy’s behavior that night.

“They could have chosen to make it public,” Kounoupis said. “But their whole position was all along ‘We're not going to embarrass the superintendent, we're going to keep this from the public.’ All along the idea was to keep this from the public.”

New details revealed in court

The federal court hearing last week was the first time the public heard the Bethlehem Area School District admit the retiring superintendent “shoved” or “pushed” the assistant principal during a Liberty-Easton high school football game on Oct. 14, 2022.

Traca filed a civil rights lawsuit against Roy and the district in April.

In the lawsuit, Traca said he was assigned to supervise a group of students in the cheering section at BASD Stadium when he thought he saw a fight forming. When he went to break it up, he was punched by Roy, the complaint said.

"When Plaintiff expressed surprise, shock and fear that Roy would continue his assault, stating 'Why did you hit me,' Roy responded by accusing him of “not doing your (expletive) job” and instead “just watching the game,” the lawsuit said.

The district’s lawyer, John Freund, described Roy as shoving or pushing Traca in court. He said Roy may have displayed “overzealousness or thoughtlessness, but certainly not malicious or sadistic [actions].”

U.S. District Court Judge Edward Smith of the Eastern District of Pennsylvania, who heard the case last week, said the facts of what happened at the game were not in dispute.

District response

“The Sunshine Act and the Right to Know law and their exceptions are not confidentiality requirements."
Melissa Melewsky, inhouse counsel for Pennsylvania NewsMedia Association

In the weeks following the Oct. 14 game, rumors began to circulate in the district about the altercation. When asked by LehighValleyNews.comfor comment on Nov. 6 about an alleged “incident” between himself and a district employee, Roy called it a “specific unfounded allegation” and said he would not comment again because it involved district personnel.

On the same day, school board President Michael Faccinetto said the board was aware of an incident involving a district employee and it was conducting an investigation. Faccinetto sent a letter to BASD staff on Nov. 7 reaffirming its support for Roy’s leadership “while they navigated the current situation.”

On Nov. 21, the board voted without opposition to hire an outside investigator, retired Judge Emil Giordano, to conduct a probe of the incident. The board approved paying him $495 an hour, for a total of about $12,000 in taxpayer funding by the time Giordano finished.

But the board has kept the report and its findings, delivered in February, secret.

Faccinetto said at a board meeting in late February that the board had reviewed the findings and considered the investigation concluded. He said because it was a "personnel" matter nothing would be shared.

Kounoupis said it was the board’s decision to keep the results of the investigation confidential by using the personnel exception under the state's Right to Know Law for public entities.

"I think they're entitled to an investigation," he said. "But it was their choice not to make the results of the investigation public. And they did that by making this into a personnel issue."

That complaint illustrates a flaw in Pennsylvania law, Melewsky said.

"It doesn't expressly require access to the results of an investigation like this or any investigation for that matter,” she said. “I think the logical answer here is that when a public employee is subject to an investigation and the investigation reveals wrongdoing ... in the performance of their duties, I think that's an indication that there should be public access and the public has a right to know if there are findings that say a public employee did something wrong on the job.”

Kounoupis said the lack of accountability is an affront to his client, who is still a district employee.

“When you have an act like this by the highest authority, there should be action,” he said. “And there should be consequences. It shouldn't depend on who the person is."

The school district declined to comment for this story, citing active litigation and calling it a “personnel matter.”

Roy, who has led Bethlehem schools for 13 years, announced his retirement in March. It becomes effective July 15. He has said his retirement was not related to the allegations.