Legal Hotline: Email deliberation

  • Oct 15, 2015

Melissa Melewsky

Q:  A local borough is facing a large and unexpected invoice.  Borough council president emailed co-council members about the budget shortfall and asked for proposed spending cuts and opinions on each proposal.  Does this solicit “deliberation” outside of a public meeting, and can elected officials use email to deliberate outside a public meeting?

A:  There is no exception to the Sunshine Act that allows deliberations by a quorum to take place in the manner described, and the email discussion raises Sunshine Act compliance issues.

The Sunshine Act requires that anytime a quorum of an agency deliberates agency business, they must do so at a public meeting unless an exception applies.  There are a number of limited exceptions to the law that allow private deliberations on issues such as personnel, litigation, collective bargaining and the acquisition of property, but there is no exception that allows a quorum to deliberate privately via email or other non public means of communication.

The law defines “deliberation” broadly as “[T]he discussion of agency business held for the purpose of making a decision.”  The general rule requiring deliberation at a public meeting is likewise broad and meant to permit the public to witness and participate in the formation and enactment of policy. 

When a quorum of borough council members discusses proposals to fill a gap in funding, it is a discussion that must occur at a public meeting so that the public can understand the reason for the proposed action and comment before council takes action.  Email is an essential tool in the function of local government, but elected officials must recognize the public interest enshrined in the Sunshine Act and not use advanced communication technology to thwart the letter and intent of the law.  Public access is critical at all stages of policy formation, including its origin.   

As always, this is not intended to be, nor should it be construed as, legal advice.  Please consult your newspaper’s attorney or the Legal Hotline at (717) 730-3080 with questions.

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