Legal Hotline: Filling a vacancy in an elected office: Sunshine Act and Right to Know Law

  • Sep 29, 2016

Melissa Melewsky, Media Law Counsel

Q:  Are local agencies like boroughs and townships allowed to hold a personnel executive session to discuss candidates for a vacancy in elected office?  Does the Right to Know Law allow agencies to deny access to candidate materials like recommendation letters? 

A:  A personnel executive session is not permitted to discuss filling a vacancy in elected office, and the list of candidates seeking to fill the vacancy is a public record. 

The general rule of the Sunshine Act is: anytime a quorum of an agency deliberates agency business, it must do so at a public meeting unless an exception applies.  Section 708(a)(1) of the Sunshine Act - the personnel executive session exception - allows agencies to privately discuss current, former or prospective employees.  However, the Sunshine Act expressly states that the personnel executive session exception “does not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office.”  You can read section 708(a)(1) in its entirety here

The Right to Know law requires disclosure of such candidates’recommendation letters.   Section 708(b)(7)(i) expressly makes public letters of recommendation “submitted in relation to the appointment of an individual to fill a vacancy in elected office.”  You can review section 708(b)(7) here

Furthermore, records in the possession of a government agency that document government transactions or activities are presumptively public, unless exempt under section 708, protected by a lawful privilege, or confidential under state or federal law or court order.  There is no state or federal law that protects such candidate submissions generally, and there are no general court orders to that effect.  Additionally, there is no exception in section 708 of the Right to Know Law that exempts records submitted by candidates seeking to fill a vacant elected office. The personnel exemption to the law applies to employee records and application materials for those “not hired” by an agency.  Seeking and holding an elected office is distinguishable from employment, and the personnel exemption in the RTKL should not apply to limit access to materials submitted by candidates seeking to fill an elected office.   

Seeking an elected office is public through the campaign and general election process, and the procedure to fill a vacancy in elected office is no less public. The Sunshine Act and Right to Know Law make clear that the law presumes public access to discussions and records related to filling a vacancy in elected office. 

As always, this is not intended to be, nor should it be construed as, legal advice.  Please contact an attorney or the Legal Hotline at (717) 703-3080 with questions.

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