Q: A local township supervisor has been ill but has been calling in to regularly scheduled public meetings in order to vote. Does this create a Sunshine Act problem?
A: Not necessarily. The Sunshine Act has been interpreted to allow participation via telephone – by some public bodies - as long as the participant can fully participate in the meeting leading up to the vote and the public can hear and be heard by the absent member.
In Babac v. Pa Milk Marketing Board, 613 A.2d 551 (Pa. 1992), the Pennsylvania Supreme Court heard a case involving the use of speaker phones during public meetings by the Milk Marketing Board. The Court held that Board members did not have to be physically present at all of the Board's meetings, noting that under the Sunshine Act, participation via speaker phone is acceptable as long as “the absent members are able to hear the comments of and speak to all those present at the meeting and all those present at the meeting are able to hear the comments of and speak to such absent members contemporaneously.”
Still, the Milk Marketing Board case doesn't resolve this issue for all local governments in Pennsylvania, because there are specific statutory provisions that govern the conduct of meetings by various municipalities. For example, the Borough Code, 8 Pa.C.S. §1001, allows borough council members to participate via telecommunication device in certain circumstances, but only if a quorum of board members are physically present at the public meeting.
Where it is not prohibited by statute, effective, two-way communication is necessary in order for public officials to use electronic communications during public meetings. If the elected official cannot hear and be heard by all present, using an electronic communication device to participate in a public meeting is not appropriate.
As always, this is not intended to be, nor should it be construed as, legal advice. Please contact your newspaper’s private attorney or the Legal Hotline at (717) 703-3080 with questions.