Guide to the Pennsylvania Sunshine Act
Pennsylvania’s Sunshine Act
The public’s right to attend governmental agency meetings in Pennsylvania is based upon a state law called the “Sunshine Act.” The Sunshine Act applies to public agencies, which include Pennsylvania executive branch agencies, the General Assembly, and municipal authorities, such as township boards of supervisors and local school boards. The Act also covers any organization created by statute that declares in substance that it performs an essential governmental function, exercises governmental authority and takes official action.
The Sunshine Act mandates that agencies are required to conduct their deliberations in public. As with many laws, there are exceptions to the public meeting requirements of the Sunshine Act, but the law begins with a statement of intent, stressing the right of the public to witness the decision-making process to ensure that the democratic process functions property.
Helpful links about the Sunshine Act
- Citizen’s Guide to The Pennsylvania Sunshine Act
- Misconceptions about the Sunshine Act
- Objecting to a Closed Meeting
- Office of Open Records
- Pennsylvania Freedom of Information Coalition
- Sunshine Act Compliance Concerns
- The Sunshine Act
- What’s wrong with the Sunshine Act?
Questions or concerns about Pennsylvania’s Sunshine Act? Contact the PNA’s Legal Hotline for assistance by calling 717-703-3080 or by emailing Legal@PANewsMedia.org.
Objecting to a Closed Meeting
What to do when a meeting is closed?
(Mr. Or Madame Chairman): I am _______, a reporter for__________newspaper. I protest the closing of this meeting, the reason you have listed for closing the meeting does not meet the provisions of Pennsylvania’s Open Meeting Law. I ask that you reconsider your intent to discuss this matter in executive session. I further ask that this protest be recorded in the official minutes of the meeting, as required by law.
Provided by the PENNSYLVANIA NEWSMEDIA ASSOCIATION
What's wrong with the Sunshine Act?
PNA members may use this editorial freely for reprint in their own publications.
From the PNA Legal Department
Here at the Pennsylvania NewsMedia Association, we are often asked what’s wrong with Pennsylvania’s open meetings law, also called the Sunshine Act. Why is it that public officials across the state are able to conduct so much public business behind closed doors, and without any repercussions? We talk to hundreds of reporters and editors during the course of a year about closed meetings and “secret” decisions. Last month alone, our Legal Hotline received about 50 telephone calls from reporters with questions about whether agencies were complying with the Sunshine Act.
As a result of these conversations, it has become clear that the main problem with the Sunshine Act is not really the Act itself. The real problem with the Act — and this probably won’t surprise anyone — is that public officials ignore it. The penalties under the Act are insignificant and very rarely imposed. Worse, the Pennsylvania courts have repeatedly permitted public agencies to ignore the Act’s requirements by holding that agencies can “cure” Sunshine Act violations. This means that they can discuss and decide matters in private, in violation of the Act, and as long as they “redo” their vote in public, their decision can stand. But this misses the whole point of the Sunshine Act.
The purpose of the Sunshine Act is to allow the public to witness agency decisions and, with limited exceptions, the discussions leading up to those decisions. Allowing agencies to “cure” violations so easily deprives the public of any ability to understand how decisions were reached. And it provides very little incentive for agencies to follow the strict requirements of the Act.
Some agencies routinely conduct the public’s business in private. They hold “informational sessions” or “fact-finding meetings” and claim that because they are not making any decisions, they can conduct them in private. They bring in outside consultants to talk about school or government policy, but claim that because they are “gathering information” or conducting a “question and answer session” with the consultant, and not discussing the matter among themselves, they can hold the meeting behind closed doors. They pass out secret “board packets,” and then vote on items without identifying or describing them to the public in attendance. They engage in “serial” phone calls or group e-mails, or take “phone polls” on issues.
The list goes on and on.
It has become obvious that the only hope for stopping these practices is to amend the Act to specifically prohibit them, and to strengthen the penalty provisions to create a real disincentive to violating the Act. The Act should make it even clearer that discussions, including informational and “fact-finding” sessions, must be open (unless they qualify under an executive session exception). It must specifically address e-mail communications, make it clear that agencies cannot “cure” a violation simply by retaking a vote in public, and require agencies to keep minutes or recordings of “private” sessions. That way, if they are found to have met in violation of the Act, the public will have the opportunity to witness and understand the agency’s “secret” discussions.
Public officials are making critical decisions and committing your money to projects every day. They decide the salaries and benefits of public employees. They decide how much your local taxes are going to be. They decide when it is necessary to commit millions of dollars to a new high school, and they decide when and how much to pay to settle a lawsuit. Too often, the public is cut out of vital discussions and decisions. It’s time to change that.
The Pennsylvania NewsMedia Association routinely collects examples of Sunshine Act violations across the state to share with legislators as we advocate for improvements to the law. Anyone interested in sharing a Sunshine Act story should feel free to send it to the Pennsylvania NewsMedia Association, 3899 North Front Street, Harrisburg, PA 17110, or e-mail it to firstname.lastname@example.org.
An act requiring public agencies to hold certain meetings and hearings open to the public; and providing penalties.
Note: Changes in section 714 go into effect Monday, September 5, 2011.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
Section 701. Short title of chapter
This chapter shall be known and may be cited as the Sunshine Act.
Section 702. Legislative findings and declaration
(a) Findings. The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.
(b) Declarations. The General Assembly hereby declares it to be the public policy of this Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this chapter.
Section 703. Definitions
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“Administrative action.” The execution of policies relating to persons or things as previously authorized or required by official action of the agency adopted at an open meeting of the agency. The term does not, however, include the deliberation of agency business.
“Agency.” The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following: the General Assembly, the executive branch of the government of this Commonwealth, including the Governor’s Cabinet when meeting on official policymaking business, any board, council, authority or commission of the Commonwealth or of any political subdivision of the Commonwealth or any State, municipal, township or school authority, school board, school governing body, commission, the boards of trustees of all State-aided colleges and universities, the councils of trustees of all State-owned colleges and universities, the boards of trustees of all State-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and through the joint action of its members exercises governmental authority and takes official action. The term shall include the governing board of any nonprofit corporation which by a mutually binding legal written agreement with a community college, or State-aided, State-owned or State-related institution of higher education is granted legally enforceable supervisory and advisory powers regarding the degree programs of the institution of higher education. The term does not include a caucus or a meeting of an ethics committee created under rules of the Senate or House of Representatives.
“Agency business.” The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action.
“Caucus.” A gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action in the General Assembly.
“Conference.” Any training program or seminar, or any session arranged by State or Federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities.
“Deliberation.” The discussion of agency business held for the purpose of making a decision.
“Emergency meeting.” A meeting called for the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.
“Executive session.” A meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.
“Litigation.” Any pending, proposed or current action or matter subject to appeal before a court of law or administrative adjudicative body, the decision of which may be appealed to a court of law.
“Meeting.” Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.
(1) Recommendations made by an agency pursuant to statute, ordinance or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.
“Political subdivision.” Any county, city, borough, incorporated town, township, school district, intermediate unit, vocational school district or county institution district.
(1) For a meeting:
(i) Publication of notice of the place, date and time of a meeting in a newspaper of general circulation, as defined by 45 Pa.C.S. Â§ 101 (relating to definitions), which is published and circulated in the political subdivision where the meeting will be held, or in a newspaper of general circulation which has a bona fide paid circulation in the political subdivision equal to or greater than any newspaper published in the political subdivision.
(ii) Posting a notice of the place, date and time of a meeting prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held.
(iii) Giving notice to parties under section 709(c) (relating to public notice).
(2) For a recessed or reconvened meeting:
(i) Posting a notice of the place, date and time of the meeting prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held.
(ii) Giving notice to parties under section 709(c).
“Special meeting.” A meeting scheduled by an agency after the agency’s regular schedule of meetings has been established.
Section 704. Open meetings
Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered).
Section 705. Recording of votes
In all meetings of agencies, the vote of each member who actually votes on any resolution, rule, order, regulation, ordinance or the setting of official policy must be publicly cast and, in the case of roll call votes, recorded.
Section 706. Minutes of meetings, public records and recording of meetings
Written minutes shall be kept of all open meetings of agencies. The minutes shall include:
(1) The date, time and place of the meeting.
(2) The names of members present.
(3) The substance of all official actions and a record by individual member of the roll call votes taken.
(4) The names of all citizens who appeared officially and the subject of their testimony.
Section 707. Exceptions to open meetings
(a) Executive session. An agency may hold an executive session under section 708 (relating to executive sessions).
(b) Conference. An agency is authorized to participate in a conference which need not be open to the public. Deliberation of agency business may not occur at a conference.
(c) Certain working sessions. Boards of auditors may conduct working sessions not open to the public for the purpose of examining, analyzing, discussing and deliberating the various accounts and records with respect to which such boards are responsible, so long as official action of a board with respect to such records and accounts is taken at a meeting open to the public and subject to the provisions of this chapter.
Section 708. Executive sessions
(a) Purpose. An agency may hold an executive session for one or more of the following reasons:
(1) To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency’s decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law, including those granted by Title 2 (relating to administrative law and procedure). The provisions of this paragraph shall not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office.
(2) To hold information, strategy and negotiation sessions related to the negotiation or arbitration of a collective bargaining agreement or, in the absence of a collective bargaining unit, related to labor relations and arbitration.
(3) To consider the purchase or lease of real property up to the time an option to purchase or lease the real property is obtained or up to the time an agreement to purchase or lease such property is obtained if the agreement is obtained directly without an option.
(4) To consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.
(5) To review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matters related to the initiation and conduct of investigations of possible or certain violations of the law and quasi-judicial deliberations.
(6) For duly constituted committees of a board or council of trustees of a State-owned, State-aided or State-related college or university or community college or of the Board of Governors of the State System of Higher Education to discuss matters of academic admission or standings.
(7) To discuss, plan or review matters and records that are deemed necessary for emergency preparedness, protection of public safety and security of all property in a manner that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection.
(b) Procedure. The executive session may be held during an open meeting, at the conclusion of an open meeting, or may be announced for a future time. The reason for holding the executive session must be announced at the open meeting occurring immediately prior or subsequent to the executive session. If the executive session is not announced for a future specific time, members of the agency shall be notified 24 hours in advance of the time of the convening of the meeting specifying the date, time, location and purpose of the executive session.
(c) Limitation. Official action on discussions held pursuant to subsection (a) shall be taken at an open meeting. Nothing in this section or section 707 (relating to exceptions to open meetings) shall be construed to require that any meeting be closed to the public, nor shall any executive session be used as a subterfuge to defeat the purposes of section 704 (relating to open meetings).
Section 709. Public notice
(a) Meetings. An agency shall give public notice of its first regular meeting of each calendar or fiscal year not less than three days in advance of the meeting and shall give public notice of the schedule of its remaining regular meetings. An agency shall give public notice of each special meeting or each rescheduled regular or special meeting at least 24 hours in advance of the time of the convening of the meeting specified in the notice. Public notice is not required in the case of an emergency meeting or a conference. Professional licensing boards within the Bureau of Professional and Occupational Affairs of the Department of State of the Commonwealth shall include in the public notice each matter involving a proposal to revoke, suspend or restrict a license.
(b) Notice. With respect to any provision of this chapter that requires public notice to be given by a certain date, the agency, to satisfy its legal obligation, must give notice in time to allow it to be published or circulated within the political subdivision where the principal office of the agency is located or the meeting will occur before the date of the specified meeting.
(c) Copies. In addition to the public notice required by this section, the agency holding a meeting shall supply, upon request, copies of the public notice thereof to any newspaper of general circulation in the political subdivision in which the meeting will be held, to any radio or television station which regularly broadcasts into the political subdivision and to any interested parties if the newspaper, station or party provides the agency with a stamped, self-addressed envelope prior to the meeting.
(d) Meeting of the General Assembly in Capitol Complex. Notwithstanding any provision of this section to the contrary, in case of sessions of the General Assembly, all meetings of legislative committees held within the Capitol Complex where bills are considered, including conference committees, all legislative hearings held within the Capitol Complex where testimony is taken and all meetings of legislative commissions held within the Capitol Complex, the requirement for public notice thereof shall be complied with if, not later than the preceding day:
(1) The supervisor of the newsroom of the State Capitol Building in Harrisburg is supplied for distribution to the members of the Pennsylvania Legislative Correspondents Association with a minimum of 30 copies of the notice of the date, time and place of each session, meeting or hearing.
(2) There is posting of the copy of the notice at public places within the Main Capitol Building designated by the Secretary of the Senate and the Chief Clerk of the House of Representatives.
(e) Announcement. Notwithstanding any provision of this chapter to the contrary, committees may be called into session in accordance with the provisions of the Rules of the Senate or the House of Representatives and an announcement by the presiding officer of the Senate or the House of Representatives. The announcement shall be made in open session of the Senate or the House of Representatives.
Section 710. Rules and regulations for conduct of meetings
Nothing in this chapter shall prohibit the agency from adopting by official action the rules and regulations necessary for the conduct of its meetings and the maintenance of order. The rules and regulations shall not be made to violate the intent of this chapter.
Section 710.1 Public participation
(a) General rule. Except as provided in subsection (d), the board or council of a political subdivision, or of an authority created by a political subdivision shall provide a reasonable opportunity at each advertised regular meeting and advertised special meeting for residents of the political subdivision or of the authority created by a political subdivision or for taxpayers of the political subdivision or of the authority created by a political subdivision or for both, to comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action. The board or council has the option to accept all public comment at the beginning of the meeting. If the board or council determines that there is not sufficient time at a meeting for residents of the political subdivision or of the authority created by a political subdivision or for taxpayers of the political subdivision or of the authority created by the political subdivision or for both to comment, the board or council may defer the comment period to the next regular meeting or to a special meeting occurring in advance of the next regular meeting.
(b) Limitation on judicial relief. If a board or council of a political subdivision or an authority created by a political subdivision has complied with the provisions of subsection (a), the judicial relief under section 713 (relating to business transacted at unauthorized meeting void) shall not be available on a specific action solely on the basis of lack of comment on that action.
(c) Objection. Any person has the right to raise an objection at any time to a perceived violation of this chapter at any meeting of a board or council of a political subdivision or an authority created by a political subdivision.
(d) Exception. The board or council of a political subdivision or of an authority created by a political subdivision which had, before Jan. 1, 1993, established a practice or policy of holding special meetings solely for the purpose of public comment in advance of advertised regular meetings shall be exempt from the provisions of subsection (a).
Section 711. Use of equipment during meetings
(a) Recording devices. Except as provided in subsection (b), a person attending a meeting of an agency shall have the right to use recording devices to record all the proceedings. Nothing in this section shall prohibit the agency from adopting and enforcing reasonable rules for their use under section 710 (relating to rules and regulations for conduct of meetings).
(b) Rules of the Senate and House of Representatives. The Senate and House of Representatives may adopt rules governing the recording or broadcast of their sessions and meetings and hearings of committees.
Section 712. General Assembly meetings covered
Notwithstanding any other provision, for the purpose of this chapter, meetings of the General Assembly which are covered are as follows: all meetings of committees where bills are considered, all hearings where testimony is taken and all sessions of the Senate and the House of Representatives. Not included in the intent of this chapter are caucuses or meetings of any ethics committee created pursuant to the Rules of the Senate or the House of Representatives.
Section 713. Business transacted at unauthorized meeting void
A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. The court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any or all official action taken at the meeting shall be invalid. Should the court determine that the meeting met the requirements of this chapter, all official action taken at the meeting shall be fully effective.
Section 714. Penalty
(A) Fines and Costs. Any member of any agency who participates in a meeting with the intent and purpose by that member of violating this chapter commits a summary offense and shall, upon conviction, be sentenced to pay:
(1) For a first offense, the costs of prosecution plus a fine of at least $100 and, in the discretion of the sentencing authority, of not more than $1,000.
(2) For a second or subsequent offense, the costs of prosecution plus a fine of at least $500 and, in the discretion of the sentencing authority, of not more than $2,000.
(B) Payment. An agency shall not make a payment on behalf of or reimburse a member of an agency for a fine or cost resulting from the member’s violation of this section.
Section 714.1. Attorney fees
If the court determines that an agency willfully or with wanton disregard violated a provision of this chapter, in whole or in part, the court shall award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs. If the court finds that the legal challenge was of a frivolous nature or was brought with no substantial justification, the court shall award the prevailing party reasonable attorney fees and costs of litigation or an appropriate portion of the fees and costs.
Section 715. Jurisdiction and venue of judicial proceedings
The Commonwealth Court shall have original jurisdiction of actions involving State agencies and the courts of common pleas shall have original jurisdiction of actions involving other agencies to render declaratory judgements or to enforce this chapter by injunction or other remedy deemed appropriate by the court. The action may be brought by any person where the agency whose act is complained of is located or where the act complained of occurred.
Section 716. Confidentiality
All acts and parts of acts are repealed insofar as they are inconsistent with this chapter, excepting those statutes which specifically provide for the confidentiality of information. Those deliberations or official actions which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matter related to the investigation of possible or certain violations of the law and quasi-judicial deliberations, shall not fall within the scope of this chapter.
Misconceptions about the Sunshine Act
Misconceptions about the Sunshine Act abound, Part 1
PNA’s legal department receives hundreds of hotline calls each year about public access to government meetings and records. Every day a novel problem or question seems to arrive on our doorstep, thanks to the resourcefulness of reporters and the seemingly limitless imagination of public officials and gadflies.
On the other hand, the legal department receives many hotline questions that are distressingly familiar, particularly with respect to the Sunshine Act. Some of the questions refer to the technical requirements of the Act that are difficult to remember or understand. The repetitiveness of these questions is understandable; most reporters need not commit the Act’s finer points to memory.
Other questions reveal patterns of misconception about the Sunshine Act’s basic requirements. Reporters who regularly cover local government meetings have probably encountered some or all of these misconceptions, some of which have become routine in certain quarters.
The PNA legal department has addressed some of the most common misconceptions with regard to the Sunshine Act, and there’s no better way to begin than to address the most common and insidious one of all. It’s the one we call, “It wasn’t a meeting, it was a (insert any other noun here).”
When an agency as defined in the Act (for example, a school board or a board of supervisors) has a prearranged gathering attended or participated in by a quorum of its members, the gathering is a meeting. You can call it a work session or a conference or getting together at the diner after the meeting, information gathering, or a fact-finding session, but it’s nonetheless a meeting in the eyes of the law. The gathering place is a matter of complete indifference under the Sunshine Act’s terms. A meeting can happen anywhere inside or outside a government building; what matters is whether a quorum of the agency is present. A quorum is the number of public officials necessary to take official action, typically one more than half the total number of public officials serving on the agency.
Meetings may or may not be open to the public. Whenever a meeting occurs for the purpose of deliberation or taking official action, it must be open to the public and all the formalities associated with a public meeting – notice, public participation, minute-taking, etc. – must be observed by the agency. Deliberation is broadly defined in the Act as discussion for the purpose of making a decision about agency business. Official action is also a defined term, and it encompasses a broad range of activity including making recommendations or decisions, creating policy and voting.
The Act also gives agencies the authority to hold “executive sessions,” which are meetings open only to agency members and, in some circumstances, other people whose presence is necessary to conduct the business of the meeting. Training programs arranged by State or Federal agencies for local agency members, called “conferences” in the Act, are also meetings that do not have to be open to the public.
Although the Act clearly defines the elements that combine to create a “meeting,” hotline calls reveal a widespread misconception that an agency may avoid the requirement of the Act by calling a gathering of its members something besides a meeting. Reporters who learn of an evening gathering at an agency member’s house are told that it wasn’t a meeting, it was a “pre-meeting planning session.” When members meet unannounced and in private with a contractor to discuss agency building or procurement plans, they defend their action by calling the event a “discussion session” that is outside the scope of the Sunshine Act. The definition of “meeting” is the most important element of the Sunshine Act. For that reason, it is too important to be misunderstood or dismissed with wordplay. Moreover, the definition is the foundation on which all other elements of the Act stand. If there is a quorum of an agency discussing agency business, it is a “meeting” for purposes of the Sunshine Act.
Misconceptions about the Sunshine Act abound, Part 2
The Sunshine Act generally requires agencies to hold meetings open to the public whenever they take official action and conduct deliberations. However, the open meeting requirement is subject to some exceptions. Conferences – training programs or seminars designed solely to inform agency members about their official responsibilities – may be closed to the public. Caucus and ethics committee meetings of the state House and Senate may also be closed to the public. A board of auditors does not have to open its working sessions to the public as long as the board’s official action with respect to the records being audited is taken at an open meeting.
The exception that generates the most litigation and frustrates more reporters and citizens than all other exceptions combined is the executive session exception. The Act defines an executive session as “[a] meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.”
Based on PNA legal hotline calls, the greatest misconception about the executive session is that it can be invoked whenever agency members believe it would be in their best interest to resolve a matter in private. After watching some agencies at work, one could be forgiven for assuming that executive sessions are the meeting norm and open meetings are, in fact, the exception to that norm.
Fortunately, the Sunshine Act clearly establishes that the legitimate purposes of an executive session are fairly limited. First and most importantly, official action on matters discussed at an executive session must always take place at an open meeting. In other words, an executive session at which agency members take a vote, establish policy, decide agency business or make official recommendations is an unlawful meeting. Given the incidence of hotline calls regarding decisions made during executive sessions, it seems that many officials are unaware of this limitation as well as the statutory admonition that an executive session shall not be used “as a subterfuge to defeat the purposes of [the open meeting requirement].”
The other important limitation is that an executive session may be held only for the reasons stated in the Act. The Act does not give agency members the discretion to hold a meeting behind closed doors because they, the members, have some reason of their own for believing a private meeting would be best.
Misconceptions about Sunshine Act abound, Part 3
The most prominent exception to the open meeting requirement concerns the executive session, which is defined as a meeting from which the public can be excluded. This article will focus on misconceptions about the reasons for an executive session and the statutory
requirements for holding an executive session.
The Act states unequivocally that an agency may hold an executive session for one or more of the following reasons: – to discuss personnel matters, including the hiring, promotion, disciplining or dismissing of “any specific prospective public officer or employee or current
public officer or employee employed or appointed by the agency,” but not including filling vacancies in any elective office; – to hold information, strategy and negotiation sessions related to collective bargaining agreements or arbitration;
- to consider the purchase or lease of real estate up to the time an option or agreement is obtained; – to consult with its attorney or other professional advisor about information or strategy regarding litigation or issues as to which identifiable complaints are
expected to be filed; – to review and discuss agency business which, if reviewed or discussed in public, would lead to the disclosure of information recognized as confidential or privileged under law, including the initiation and conduct of investigations of possible violations of the law and quasi-judicial deliberations; and (for committees of the governing board of a state-owned, state-aided or state-related college or university or community college or the Board of Governors of the State System of Higher Education only) to discuss matters of academic admission or standings.
- to discuss, plan or review matters and records that are deemed necessary for emergency preparedness, protection of public safety and security of all property in a manner that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection.
The first reason, commonly called the “personnel exception,” is one of the two most frequently cited as justification for holding an executive session. This reason applies whenever an agency meets to discuss a personnel action (hiring, firing, promoting, etc.) regarding a specific person who is a current or prospective employee or official of the agency.
The “personnel exception” does not cover discussions that relate to a general class of public officers or employees or any other matter that does not affect a specific person or persons. For example, by its terms the Act does not authorize an agency to hold a private discussion about creating new jobs or budgeting for general personnel expenses.
Also, the Act does not apply when an agency meets to discuss the appointment of someone to fill a vacancy in an elective office. When, for example, a township board of supervisors meets to discuss the selection of someone to fill a mid-term vacancy on the board, it may not hold an executive session under the “personnel exception.”
The public officer or employee who is the subject of discussion has the right to request, in writing, that the matter be discussed at an open meeting. Although the Act does not expressly say so, it implies that the agency should defer to the officer’s or employee’s preference for an open meeting.
Some agencies, citing liability or individual privacy concerns, have denied a request for open meeting discussion, but the courts have not definitively ruled on their authority to do so. However, the Act does state that an agency shall not discuss a personnel matter in executive session if that serves to deny any public officer or employee the due process rights granted by law.
The Pennsylvania Commonwealth Court has ruled that the “personnel exception” does not apply when an agency meets to discuss an independent contractor or consultant. Such persons, the court said, are not “appointed by the agency” in the sense that the legislature intended.
Therefore, the “personnel exception” does not permit an agency to meet in executive session to discuss the engagement of an independent contractor, or the termination or extension of an independent contractor’s agreement.
Somewhat related to the “personnel exception” is the Act’s provision for information, strategy and negotiation sessions related to labor relations. The courts have said that the Act does not require an agency to negotiate a labor contract in public session. Therefore, an agency may meet in executive session to receive information and conduct discussions about the negotiation of a collective bargaining agreement with its employees. The exception also applies when an agency meets to hold discussions regarding a union grievance or labor relations arbitration.
It is particularly important to recall a point touched on earlier: An agency may not, under any circumstances, vote or take any other forms of official action during an executive session. In the context of “personnel exception” cases, the courts have repeatedly enforced this point of law. For example, a school board’s executive session vote to increase its superintendent’s salary was declared illegal by the Commonwealth Court.
The same court has said that while an agency may meet in executive session to discuss and narrow the field of candidates for a specific job, it must meet in public to decide which candidate to hire or appoint. The court has struck down an employee promotion decision that an agency discussed and then voted on in executive session. In regard to both the personnel and labor relations matters, the principle is equally valid that discussion and only discussion is authorized at an executive session.
Misconceptions about Sunshine Act abound, Part 4
Based on PNA’s experience, after personnel matters, agencies most often cite litigation or anticipated litigation as justification for an executive session. The Sunshine Act states that an agency may meet in executive session to consult with its attorney or other professional advisor regarding litigation or issues as to which identifiable complaints are expected to be filed. The courts have held that an agency which is the defendant in a lawsuit related to a services contract may meet with its lawyer in executive session to discuss the allegations of the plaintiff’s complaint.
In regard to the “litigation exception,” the authorized purpose of an executive session is for the agency members to have a discussion with their lawyer or another professional advisor. Any official action resulting from the discussion or otherwise related to the lawsuit must occur at a meeting open to the public.
One court held that an agency violated the Sunshine Act when it met in executive session to discuss the filing of litigation, and ended the meeting by voting to take that action. The court ruled that the agency should have convened in open session to conduct the vote on the filing of its lawsuit.
This exception exists because if an agency were required to consult with its lawyer in open session, the discussion would be quite limited, if not impossible, unless the agency were prepared to waive attorney-client confidentiality. Furthermore, the agency, and ultimately the public, would be severely prejudiced in court proceedings or settlement negotiations if it were forced to discuss openly with its lawyer all the information relevant to a lawsuit. PNA’s legal hotline calls reveal that many agencies and their solicitors misconceive that any
hypothetical possibility of a lawsuit justifies a closed-door discussion. Although the Sunshine Act speaks of “litigation” and “issues on which identifiable complaints are expected to be filed,” many local government agencies treat the exception as though it applies to every situation in which a lawsuit could imaginably arise.
Most issues faced by government agencies can conceivably invite or involve litigation. If the General Assembly intended this exception to be interpreted as broadly as it is by many agencies, there would be little justification for any public discussion of agency business. The only reasonable interpretation of the Sunshine Act is that an agency may discuss, in private, information or strategy related to an active lawsuit or a matter as to which an expectation of specifically identifiable litigation by, against or on behalf of the agency exists.
Once litigation commences in open court, the agency can still rely on the litigation exception to discuss strategies or exchange information with its lawyer. However, if a discussion of the litigation does not involve the lawyer or another professional advisor, there is no justification for the agency to meet in closed session.
What does the statute mean by “other professional advisor?” Agencies can seek assistance and advice from a professional other than a lawyer. For example, if the subject of a lawsuit or an expected lawsuit involves a disputed property line, the agency may confer with a civil engineer, registered surveyor or certified property appraiser regarding the facts of the dispute or litigation strategies.
There is no reason to suppose that the General Assembly meant to treat agency employees differently than non-employees in regard to the litigation exception. The agency’s lawyer or other professional advisor may therefore be an “insider,” such as the agency solicitor, or a professional retained exclusively for the purposes of litigation.
Misconceptions about Sunshine Act abound, Part 5
Executive sessions are the most common exceptions to the Act’s requirement that agency meetings involving official action or deliberation be open to the public. We continue to examine executive sessions, with a focus on some of the issues less commonly encountered by journalists. Their experience is reflected in the body of judicial opinions that interpret the Act, among which there is little reference to these reasons for a private agency meeting.
The Act allows an agency to “consider” the purchase or lease of real property in executive session. Real property is land or things erected or affixed to land, as opposed to personal property, the broad category of other things that are subject to legal ownership. Although the term “consider” is not defined in the Act, it’s reasonable to assume the legislature intended it to mean, “discuss.” Elsewhere in the executive session provision of the Act, the legislature expressly allows “negotiation sessions” (with respect to labor agreements). It does not give agencies similar latitude with respect to the purchase or lease of real property. The legislature apparently chose not to permit agency members meeting as a body to negotiate privately the acquisition of real property.
This conclusion is reinforced by the fact that the “real property exception” does not contemplate the participation of non-members in the executive session. The “litigation exception,” expressly permits consultation between the agency members and their lawyer or other experts during an executive session. The “real property exception” does not authorize persons other than agency members to participate in the executive session. The Act limits the time period during which an agency may meet in private to consider real property acquisition. It states that such consideration may occur “up to the time an option to purchase or lease the real property is obtained or up to the time an agreement to purchase or lease such property is obtained [if no option is involved].” An option is simply an agreement that gives a person the right to buy a property, if he wishes, at a fixed price within a specified time period.
The apparent purpose of the real property exception is to allow agency members to discuss the purchase of property prospectively without alerting the owner or possible competitors who would otherwise gain a negotiating advantage. If an agency has already purchased a property (or the right to buy it), the rationale for private discussion no longer exists. Confidentiality of another sort is the rationale for the next type of executive session. The Act allows an agency to “review and discuss” agency business that, if discussed in public, would violate “a lawful privilege or lead to the disclosure of information or confidentiality protected by law.” The Act includes within the scope of this open meeting exception “matters related to the initiation and conduct of investigations [of law violations]” and “quasi-judicial deliberations.”
The purpose of this exception is to allow agency members to discuss information made confidential by law that is pertinent to the agency’s business. Pennsylvania and Federal laws make a wide variety of information confidential, including income tax returns, medical records, and public assistance grants. If discussion or quasi-judicial deliberation of such information is required, an agency may hold an executive session for that purpose. “Quasi-judicial deliberations” refers to the consideration of evidentiary facts and legal principles in preparation for the issuance of a ruling regarding someone’s rights or liabilities. For example, an agency would engage in such a process after a hearing in order to decide whether to issue or revoke a license or grant or deny a zoning variance.
In order to hold an executive session pursuant to this exception, the agency must have a need to discuss information recognized as confidential, such as its referral of a possible criminal offense to an investigative agency or the medical records of an employee. Many times, such information does not routinely come under the scrutiny of local government, or, if it does, it is dealt with at the administrative level or as part of an executive session called for a different – although related – reason.
The next reason for an executive session is really self-explanatory. The Act states that “duly constituted committees” of the governing bodies of state-owned, state-related and state aided institutions of higher education may meet in executive session to discuss matters of academic admission or standing. Since a student’s academic performance is generally regarded as a private matter under current law, it is not surprising that the legislature would allow a college admissions or academic standing committee to discuss such a matter in private.
The final reason for an executive session was added in 2018, largely in response to concerns about mass shootings in schools and other public places. This provision allows executive sessions “[T]o discuss, plan or review matters and records that are deemed necessary for emergency preparedness, protection of public safety and security of all property in a manner that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection.”
It is important to remember this exception does not give agencies unfettered discretion to discuss all safety-related issues behind closed doors, and any alleged misuse of the executive session is subject to challenge. For example, the discussion about whether to create a school safety officer position would not be appropriate for executive session under this exception because the discussion does not fit the requirements of the law. School safety officers operate in the open and in full view of fellow staff, students and the general public. As such, whether to create and fund such a position within a school should be discussed at a public meeting. In contrast, the discussion about a security study that highlights shortcomings in an agency’s security or safety plan could be appropriate for a safety executive session under the Sunshine Act.