Legal Hotline: New Safety Executive Session

Legal Hotline: New Safety Executive Session

PNA Legal Hotline

Q: Is there a new safety and security executive session in the Sunshine Act, and if so, what does it allow?

A: There is a new executive session related to safety and security, but it is important to remember that it does not cover every discussion related to safety or security. As with all other executive session exemptions, the exception must be narrowly construed consistent with the plain letter and intent of the Sunshine Act.

The Sunshine Act was amended in 2018 as a result of Senate Bill 1078 (Tomlinson), Act 156 of 2018. The bill was approved in October and became effective December 24, 2018.

The safety and security executive session allows agencies “[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.”

This exception is similar to, but not the same as, the safety and security exemption added to the School Code under Act 39 of 2018.

Act 39 was passed by the General Assembly and signed into law by the Governor on June 22, 2018. The Act, among other things, contains a provision that creates an executive session related to school safety. The law applies only to “school entities” which is defined to include:

  • School districts
  • Intermediate units
  • Joint schools
  • Area vocation-technical schools
  • Charter schools
  • Regional charter schools
  • Cyber-charter schools

No other type of agency can assert this executive session as a basis for excluding the public, although they may be able to cite the more general exemption under the Sunshine Act.
A school entity can hold an executive session under Act 39 to plan, review or discuss matters related to school safety, if public discussion would:

  • Be reasonably likely to impair the effectiveness of such measures; OR
  • Create a reasonable likelihood of jeopardizing the safety or security of an individual or a school, including a building, public utility, resource, infrastructure, facility or information storage system.
  • Be reasonably likely to impair the effectiveness of such measures; OR
  • Create a reasonable likelihood of jeopardizing the safety or security of an individual or a school, including a building, public utility, resource, infrastructure, facility or information storage system.

It is important to remember that neither the Sunshine Act or the changes to the School Code 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 Act 39 because the discussion does not fit the requirements of either 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 school or agency security or weaknesses in a safety plan could be appropriate for an Act 39 executive session or a safety executive session under the Sunshine Act.

It is also important to recognize that neither the Sunshine Act or Act 39 require school entities to hold executive sessions, and safety issues can, and in many cases must be, discussed during a public meeting. Likewise, neither law allows official action (votes) to occur outside a public meeting, and the general rule of the Sunshine Act requires a meaningful opportunity for public comment before all official action takes place.

As always, this is not intended to be, nor should it be construed as, legal advice. If your newsroom encounters issues with Act 39 or Sunshine Act issues, please contact the PNA Legal Hotline at (717) 703-3080.