Legal Hotline: Public Comments Prior to Meeting

Legal Hotline: Public Comments Prior to Meeting

PNA Legal Hotline

Q: A local agency is holding a virtual public meeting and it is requiring public comments to be submitted in writing 1 day prior to the meeting. However, the agency is not providing an agenda or other information about what topics will be discussed at the meeting and they’ve refused to answer my questions about the topics they plan to cover. Can they do that?

A: No, that is inconsistent with the requirements of the Sunshine Act and Act 15.

Section 710.1 of the Sunshine Act requires local agencies to provide a reasonable opportunity for public “to comment on matters of concern, official action or deliberation which are or may be before the board prior to taking official action.” The opportunity for public comment must be offered at all public meetings and it must occur prior to an agency taking official action (voting) on an item of business.

Act 15 of 2020 allows local agencies to hold public meetings virtually using advanced communication  technology during the COVID-19 disaster declaration. Similar to the public comment provisions of the Sunshine Act, Act 15 requires agencies to allow for public participation in a public meeting through an authorized telecommunication device or written comments. It also allows agencies to accept written comments at their physical address through United States mail or via an e-mail account designated by the entity to receive the comments.

The public participation requirements of Act 15 must be construed in accordance with the requirements of the Sunshine Act, which applies to remote public meetings with equal force. Since Act 15 was enacted in April of last year, it has been a common practice for agencies to accept, and in some cases require, public comments to be submitted in writing in advance of public meetings.

There is no express agenda requirement in the Sunshine Act, however, such a requirement is implied in situations where participation is not permitted during a virtual public meeting. If an agency requires public comments to be submitted in writing, in advance of a public meeting, it is incumbent on the agency to provide access to a meeting agenda or information about the topics to be discussed so the public can understand the issues and participate in a meaningful way. If the agency does not provide this basic information, it has not provided an opportunity for meaningful public comment in accordance with the Sunshine Act and Act 15 and it is subject to potential liability.  Similarly, if an issue that was not previously disclosed to the public comes up during a public meeting, the agency cannot take official action on that issue until there has been an opportunity for public comment. Obviously, a requirement to submit written comments in advance without the ability to participate during the meeting would be problematic in that situation, and it would likely mean that any official action on the new issue would have to be delayed until there has been an opportunity for meaningful public comment.

It is always in the public interest for agencies to release meeting agendas in advance of public meetings to facilitate public attendance and meaningful public participation, but it is especially important in situations where public comments are required to be submitted in advance of public meetings.

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