Legal Hotline: Sunshine Act and Public Comment Limits

Legal Hotline: Sunshine Act and Public Comment Limits

PNA Legal Hotline

Q: The Sunshine Act was just amended to require agencies to provide agendas in advance of public meetings. A local board is limiting public comment to agenda items only and won’t allow people to ask any questions. Is that OK?

A:  Senate Bill 554, Act 65 of 2021, amended the Sunshine Act to require agencies to provide meeting agendas in advance of and during public meetings. This is a positive move for government transparency and is intended to foster more public attendance and participation at public meetings. The law does not impact or otherwise limit the public’s ability to provide public comment.

Senate Bill 554, Act 65 of 2021, took effect at the end of August, and it requires agencies to provide at least 24 hours advance notice of the meeting agenda, including, at a minimum, a listing of each matter of agency business that will be or may be the subject of deliberation or official action at the upcoming meeting.  If the agency maintains a website, this agenda information must be posted on the website no later than 24 hours before the meeting is scheduled to take place. The agenda must also be posted at the meeting location and must be made available to individuals attending the meeting.

If an agency plans to talk about or take official action on a matter of agency business, it must note it on the agenda so that the public is informed and can attend the meeting, if they are so inclined. The law also limits the actions an agency can take on non-agenda matters, such as a general prohibition on taking official action on non-agenda items, but it does not, and was not intended to, limit the public’s ability to provide public comment or ask questions of public officials.

Public comment is governed by Section 710.1 of the Sunshine Act, which guarantees the public’s right to give meaningful comment “on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action.”  This provision of the law is broad, and it is intended to foster and encourage public participation on all manners of agency business, including non-agenda items. Limiting public comment to agenda items ignores the plain language and intent of the law. Further, the public has a right to bring non-agenda issues to the attention of elected officials and to ask questions about them. The law does not require elected officials to answer questions asked during public meetings, but many do, to the extent possible, in the interest of good government and to foster a positive, transparent relationship with constituents. Public comment on non-agenda items can also result in those issues being placed on future public meeting agendas for deliberation.

Many agencies utilize two public comment periods during public meetings: one for agenda items and one for non-agenda items. Agencies that use this kind of policy encourage people to participate on current issues and encourage people to bring issues to elected officials’ attention. Government functions best when it is aided by an informed, actively involved citizenry, and public comment is the primary means for public involvement.

Act 65 is intended to facilitate public attendance and participation at public meetings, and to foster better public understanding of an agency’s deliberations and decisions. Act 65 imposes certain limits on deliberations amongst public officials and official action, it does not, however, limit the public’s right to provide public comment or ask questions during public meetings.

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