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.