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.