Misconceptions about Sunshine Act abound, Part 4

Based on PNA’s experience, after personnel matters, agencies most often cite litigation or anticipated litigation as justification for an executive session. The Sunshine Act states that an agency may meet in executive session to consult with its attorney or other professional advisor regarding litigation or issues as to which identifiable complaints are expected to be filed. The courts have held that an agency which is the defendant in a lawsuit related to a services contract may meet with its lawyer in executive session to discuss the allegations of the plaintiff’s complaint.

In regard to the “litigation exception,” the authorized purpose of an executive session is for the agency members to have a discussion with their lawyer or another professional advisor. Any official action resulting from the discussion or otherwise related to the lawsuit must occur at a meeting open to the public.

One court held that an agency violated the Sunshine Act when it met in executive session to discuss the filing of litigation, and ended the meeting by voting to take that action. The court ruled that the agency should have convened in open session to conduct the vote on the filing of its lawsuit.

This exception exists because if an agency were required to consult with its lawyer in open session, the discussion would be quite limited, if not impossible, unless the agency were prepared to waive attorney-client confidentiality. Furthermore, the agency, and ultimately the public, would be severely prejudiced in court proceedings or settlement negotiations if it were forced to discuss openly with its lawyer all the information relevant to a lawsuit. PNA’s legal hotline calls reveal that many agencies and their solicitors misconceive that any hypothetical possibility of a lawsuit justifies a closed-door discussion. Although the Sunshine Act speaks of “litigation” and “issues on which identifiable complaints are expected to be filed,” many local government agencies treat the exception as though it applies to every situation in which a lawsuit could imaginably arise.

Most issues faced by government agencies can conceivably invite or involve litigation. If the General Assembly intended this exception to be interpreted as broadly as it is by many agencies, there would be little justification for any public discussion of agency business. The only reasonable interpretation of the Sunshine Act is that an agency may discuss, in private, information or strategy related to an active lawsuit or a matter as to which an expectation of specifically identifiable litigation by, against or on behalf of the agency exists.

Once litigation commences in open court, the agency can still rely on the litigation exception to discuss strategies or exchange information with its lawyer. However, if a discussion of the litigation does not involve the lawyer or another professional advisor, there is no justification for the agency to meet in closed session.

What does the statute mean by “other professional advisor?” Agencies can seek assistance and advice from a professional other than a lawyer. For example, if the subject of a lawsuit or an expected lawsuit involves a disputed property line, the agency may confer with a civil engineer, registered surveyor or certified property appraiser regarding the facts of the dispute or litigation strategies. There is no reason to suppose that the General Assembly meant to treat agency employees differently than non-employees in regard to the litigation exception. The agency’s lawyer or other professional advisor may therefore be an “insider,” such as the agency solicitor, or a professional retained exclusively for the purposes of litigation.