Misconceptions about the Sunshine Act
PNA’s legal department receives hundreds of hotline calls each year about public access to government meetings and records. Every day a novel problem or question seems to arrive on our doorstep, thanks to the resourcefulness of reporters and the seemingly limitless imagination of public officials and gadflies.
On the other hand, the legal department receives many hotline questions that are distressingly familiar, particularly with respect to the Sunshine Act. Some of the questions refer to the technical requirements of the Act that are difficult to remember or understand. The repetitiveness of these questions is understandable; most reporters need not commit the Act’s finer points to memory.
Other questions reveal patterns of misconception about the Sunshine Act’s basic requirements. Reporters who regularly cover local government meetings have probably encountered some or all of these misconceptions, some of which have become routine in certain quarters.
The PNA legal department has addressed some of the most common misconceptions with regard to the Sunshine Act, and there’s no better way to begin than to address the most common and insidious one of all. It’s the one we call, “It wasn’t a meeting, it was a (insert any other noun here).”
When an agency as defined in the Act (for example, a school board or a board of supervisors) has a prearranged gathering attended or participated in by a quorum of its members, the gathering is a meeting. You can call it a work session or a conference or getting together at the diner after the meeting, information gathering, or a fact-finding session, but it’s nonetheless a meeting in the eyes of the law. The gathering place is a matter of complete indifference under the Sunshine Act’s terms. A meeting can happen anywhere inside or outside a government building; what matters is whether a quorum of the agency is present. A quorum is the number of public officials necessary to take official action, typically one more than half the total number of public officials serving on the agency.
Meetings may or may not be open to the public. Whenever a meeting occurs for the purpose of deliberation or taking official action, it must be open to the public and all the formalities associated with a public meeting – notice, public participation, minute-taking, etc. – must be observed by the agency. Deliberation is broadly defined in the Act as discussion for the purpose of making a decision about agency business. Official action is also a defined term, and it encompasses a broad range of activity including making recommendations or decisions, creating policy and voting.
The Act also gives agencies the authority to hold “executive sessions,” which are meetings open only to agency members and, in some circumstances, other people whose presence is necessary to conduct the business of the meeting. Training programs arranged by State or Federal agencies for local agency members, called “conferences” in the Act, are also meetings that do not have to be open to the public.
Although the Act clearly defines the elements that combine to create a “meeting,” hotline calls reveal a widespread misconception that an agency may avoid the requirement of the Act by calling a gathering of its members something besides a meeting. Reporters who learn of an evening gathering at an agency member’s house are told that it wasn’t a meeting, it was a “pre-meeting planning session.” When members meet unannounced and in private with a contractor to discuss agency building or procurement plans, they defend their action by calling the event a “discussion session” that is outside the scope of the Sunshine Act. The definition of “meeting” is the most important element of the Sunshine Act. For that reason, it is too important to be misunderstood or dismissed with wordplay. Moreover, the definition is the foundation on which all other elements of the Act stand. If there is a quorum of an agency discussing agency business, it is a “meeting” for purposes of the Sunshine Act.