CLEARFIELD – Every year, the Pennsylvania Newspaper Association receives about 2,000 telephone calls on the legal hotline. Of those, one quarter of them are questions about Pennsylvania’s Open Meetings Act, better known as the Sunshine Act.
A representative of the PNA traveled to Clearfield Thursday night to speak to about 50 people who attended an event organized by GantDaily.com, The Courier-Express/Tri-County Sunday and wOK!w 102.9 FM.
Teri Henning, general counsel for PNA, began the night by describing the basic reason the Sunshine Act was formed. She said that any time a quorum of a public agency deliberates or takes action, the public must be notified except when a few exceptions such as an executive session, conferences or training events or administrative action apply.
Henning outlined the top 10 questions people have about the Sunshine Act before taking questions from the audience.
Henning said that committees that are authorized to take action or give advice on behalf of a board are required to follow the Sunshine Act, and whenever these committees meet, they must do so at a public meeting unless the meeting is subject to the executive session exemption.
Public Notice/Announcements Related to Executive Sessions
An agency is required to give the reason for an executive session. This, Henning said, can be done either at the meeting immediately before or immediately after the executive session.
Henning noted that saying personnel or litigation is not enough under the act.
She said the body must give the public enough information so that people can decide whether the executive session is proper.
If the matter is for personnel, the entity should say the matter deals with one specific employee, although naming the person is not required. Discussing policies is not permitted in executive session.
In addition, Henning said that the subject of an executive session for personnel has the right to request, in writing, that the meeting be open to the public.
If the matter is for litigation, it can be for actual or threatened litigation.
Either way, Henning said the the public should be given enough information to decide whether the discussion should occur in the open or in private. If a lawsuit has been filed, the entity should provide the docket number, the court and the parties involved so that anyone interested can view the file. If the matter is threatened, Henning said a brief description of the subject matter should be given, for example: a personal injury complaint or a an age discrimination lawsuit.
“That doesn’t disclose anything you’re not ready to disclose, but it gives the public enough information,” she said.
Members of boards are permitted to send e-mails to one another under the Sunshine Act, but Henning noted that the matter of e-mails and the Sunshine Act has yet to be litigated in Pennsylvania.
“It is possible, in today’s technology, that a quorum could be sitting at their computers deliberating.”
Henning said a quorum could meet in “real-time” discussions via e-mail or a violation could occur in “daisy-chain” e-mails in which pieces of a discussion are separated by large amounts of time.
Filling Board Vacancies
Normally when a board fills a vacancy for a secretary, road crew member or police officer, the board has the right to do interview candidates and discuss them behind closed doors. The decision to fill the post, though, must be done at a public meeting.
The difference, Henning said, with board vacancies for elected offices is that interviews and deliberations should be done in the public.
“You’re taking the place of the voter,” she said.
Henning said that the Sunshine Act was changed in 1996 to reflect the fact that the personnel exception does not apply to those being appointed to an elected office.
According to the Sunshine Act, taxpayers and residents are required to have ample time to speak on issues to be deliberated or voted on at the meeting or issues that may be before the board at the meeting.
Henning said that while a board is not required to have a written agenda, not having one could be a problem because the public does not know which issues will be discussed at the meeting.
“For me it’s a thing of reasonableness,” Henning said. “In my opinion, boards that don’t use an agenda have an extra responsibility.”
Many boards, Henning noted, have one public comment period at the beginning of the meeting for anything on the agenda and another at the end for anything not on the agenda.
Through the years, Henning said informational sessions have taken on many names such a pre-meetings or work sessions.
“It doesn’t matter what you call it. What matters is what you do at it.”
Henning said that unless an exception applies under the act, these types of meetings must be open.
She said she has heard the argument that if a decision is not coming in the near future, then the meeting need not be open. That argument, she said, is not a valid one.
“The decision doesn’t have to be imminent,” she said.
Henning also said that meetings do not have to be prearranged to have the potential to violate the Sunshine Act.
“People get hung up on the definition of a meeting,” she said. “Even if it’s not prearranged, it could be a meeting.”
She said the simple test is whether official action or deliberations take place between a quorum of the members of a board.
The Personnel Exception
The Sunshine Act states that the personnel exception under the Sunshine Act only applies to specific employees or appointees of the agency. Independent contractors are not covered under this exception, Henning said.
Discussions regarding policies for employment or personnel cannot be discussed in executive session, Henning said, and when an employee is discussed, he or she has the right to make a written request that the meeting be open.
The Litigation Exception
Members of a board can meet in an executive session for litigation for active or identifiable complaints that are expected to be filed.
However, Henning said, the board must meet with their solicitor or other professional adviser.
The Real Estate Exception
Boards can discuss the purchase or lease of property in an executive session. Henning noted, however, that the discussion of sale of property must be done in public.
She pointed to a case involving the Lancaster County Commissioners in which they discussed the sale of the county nursing home behind closed doors. In that case, a plea was entered, and the commissioners were fined.
Elected officials and appointed board members can attend training programs and seminars without violating the Sunshine Act, Henning said.
They can also perform the duties in their every day through the administrative action exception.
“This is the part of the law that lets you do your jobs,” Henning said.
She said officials can carry out the actions that were decided upon at an open meeting, however, the officials cannot conduct deliberations.
Henning said after presenting her top 10 that one of the biggest problems with the law is that in a lot of cases, the remedy for violating the Sunshine Act is to “cure” the violation.
“That’s basically by having a do-over,” she said.
Henning said that if a cure is allowed, the board need only have an opportunity for public comment and then a vote.
If the action cannot or is not cured, she said, the fine for violating the Sunshine Act is $100, although state Sen. Gibson Armstrong (R-Lancaster) is looking to change that through increasing fines.
Henning then took comments from the officials and private citizens who attended the session.
Paula Norris of Boggs Township was one of several who asked a question. She wanted to know about how three township supervisors who work together day in and day out can do so without violating the act.
“County commissioners have this all across the state and supervisors as well,” Henning said.
“It’s a difficult situation. The reason for it is when two people are together, they have the ability to impact their entire community.”
Henning said that their duties would fall under the administrative action exemption, but she noted that there is the possibility for violations of the act to occur, intentional or not.
Jeff Corcino of The Progress asked whether private corporations connected to public agencies are required to have open meetings. Henning responded that the issue is a complicated one, and the specifics of the matter would have to be considered before she could weigh in on the matter.
Susan Reed, Clearfield Borough Council member, said that while large municipalities do not have a problem disclosing when they talk about their road crew in executive session because the department is large, smaller municipalities with one or two employees might feel as though they would say too much if they were to go into executive session to discuss a member of the road crew.
Henning said that is a problem in small municipalities, and they would be able to simply say that they were discussing a township employee.
Wendy Lynn of The Progress said that she often attends meetings where executive sessions are long. She wanted to know if the act provided for a time limit on the sessions.
Henning responded that there was not a limit but boards usually tell members of the public if they will reconveine as a courtesy.
However, Henning did note, “It’s certainly contrary to the intent of the act.”
So what should someone do if they think the Sunshine Act has been violated?
Henning said the first step is to approach the board that allegedly made the violation. This can be done by asking the solicitor for the board or the president of the board. Henning said sometimes reporters even object to the violation during the meeting. If this step does not work, she said it must go to the legal system.
Overall, Henning said Pennsylvania’s Sunshine Act is “middle of the road” when it comes to those in other states.
She said that the state’s open records law, though, is one of the worst in the country and provided everyone in attendance with a brochure from the PNA’s Brighter Pennsylvania initiative.
For more information on this effort, which could have the potential to affect issues under the Sunshine Act, visit the PNA Web site.
Some interest was expressed in inviting Henning back to discuss open records on a future date. If you are interested in this, send GantDaily an e-mail to firstname.lastname@example.org, and we’ll keep you posted as to whether such an event is planned.