During the global pandemic local governments are dealing with another problem: how to follow the laws around transparency and public participation housed in the Sunshine Act while their doors are closed to the public for their own safety.
The Sunshine Act
Under the Pennsylvania Sunshine Act, the legislature recognized that it is “the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies”, because that access is “vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.” All official “action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public” unless the decision is exempted under another part of the Sunshine Act.
The exceptions include “executive sessions”, “conferences”, and “working sessions”. Conferences refer to training sessions or seminars put on by the state to provide information to the agencies, but agency business cannot be conducted while at the conference. Working sessions refer to when an agency or committee is analyzing and deliberating over the various records and accounts that the agency may be tasked with. Again, the open meeting requirement applies if they are making any decisions regarding those accounts.
The “executive session” exemption is where most local bodies try to hide their actions. While the executive session exemptions are quite narrow, many agencies will call an executive session to discuss business they don’t want in the public eye. The exemptions include:
Discussing the employment of agency personnel
To hold information, strategy and negotiation sessions related to the negotiation or arbitration of a collective bargaining agreement or, in the absence of a collective bargaining unit, related to labor relations and arbitration
To consider the purchase or lease of real property
To consult with its attorney or other professional advisors regarding information or strategy in connection with litigation
To review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law
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.
As can be recognized, each of those exceptions is a legitimate time where an agency would need to make a decision, but which should not be held in a public forum to protect the public interest. However, that is the extent of the exemptions. Every other decision that a Township Board of Supervisors or Commissioners makes must be done in public. Doing so makes sure that there is public input in the decisions.
Holding Government Accountable
If a Township action is in violation of the Sunshine Act, “[t]he court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any or all official action taken at the meeting shall be invalid.” 65 Pa. C.S. 713 If the court finds that the Sunshine Act was not violated, the action will be deemed valid and in full effect. Id.
The Sunshine Act also carries penalties for violations, including monetary penalties for the individuals acting in violation of the Act. Interestingly, the statute requires that the individual themselves pay the penalty; the agency cannot pay it on their behalf. 65 Pa. C.S. 714. Attorney’s fees can also be awarded to the prevailing party. Luckily for citizen groups, they only need to pay if the court determines that the action was brought frivolously. 65 Pa. C.S. 714.1.
Your Next Step
If you think that your Township council is making decisions behind closed doors under the auspices of an “executive session”, act quickly to protect your rights. You have a right to know how and why your elected officials are making the decisions that they are. And you have the right to have your voice heard in regard to those decisions. Contact an attorney quickly to make sure that you don’t lose your rights.
