Misconceptions about the Sunshine Act abound, Part 1

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1 Misconceptions about the Sunshine Act abound, Part 1 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 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

2 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. Misconceptions about the Sunshine Act abound, Part 2 The Sunshine Act generally requires agencies to hold meetings open to the public whenever they take official action and conduct deliberations. However, the open meeting requirement is subject to some exceptions. Conferences - training programs or seminars designed solely to inform agency members about their official responsibilities - may be closed to the public. Caucus and ethics committee meetings of the state House and Senate may also be closed to the public. A board of auditors does not have to open its working sessions to the public as long as the board's official action with respect to the records being audited is taken at an open meeting. The exception that generates the most litigation and frustrates more reporters and citizens than all other exceptions combined is the executive session exception. The Act defines an executive session as "[a] meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting." Based on PNA legal hotline calls, the greatest misconception about the executive session is that it can be invoked whenever agency members believe it would be in their best interest to resolve a matter in private. After watching some agencies at work, one could be forgiven for assuming that executive sessions are the meeting norm and open meetings are, in fact, the exception to that norm. Fortunately, the Sunshine Act clearly establishes that the legitimate purposes of an executive session are fairly limited. First and most importantly, official action on matters discussed at an executive session must always take place at an open meeting. In other words, an executive session at which agency members take a vote, establish policy, decide agency business or make official recommendations is an unlawful meeting. Given the incidence of hotline calls regarding decisions made during executive sessions, it seems that many officials are unaware of this limitation as well as the statutory admonition that an executive session shall not be used "as a subterfuge to defeat the purposes of [the open meeting requirement]." The other important limitation is that an executive session may be held only for the reasons stated in the Act. The Act does not give agency members the discretion to hold a meeting behind closed doors because they, the members, have some reason of their own for believing a private meeting would be best.

3 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 staterelated 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. 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

4 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. 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.

5 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. Misconceptions about Sunshine Act abound, Part 5 Executive sessions are the most common exceptions to the Act's requirement that agency meetings involving official action or deliberation be open to the public. We continue to examine executive sessions, with a focus on some of the issues less commonly encountered

6 by journalists. Their experience is reflected in the body of judicial opinions that interpret the Act, among which there is little reference to these reasons for a private agency meeting. The Act allows an agency to "consider" the purchase or lease of real property in executive session. Real property is land or things erected or affixed to land, as opposed to personal property, the broad category of other things that are subject to legal ownership. Although the term "consider" is not defined in the Act, it's reasonable to assume the legislature intended it to mean, "discuss." Elsewhere in the executive session provision of the Act, the legislature expressly allows "negotiation sessions" (with respect to labor agreements). It does not give agencies similar latitude with respect to the purchase or lease of real property. The legislature apparently chose not to permit agency members meeting as a body to negotiate privately the acquisition of real property. This conclusion is reinforced by the fact that the "real property exception" does not contemplate the participation of non-members in the executive session. The "litigation exception," expressly permits consultation between the agency members and their lawyer or other experts during an executive session. The "real property exception" does not authorize persons other than agency members to participate in the executive session. The Act limits the time period during which an agency may meet in private to consider real property acquisition. It states that such consideration may occur "up to the time an option to purchase or lease the real property is obtained or up to the time an agreement to purchase or lease such property is obtained [if no option is involved]." An option is simply an agreement that gives a person the right to buy a property, if he wishes, at a fixed price within a specified time period. The apparent purpose of the real property exception is to allow agency members to discuss the purchase of property prospectively without alerting the owner or possible competitors who would otherwise gain a negotiating advantage. If an agency has already purchased a property (or the right to buy it), the rationale for private discussion no longer exists. Confidentiality of another sort is the rationale for the next type of executive session. The Act allows an agency to "review and discuss" agency business that, if discussed in public, would violate "a lawful privilege or lead to the disclosure of information or confidentiality protected by law." The Act includes within the scope of this open meeting exception "matters related to the initiation and conduct of investigations [of law violations]" and "quasi-judicial deliberations." The purpose of this exception is to allow agency members to discuss information made confidential by law that is pertinent to the agency's business. Pennsylvania and Federal laws make a wide variety of information confidential, including income tax returns, medical records, and public assistance grants. If discussion or quasi-judicial deliberation of such information is required, an agency may hold an executive session for that purpose. "Quasijudicial deliberations" refers to the consideration of evidentiary facts and legal principles in preparation for the issuance of a ruling regarding someone's rights or liabilities. For example, an agency would engage in such a process after a hearing in order to decide whether to issue or revoke a license or grant or deny a zoning variance. In order to hold an executive session pursuant to this exception, the agency must have a need to discuss information recognized as confidential, such as its referral of a possible criminal offense to an investigative agency or the medical records of an employee. Many

7 times, such information does not routinely come under the scrutiny of local government, or, if it does, it is dealt with at the administrative level or as part of an executive session called for a different although related - reason. The final reason for an executive session is really self-explanatory. The Act states that "duly constituted committees" of the governing bodies of state-owned, state-related and stateaided institutions of higher education may meet in executive session to discuss matters of academic admission or standing. Since a student's academic performance is generally regarded as a private matter under current law, it is not surprising that the legislature would allow a college admissions or academic standing committee to discuss such a matter in private.