Newspapers lose appeal, Dickinson Law officials to meet in private

By Teri Henning
Pennsylvania Newspaper Association

In a disappointing 3-2 decision dated April 23, 2004, the Pennsylvania Commonwealth Court ruled that the Board of Governors of the Dickinson Law School is not an “agency” subject to Pennsylvania’s Sunshine Act and can continue to refuse public access to its meetings. 

The court ruled that because the Board of Governors is not a “committee” of Penn State’s Board of Trustees, it is not an “agency” as that term is defined in the Act.

The definition of “agency” under the Sunshine Act includes 

The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following…any…school governing body, commission, the boards of trustees of all State-aided colleges and universities, the councils of trustees of all State-owned colleges and universities, the boards of trustees of all State-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and …exercises governmental authority and takes official action.

Although this definition seems to make it clear that all of the entities that govern public schools and universities are agencies subject to the Act (i.e., school governing bodies, boards of trustees, and committees of the same), the court ruled that the Board of Governors was not a “committee” and therefore not an agency. 

There is no dispute that the Board of Trustees of Penn State is an agency under the Act. In deciding that the Board of Governors was not a “committee” of Penn State’s board, the court considered the definition of “committee” in Pennsylvania’s Nonprofit Corporation Law, Penn State’s corporate bylaws relating to the creation of board committees, and Merriam-Webster’s definition of “committee.” The court found that the Board of Governors was too independent of Penn State to be a “committee of” Penn State’s Board of Trustees. It emphasized that the Board of Governors “has a separate legal entity, and has the authority to sue [Penn State]…” (Incidentally, neither the lower court nor the Commonwealth Court dissenters found this fact compelling – noting that the right of an employee to sue an employer does not make the employee any less of an employee “of” the employer.)

By way of background, in1997, the Dickinson School of Law merged with Pennsylvania State University. As a result of the merger, Dickinson “ceased to exist as a separate entity” and became a part of Penn State. A merger agreement between Dickinson and Penn State defined the ongoing relationship between the two. Among other things, the merger agreement made it clear that the Board of Governors, an entity formed as a result of the merger, had to approve any change in the law school name or location.

The current dispute arose in November of last year, when The (Carlisle) Sentinel learned that the Board of Governors was considering whether to move the location of the law school from Carlisle to State College. The board planned to hold private meetings to discuss the issue.

Both The Sentinel and The (Harrisburg) Patriot-News challenged the closed meetings, based on the Sunshine Act. Although the newspapers were initially unsuccessful before the Commonwealth Court, they pursued the issue in the Cumberland County Court of Common Pleas, and in February, the Common Pleas Court ruled that the Board of Governors was a committee of Penn State and was therefore, an agency subject to the Sunshine Act. The board appealed, and in its April 23 ruling, the Commonwealth Court overturned the lower court.

The two dissenting Judges argued that the Board of Governors is an agency subject to the Sunshine Act, emphasizing the powers and authority of the Board of Governors. Specifically, they discussed the fact that the Board of Governors makes recommendations (some binding) and renders advice to the Penn State Board, and that the Board of Governors ultimately controls the name and location of the law school. The dissenters also cited a prior Commonwealth Court case, Patriot-News Co. v. Empowerment Team of Harrisburg, in which the Court held that empowerment teams created by two local school districts to create school improvement plans were agencies under the Sunshine Act. The empowerment teams were held to be “temporary committees” of the school districts or “de facto” school boards. Similarly, the dissenters argued, the Board of Governors is a “committee” of Penn State’s Board of Trustees.

The full impact of the Board of Governors’ decision is difficult to predict. Although the factual circumstances are specific to Penn State and Dickinson, the case is likely to affect future rulings on whether a particular entity is a “committee” of a governing body. Obviously, the concern is that agencies will read this decision to authorize or even encourage public agencies to “create” nonprofit corporations in an attempt to avoid the requirements of the Sunshine Act. It goes without saying that this has the potential to significantly interfere with the public’s right to know what agencies are doing and how they are using public funds.

The newspapers intend to pursue an appeal to the Pennsylvania Supreme Court. The PNA also intends to pursue this matter with state legislators who have, in the past, strongly supported the public’s right to witness agency deliberations and hold agencies accountable for their use of public funds.