By Teri Henning 
Pennsylvania Newspaper Association
 

Q:  When can an agency go into executive session? 

A:  The Sunshine Act permits an agency to go into executive session for six types of discussions:  1) personnel matters (when the agency is discussing specific employees or appointees); 2) pending litigation or matters where the agency expects that a complaint will be filed; 3) the purchase or lease of real estate (until an agreement is reached); 4) matters that are confidential by law; 5) collective bargaining; and 6) academic standings or admissions.

Q:  If an agency thinks that it could “potentially” get sued based on an action that it is considering, can it go into executive session and claim the “litigation exception?”

A:  No.  The litigation exception only applies when an agency meets with its attorney or other professional advisor to discuss:  1) pending litigation; or 2) issues on which identifiable complaints are expected to be filed.  With respect to threatened litigation, an agency must have some legitimate expectation that a complaint will be filed before it can go into executive session.  The mere “potential” for litigation (without more) is not and cannot be sufficient. Otherwise, the exception would swallow the rule, as everything a public agency does could potentially lead to litigation.

Q:  What kind of public notice must be provided with respect to an executive session?

A:  Advance public notice is not necessarily required.  An agency is required to announce the reason for holding an executive session either: 1) at the public meeting immediately prior to the executive session; or 2) at the public meeting immediately following the executive session. 

Q:  How much information must the agency provide to the public about the reason for an executive session?

A:  The Pennsylvania Commonwealth Court has held that a public agency must provide a specific reason for holding an executive session.

It is not acceptable for an agency to say only that it discussed “personnel issues” or “litigation.”  With respect to pending litigation, the agency must provide the names of the parties, the docket number, and the court where the case is filed.  With respect to threatened litigation, the agency must at least provide a general description of the subject matter of the case.  The agency is not required to provide the names of the potential parties.

With respect to a personnel issue, the agency should at least make it clear that it is discussing one or more individuals (and not personnel policies in general).  The agency does not have to provide the actual name(s) of the person or persons being discussed.

Q:  If a board (or other agency whose members are elected) has a vacancy, can it meet with potential replacement candidates in executive session?

A:  No.  The personnel exception does not apply to “any meeting involving the appointment or selection of any person to fill a vacancy in any elected office.”  As a result, if a board has a vacancy, all discussions about how to fill that vacancy must occur in public.  This includes discussions about the selection process, discussions about the potential candidates, and meetings with the potential candidates (to the extent that they are conducted by a quorum of the board). 

Q:  Can a public agency limit public comment to residents or taxpayers?

A:  Probably.  The Sunshine Act requires public agencies to allow taxpayers or residents or both to speak at public meetings. The PNA discourages the adoption of any policy limiting who can speak at a public meeting, because such a policy would be impractical to enforce and is likely to raise issues regarding “discriminatory” enforcement.

Q:  Is a committee of an agency (such as a school board hiring committee) a public “agency” subject to the Sunshine Act?

A:  Most committees are public agencies subject to the Act’s requirements.  Under the Sunshine Act, an “agency” includes a committee of a public agency that is “authorized to take official action or render advice” to the public agency.  If a quorum of a committee (this does not have to be a quorum of the entire board) meets to take official action or deliberate agency business, the meeting must be open, unless a specific exception under the Sunshine Act permits it to be closed.

Q:  Can I record meetings?  Does recording violate the federal or state wiretapping laws?

A:  You can record public meetings.  Pennsylvania’s Sunshine Act expressly states that those attending public meetings have the right to record the proceedings. State and federal wiretap statutes prohibit the recording of an individual’s oral communications when the person being recorded has a reasonable expectation of privacy (sometimes described as a reasonable expectation that one is not being recorded).  Since these meetings are open to the public, and recording is expressly permitted under the Act, anyone speaking at a meeting cannot have a reasonable expectation of privacy.  As a result, recording the meetings does not violate state or federal wiretapping laws.