From the Hotline

By Legal Department
Pennsylvania Newspaper Association

Q: Our city council went into executive session to talk about a possible dispute with a local business. Can they do that?

A: It depends. The litigation exception permits agencies to meet in private with their attorney or other advisor to discuss ongoing litigation and certain potential litigation.

In order for the litigation exception to apply to discussions about potential litigation, the executive session must include an attorney or "other professional advisor," and the agency must have a legitimate expectation that a complaint will be filed. The mere threat or possibility of litigation is not sufficient. If that were the case, the exception would swallow the rule, and an agency could go into executive session and claim "litigation" every time it might get sued. Everything a government agency does has the potential to lead to litigation.

The Sunshine Act also requires an agency to announce the reason for holding an executive session. This announcement must be made at the public meeting just prior to the executive session or at the public meeting just following the executive session.

The Pennsylvania Commonwealth Court has made it clear that the Sunshine Act requires an agency to provide specific reasons for holding an executive session. The Court stated that "the reasons stated by the public agency must be specific, indicating a real, discrete matter that is best addressed in private." If this were not the case, the public would have no way to determine if it is properly being excluded from an executive session and no meaningful ability to challenge the exclusion.

Under the principles announced in Reading Eagle, when discussing active litigation, an agency must provide the names of the parties, the docket number of the case, and the court in which it was filed. With respect to threatened litigation, the agency must describe the general nature of the complaint. They probably don’t have to name names, but there should be a specific threat of litigation in order for this exception to apply.

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