From the Legal Hotline

By Teri Henning, General Counsel; Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: The County Commissioners have enacted a policy in which they advertise themselves as “in session Monday- Friday, 8:30a.m. - 5:00 p.m. unless in other meetings.” They say this policy is needed because the “Sunshine Act is poorly designed to serve commissioners who share office space and frequently discuss agency business during the day.” The commissioners said this policy will keep them in compliance with the Sunshine Act because they will always be conducting an advertised meeting. Can they do this?

A: No. Anytime a quorum of an agency discusses agency business, it must be done at a properly advertised, open meeting where minutes are taken and public comment is permitted. This policy is in direct conflict with both the letter and intent of the Sunshine Act.

The advertising requirements of the Sunshine Act were designed to give the public specific notice of when and where agency deliberations and decisions take place because the public has the right to witness and comment. If the discussions and decisions can take place anytime during regular business hours, there is no specific notice and hence, no compliance with the Sunshine Act. Furthermore, advertising is not the only requirement of the Sunshine Act and this policy ignores several important aspects. For instance, meeting minutes are required to be taken at all public meetings; will the commissioners hire a full time stenographer to take notes all day, every day? Furthermore, the public is entitled to make comment on all matters that are or may be before the commissioners; can members of the public come to the commissioners’ office at any time to listen and give public comment (which also must be recorded in the minutes)? Simply put, this policy is poorly conceived; it ignores the intent of the Sunshine Law and the concept of open government in general.

Supervisors who share office space can run into Sunshine Act problems but the solution is not to ignore or try to creatively get around the law. The Sunshine Act guarantees the public’s right to witness and participate in their government; elected officials must protect this right and fully understand the law. For instance, some discussions may be appropriate outside a public meeting. “Administrative action” is not required to be conducted at a public meeting. “Administrative action” is the execution of policies previously adopted or authorized at a public meeting; however, this does not include deliberation of agency business. This concept would allow commissioner to discuss policies and contracts that have already been discussed and enacted at a public meeting.

The Sunshine Act is designed to keep government open, accessible and accountable to the public. The public has a right to witness and participate and that requires specific notice. The policy discussed above does not enable public participation and conflicts with the Sunshine Act.

PNA Legal Hotline: (717) 703-3080

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