From the Legal Hotline

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

Q: The county commissioners have sent termination letters informing several county employees their jobs will be eliminated or they will be terminated. Nothing was mentioned at the last public meeting and the commissioners deny having held an executive session. Can they do this?

A: No. The termination letters illustrate the fact that official action and deliberations of agency business may have taken place outside a public meeting.

The Sunshine Act requires all official action to take place at a public meeting and anytime a quorum discusses agency business, it must do so at an open meeting unless an exception applies. There is an exception that allows agencies to discuss personnel issues privately, but the agency is required to publicly announce the reasons for holding such an executive session.

The decision to terminate an employee or eliminate a job position is official action and can only occur at a public meeting. The termination letters provide evidence that a decision has been made outside a public meeting. This raises serious Sunshine Act issues. The Sunshine Act guarantees the public the right to comment on all matters of agency business prior to official action. This process allows the public to have a voice and take an active role in government. The termination letters provide evidence that the commissioners have made their decision regardless of public input and in spite of the Sunshine Act.

Furthermore, the termination letters provide evidence that deliberations of agency business occurred outside a public meeting. Private discussions of agency business are only appropriate in limited circumstances – to discuss specific personnel, litigation, purchase or lease of real estate, collective bargaining or to discuss material that is protected by statute or lawful privilege. Moreover, if the commissioners discussed specific personnel during an executive session, the Sunshine Act requires the agency to publicly announce the reasons for holding the executive session prior to the executive session or at the very next public meeting. The Courts have held that a one-word reason, such as executive session for “personnel” is not sufficient. The agency must give the public enough information to evaluate whether the executive session was appropriate.

PNA Legal Hotline: (717) 703-3080

Use this link to the Headlines & Deadlines archive of weekly 'From the Hotline' columns. 

[HOTLINE ARCHIVE]