From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Our school board met behind closed doors with the superintendent to discuss the district’s busing policy. According to the board, the superintendent presented the board with information and responded to the board members’ questions, but the board members did not discuss the policy among themselves. They are claiming that the meeting could be closed because they did not “deliberate” agency business. Is this correct?

A: No. The issue here is whether the board engaged in “deliberations” regarding the busing policy. I believe that they did, and that they should have opened this meeting to the public.

The Sunshine Act defines “deliberation” as “[t]he discussion of agency business held for the purpose of making a decision.”

Under the Sunshine Act, any time a quorum of the board meets to deliberate agency business, it must do so at an open meeting unless an exception applies.

The most common exceptions are executive sessions. Under the Act, the board can meet in private, executive sessions to discuss certain, limited topics such as personnel matters or litigation.

Discussions about school policies such as a busing policy would not qualify under any of the executive session exceptions. As a result, any board deliberations about the busing policy should occur in public.

Here, the superintendent attended the executive session, gave board members information about the proposed busing policy, and responded to board members’ questions about the policy. Although we don’t know exactly what the board members asked or how the superintendent responded, the superintendent reported to the press that he thought the board reacted positively to the proposed policy.

In my view, the board here engaged in deliberations as that term is used in the Sunshine Act and should have opened this meeting to the public. To suggest that the Board did not engage in deliberations merely because they asked questions and did not engage in direct discussions with one another, relies upon a hyper-technical definition of “deliberation” and one that does not serve the school’s or the public’s interest. 

The Board met in private to review and gain an understanding of the proposed busing policy. They asked questions about the policy - which apparently disclosed some of their feelings about the policy -- and the superintendent responded to their questions and concerns. If the open meeting requirements of the Sunshine Act are to have any meaning at all, this kind of question and answer session must constitute deliberation.

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