From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Our county commissioners plan to hold regular meetings with local economic development agencies. Two of the commissioners will chair these meetings, and they are being promoted as 'informational' sessions relating to economic development issues. Are these meetings subject to the Sunshine Act, and should they be open to the public?

A: In our opinion, these meetings are subject to the Sunshine Act and should be open to the public, as they will involve agency "deliberation" as that term is defined in the Sunshine Act. (click here to view text of Sunshine Act)

Any time a quorum of an agency meets to deliberate agency business or take official action, the meeting must be open to the public unless a specific exception applies under the Act. The mere fact that an agency does not take action at a meeting, does not permit it to be closed to the public.

Although, under certain circumstances, an agency can meet in executive session, I am not aware of any executive session exception that would permit these meetings to be closed.

"Deliberation" is defined as "[t]he discussion of agency business held for the purpose of making a decision." 

Although some try to argue that agencies can meet to "gather" information, as long as they are not making any decisions, we disagree. In our view, the Sunshine Act does not permit a quorum of a public agency to meet privately with individuals or groups for "information gathering." Not only do we disagree with this narrow interpretation of the Sunshine Act, we believe that it is a dangerous one from the public's perspective.

From a purely practical perspective, I don't know how an agency can take the position that these discussions are not initiated for the purpose of making some decisions about the future of the municipality. Why else would you hold such a meeting -- except to learn how things can be improved, with the hope that some time in the future, you can take the steps to make the necessary improvements?

The problem with interpreting the Act to permit these "information gathering" sessions, is that it would permit an agency to meet in private any time it wanted to discuss an issue, as long as it took the position that it did not (currently) intend to reach a decision on the issue. Not only would this "gut" the Sunshine Act, the Act was amended in 1987, in part, to deal with this type of issue. Prior to 1987, court decisions in Pennsylvania interpreted the Sunshine Act to require only the voting process to be open to the public. Deliberations leading up to the votes could occur in private. In 1987, however, the Sunshine Act was amended to require that deliberations occur in public as well. The Act, as amended, states that "The General Assembly hereby declares it to be the public policy of the Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon...."

The Department of Community and Economic Development has elaborated further on the issue of "informational" sessions in its publication on the Sunshine Act/Open Records Law. In a section on "Conferences", the DCED writes that:

[w]hile the Sunshine Law clearly requires that deliberations leading up to decisions take place at public meetings, an attempt is sometimes made to distinguish between deliberations leading to official action and discussion sessions or briefings on municipal issues or concerns. For example, a municipal manager might in private brief members of the governing body about a drainage problem in the community. Some solicitors have held that such a briefing can be considered a conference and not violate the Sunshine Act. There is little support for this position in the Act itself....

Municipal officials certainly have a duty to be informed about problems in their community before they reach the point of actual official action. However, it is dangerous to try to justify briefing sessions or information gathering sessions as conferences and conduct them in closed meetings. Most of these issues will eventually resolve into official action of some sort. The concept of a meeting where members are simply informed and do not discuss issues ignores the basics of group dynamics. Members are all too likely to ask questions, pose possible responses by the municipal government and debate various courses of action. The court decisions cited above do not provide any support to the theory that so called "informational sessions" are anywhere authorized as closed meetings by the Sunshine Law.

In our opinion, it is inconsistent with the Sunshine Act and detrimental to a public agency's relationship with its community when an agency conducts "informational sessions" in an attempt to avoid a strict application of the Sunshine Act. Clearly, the issues being discussed are issues that are appropriately discussed in public and are issues in which the public has a significant stake. The Sunshine Act declares that "the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society." 

While we appreciate that agencies may be attempting to provide a "safe" environment for certain citizens to offer information and ideas to the agency, in our opinion, the Sunshine Act prohibits them from doing so in this manner.

There is a 2000 Commonwealth Court decision, Belitskus v. Hamlin Township, which many solicitors point to as supporting the argument that municipal officers can, under some circumstances, lawfully meet with outside groups behind closed doors. There, township supervisors set up and attended a private meeting which included a water association and a redevelopment authority. The complaint, brought by a private citizen (without a lawyer), alleged that the township supervisors violated the law because setting up and attending this meeting constituted "official action." The Court disagreed, finding that the meeting involved the business of the water association (not the township) and that the supervisors' conduct did not constitute "official action." The Court did not discuss (presumably because the complaint did not raise the issue) whether the commissioners "deliberated" at the meeting. In our opinion, Belitskus is very fact-specific. We do not believe that it does, or could, authorize an agency to hold "informational" meetings with groups to discuss agency business.