From the Hotline

By Teri Henning, General Counsel
Pennsylvania Newspaper Association

Q: If agency members engage in serial phone calls or serial one-on-one conversations, are they violating the Sunshine Act?

A: Maybe. The basic rule of the Sunshine Act is that any time a quorum of an agency deliberates agency business or takes official action, it must do so at an advertised, open meeting, unless an exception applies. There are no Pennsylvania cases that directly deal with the use of serial meetings or communications to discuss or reach consensus on an issue, but other states that have considered the issue have found violations of the open meetings laws when agency members participate in this type of behavior in an effort to avoid the requirements of those laws.

At some point, these types of conversations begin to resemble deliberations, which must be held in public (unless an exception applies). It is certainly possible to engage in "deliberations" without actually being in the same room at the same time. This could occur by real-time e-mail discussions, or even through the use of serial phone calls or small-group meetings.

It is also possible to reach a "decision" on a matter via phone polls or serial discussions. The Sunshine Act is clear that all official action must occur at an open meeting. As a result, if an agency takes "official action" by way of a phone poll or similar communication, it has violated the Sunshine Act. Courts have described "official action" as conduct that commits the agency to a course of action.

Apart from the legal issues, using multiple, small-group or one-on-one discussions to discuss or reach consensus on issues also does a great disservice to the community. The stated purpose of the Sunshine Act is to ensure the right of Pennsylvania citizens to have notice of and to witness the deliberation, policy formation and decisionmaking of public agencies. Accordingly, the Sunshine Act guarantees the public's right to see not only an agency's final decision on a matter, but also (with limited exceptions) to view the discussions leading up to those decisions.

Please contact your newspaper's lawyer or call the Legal Hotline at (717) 703-3076 if you would like to discuss a specific set of circumstances.

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