From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

Q: Can an agency go into executive session to discuss potential litigation?

A: Maybe. Under the litigation exception of the Sunshine Act, an agency can meet in private with its attorney or other professional advisor to discuss: 1) active litigation, or 2) issues on which identifiable complaints are expected to be filed. 

In order for the litigation exception to apply to discussions about potential litigation: 1) there must be an identifiable complaint (the agency must know who is complaining and what they are complaining about); and 2) the agency must have a legitimate expectation that the complaint will be filed. The mere threat or possibility of litigation is not sufficient. If that were the case, the exception would swallow the rule, and an agency could go into executive session and claim "litigation" every time it might get sued. 

Everything a government agency does has the potential to lead to litigation. The mere "possibility" of litigation is not and cannot be sufficient to satisfy the requirements of the statute. 

If the agency has actually been threatened with a lawsuit, or if the agency is taking steps to file its own complaint, then it could discuss the matter with its attorney in executive session. If, however, the agency is simply discussing a controversial issue (with no current expectation that a complaint is going to be filed), then the litigation exception would not apply and its discussions should occur in public.