THE SUNSHINE ACT
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Copyright © 1988, 1989, 1990 by Gregg R.
Zegarelli. All rights reserved.
The Pennsylvania General Assembly passed Act No.
1986-84, known as the "Sunshine Act," to replace the former "Open Meeting
Law." The Sunshine Act became effective on January 3, 1987. Following is a summary of
"Democracy" -- the concept upon which our
American society is based. It is the concept that the people exercise self-government by
choosing public officials who will represent the people's concerns in the legislative
If the people are to make an informed choice on election
day, then they must be able to evaluate whether, in fact, they have been adequately
represented. Thus, the public's ability to witness and evaluate their public officials is
the very essence of democracy.
Recognizing the importance of open government in the
democratic process, the Pennsylvania General Assembly recently stated that:
[T]he right of the public to witness the
deliberation . . . of agencies is vital to the . . . proper functioning of the democratic
process and . . . secrecy in public affairs undermines the [public] faith . . ..
Accordingly, in 1986 the General Assembly repealed the 12
year old Open Meeting Law in favor of the Sunshine Act. The prior Open Meeting Law
required only that "formal action" be taken at open meetings. "Formal
action" did not include acts of deliberation, discussions and policy formulation --
all of which are now covered by the Sunshine Act.
At the core of the Sunshine Act are two (2) separate and
distinct rules with which agencies must comply: 1) the Open Meeting Rule; and 2) the
Public Notice Rule.
1. Open Meeting Rule
The Sunshine Act provides that "[o]fficial action
and deliberations by a quorum of the members of an agency shall take
place at a meeting open to the public unless closed [by an exception]."
The Sunshine Act provides that an "agency" is any
"body, and all committees thereof authorized by the body to take official action or
render advice," which exercises governmental authority and performs essential
governmental functions. Included in the definition are authorities, commissions, councils,
and school boards.
"Official actions" include recommendations, the
establishment of policy, any decisions on agency business, and all voting.
A "deliberation" is a "discussion of
business held for the purpose of making a decision." Agency business
includes the framing, preparation or enactment of laws, the creation of liability, or the
adjudication of rights. Agency business does not include the execution of policies which
were previously authorized by the agency at an open meeting.
As a fundamental consideration, the Open Meeting Rule is
defined in terms of a "discussion" held for the purpose of making a decision. It
is not defined in terms of a "meeting" held for the purpose of making a
decision. Thus, even if a quorum of agency members "meet" for a purpose totally
unrelated to agency business, the meeting must be made open to the public at the moment a
"discussion" begins for the purpose of making a decision.
It may be argued that a "discussion" of agency
business was not held "for the purpose" of making a decision. However, this
argument should fail because any relevant discussion of agency business is probably more
than frivolous talk -- and anything more than frivolous talk probably has as its purpose
the end decision.
The Open Meeting Rule requires only that
"deliberations" and "official action" occur at open meetings --
nothing more. For example, it does not grant the public a right to speak at open meetings.
Thus, unless an agency's charter requires otherwise, all voting could legally take place
at informal public "workshop sessions."
When agencies create committees, they should pay
particularly close attention to the Open Meeting Rule. For example, assume that a 7-member
council requires background research and advice on a particular project. As many as three
council members could meet, research and discuss the project without regard to the Open
Meeting Rule -- since three members would not constitute a quorum of the committee.
However, if the council authorizes an advisory committee to do the background research and
provide advice, then the Open Meeting Rule may apply. Briefly stated, the committee itself
may fall within the definition of "agency"; and thus, the committee may become
an "agency" so that the Open Meeting Rule would apply to it without regard to
the authorizing council. Of course, because a committee can itself be an agency, any
committee created by it (i.e. subcommittees) may also become an agency.
Whether a committee becomes an "agency"
in-and-of-itself is based upon a three (3) part test:
1. The committee must be "of an agency";
2. it must be authorized; and
3. its purpose must be to render advice or to take formal
The first part of the test may be interpreted in one of two
ways. "Of an agency" means either a committee: 1) "authorized by an
agency"; or 2) "of the membership of the authorizing agency." The more
obvious interpretation would be that the Open Meeting Rule applies to committees which are
merely authorized by an agency, regardless of committee membership. This broader
interpretation would be consistent with the intent of the Act, because the purpose of
committees is often to focus the discussion of business matters. Furthermore, there
would be potential for abuse if an agency could authorize a committee to perform functions
that would otherwise fall within the scope of the Act.
The second part of the test requires that the committee be
authorized. Recently, it has been held that pursuant to the new Sunshine Act, defacto
committees are not within the definition of agencies. Thus, even though committees may
otherwise fall within the Open Meeting Rule, agencies may be able to allow their
committees to evade the Rule by withholding committee authorization. Generally, this does
not create an issue because a meeting of less than a quorum of agency members is not
within the scope of the Act. However, in some instances, a group of less than a quorum of
agency members have the influence and recognition of the agency, but because the group was
not formally authorized, it may conduct its meetings without public scrutiny.
The third part of the test establishes two (2) types of
committees which come within the Open Meeting Rule, those to: 1) take formal action; or 2)
render advice. Because there are few reasons to establish a committee if not to take
formal action or render advice, this part of the test usually should be satisfied.
However, committees authorized solely to conduct research and compile the results, without
more, is probably not within the scope of the Act.
The prior Open Meeting Law, which was silent on the issue
of advisory committees, was held only to apply to committees that were to make
"binding" recommendations which would affect the substantive rights of any
person. The new law is explicit that advisory committees are within its scope.
Assume, for example, that a council authorizes a committee
merely to research a project. The committee researches and discusses the project in
closed session and then returns to council with the research results, and, exceeding its
authority, also renders advice for action. Subsequently, the council takes formal
action based upon the committee's advice. Because the committee was not authorized to
render advice or to take formal action, it could legally conduct its meetings in closed
sessions. Furthermore, to the degree that the committee rendered advice, it was to that
degree a defacto advisory committee. Because neither research nor defacto committees are
within the scope of the Sunshine Act, the public's interest to witness committee
deliberations could easily be evaded. In this situation, courts should enforce the spirit
of the Sunshine Act by drawing a distinction between wholly defacto committees and
committees which exceed their authority. In the case of a committee exceeding its
authority, a court has no alternative but to make a subjective evaluation of the
"totality of the circumstances" to determine whether the Act was violated.
Although not technically part of the Open Meeting Rule, the
Sunshine Act also grants the public a right to use recording devices at open meetings,
except that the agency may adopt reasonable procedural rules. Also, the agency must keep
written minutes of open meetings which include the: 1) date, time and place of the
meeting; 2) names of the members present; 3) substance of all actions and a record of the
roll call votes; and 4) names of all citizens who appeared and the subject of their
2. Public Notice Rule
The Public Notice Rule requires that whenever the Open
Meeting Rule applies, the agency must give public notice that the meeting will be held.
Specifically, the Public Notice Rule requires notice of:
1) the first regular meeting of each year not less than
three (3) days in advance the meeting;
2) the schedule of the remaining regular meetings; and
3) each special meeting or each rescheduled regular or
special meeting at least 24 hours in advance of the meeting.
When notice is required, it must contain the place, date
and time of the meeting. In addition, the notice must be published in a newspaper
that has a circulation in the same political subdivision as the agency, and it must be
in an obvious location at the building where the meeting will be held.
Pursuant to the previous law, courts have held that if
notice is defective, then the agency may ratify the action at a later properly constituted
meeting. However, permitting ratification under the new law may violate the intent of the
statute. Clearly, the new law protects the public's interest to witness agency discussions
-- not just the "formal action." Thus, once a discussion has taken place at an
invalid meeting, the public's interest is not rectified by mere ratification. However, it
is unfortunate that even in light of the new law and its penalties, a court cannot
recreate the private discussion that caused the injury.
Public notice is not required for an executive session,
conference or when a meeting is called for the purpose of dealing with an actual or
In conclusion, therefore, violations of the Sunshine Act
will generally occur under the Open Meeting Rule whenever a quorum of agency members
"discuss" agency business at a meeting closed to the public. Violations of the
Public Notice Rule will occur if the discussion takes place at a meeting open to the
public, but without proper notice.
There are three (3) types of sessions that are listed as
exceptions to the Open Meeting Rule, but in effect, they are also exceptions to the Public
Notice Rule. The exceptions are: 1) Conferences; 2) Certain Working Sessions; and 3)
A conference is "[a]ny training program or seminar, or
any session arranged by Federal or State agencies for local agencies, . . . conducted for
the sole purpose of providing information to agency members on matters directly
related to their official responsibilities." Conferences need not comply with the
Public Notice Rule, because discussions of agency business may not occur at a conference.
2. Certain Working Sessions
Boards of auditors may conduct closed working
sessions "for the purpose of examining . . . the various . . . records with respect
to which [they] are responsible, so long as official action is taken at a public
3. Executive Sessions
An "executive session" is a "meeting from
which the public is excluded, although the agency may admit those persons necessary [for]
the purpose of the meeting." In order for an agency to conduct an executive session,
it must have a proper purpose and it must follow the proper procedure.
There are six (6) proper purposes for which an executive
session may be conducted:
1) To discuss any matter involving employment or
appointment. However, the individual employees or appointees whose rights could be
adversely affected may request, in writing, that the matters be discussed at an open
2) To hold sessions related to the negotiation of labor
3) To consider the lease or purchase of real property.
4) To consult with an attorney or professional advisor
regarding actual or potential litigation.
5) To discuss business, which if conducted at a public
meeting, would lead to the disclosure of confidential information which is protected by
law -- such as investigations or quasi-judicial deliberations.
6) For State-related higher educational institutions to
discuss matters of the institution's academic standing.
The proper procedure that an agency must follow also
has been defined in the Sunshine Act. Specifically, it states that:
The executive session may be held during an open meeting,
at the conclusion of an open meeting, or may be announced for a future time. The reason
for holding the executive session must be announced at the open meeting occurring
immediately prior or subsequent to the executive session.
Although it is clear that the "reason" for an
executive session must be announced, it is not clear exactly how much information must be
disclosed. A reasonable interpretation would be that the agency must at least disclose the
proper "purpose" (i.e. which of the exceptions) for which the executive
session is to be, or was, conducted.
Agencies may choose to publicly announce the executive
session immediately before or after it takes place -- i.e. at the last open meeting
before, or the first open meeting after, the executive session. If the purpose of the
session is to discuss an employee or appointee, then the agency should publicly announce
the session before it takes place so that any employees or appointees who may be
adversely affected can exercise their right to require that the meeting be open.
Otherwise, the agency should at least give any individual employee or appointee prior
notice of the session. The purpose of such a requirement is to give the affected employees
or appointees the right to require that the agency discuss matter which may affect them in
The Sunshine Act requires only that the agency announce the
"reason," i.e. proper purpose, for the session -- nothing more. It does
not require other public notice. However, the Act protects the agency members by
If the executive session is not announced for a future
time, members of the agency shall be notified at least twenty-four (24) in advance
of . . . the executive session [of] the date, time, location and purpose . . ..
As a general rule, even though an agency may conduct a
private executive session, "official action," i.e. voting, must occur at
a public meeting. However, there is one notable and often overlooked provision of the Act
[T]hose deliberations or official actions which, if
conducted in public, would violate a lawful privilege or lead to the disclosure of
information or confidentiality protected by law . . . shall not fall within the scope of
This extremely broad provision does not limit the exclusion
to the jurisdiction, whether federal or state, or the type of law, whether statutory or
common. The sentence in the Act immediately prior to the above-cited sentence repeals all
state statutes inconsistent with the Act, except those "which specifically provide
for confidentiality of information." It is unclear whether the exclusion is intended
to be limited to relevant state statutes.
D. CHALLENGES, REMEDIES & PENALTIES
A challenge to agency action may be filed in a court of
competent jurisdiction "by any person" within thirty (30) days from the date of
an open meeting. If the meeting was closed, then a challenge must be filed within thirty
(30) days after discovery of the action taken at the meeting, provided that the challenge
is commenced within one (1) year after that meeting. Any party commencing a challenge in
bad faith may be liable for attorney fees.
If a court determines that a meeting was in violation of
the Act, then it has discretion to invalidate any action taken by the agency at that
meeting. In addition, a penalty of up to $100 may be imposed upon any agency member who
"participates in a meeting with the intent and purpose . . . of violating [the Act] .
It is somewhat problematic that the test for determining
whether a violation has occurred is based upon the purpose of the "discussion";
however, the test for determining whether challenges, remedies and penalties are available
is based upon an improper "meeting." Because "meeting" is defined in
the Act as a "prearranged gathering," the effect of a "coincidental
gathering" is unclear.
For example, if a quorum of agency members by chance
visit the same social club, and if they discuss agency business, then they probably will
have violated the Act. However, because the gathering was not prearranged,
it was not a "meeting"; and thus, challenges, remedies and penalties may not be
available. The Act supports this strict view by providing that words shall be interpreted
as defined in the Act, "unless the context clearly indicates otherwise." Of
course, a court may hold that a "meeting" is prearranged at the moment agency
members become conscious that a discussion of agency business will occur.
With specific regard to the penalty provision, an agency
member's intent to violate the Sunshine Act must be distinguished from an intent to do the
thing which violates the Act. For example, if agency members discuss agency business in
violation of the Act, they intend to do the thing which violates the Act -- namely, to
discuss business. However, those members may not intend to violate the Act itself. In
other words, the plain meaning of the Sunshine Act indicates that ignorance of the Act may
be an excuse from a penalty. Whether this good faith type of approach is practical or
consistent with the purpose of the Act is unclear.
The enactment of the Sunshine Act unequivocally
demonstrates the legislature's intent to inspire public confidence in the democratic
process by providing greater public access to information.
However, there are more than a few ambiguities in the Act
itself, and there are obvious practical difficulties with proving alleged violations.
Thus, the state legislature should revise the Act to clarify the ambiguities. Furthermore,
because the state legislature's intent is clear, courts should review agency actions with the perspective that whenever such
actions are not clearly controlled by the Act, then there should be a rebuttable
presumption in favor of the plaintiff. In other words, "politician beware."
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