Transparency in Local Government - The Sunshine Act

Municipalities are governed and regulated by many state laws. Some pertain to substantive decisions and actions, but others relate to conduct and procedure. 

One of the more well-known is the Sunshine Act. Of late, it has drawn significant interest, locally, in many municipalities. The “Act” requires all governmental agencies in Pennsylvania to advertise its meetings and deliberate and discuss agency business in a public setting. Local agencies are better known as townships, cities, boroughs and school districts. All actions of an agency must take place at a public meeting. In addition, members of the public are afforded a right to comment prior to any official action (motion) of an agency. 

As with all rules imposed by law, there are exceptions within the “Act” to allow agencies to escape a public forum and discuss certain issues behind closed doors outside the public eye. The “exceptions” are specifically enumerated in the “Act”.  The most frequently used are discussed below.

Personnel. This exception relates to discussions involving a specific individual or individuals as opposed to a generic position or a group of positions.

Litigation (either threatened or actual). This exception is rather self-explanatory. It applies when an agency is a party (Plaintiff or Defendant) in a court action (lawsuit) or in an administrative proceeding. 

Real Estate. This exception applies to real estate to being acquired by a municipality, either by purchase or lease. It does not apply to the sale or disposition of real estate.

Matters of Collective Bargaining. This applies to negotiations with labor unions, both uniform and non-uniform employees. Typically, a municipality will have labor contracts with its police officers and potentially with its civilian employees.

Judicial Deliberations. This is most frequently utilized by Zoning Hearing Boards and Civil Service Commissions following evidentiary hearings, but can also apply to municipalities when they are in a quasi-judicial capacity such as conditional use hearings, grievance hearings or local agency appeals.

The rationale for the five exceptions is rather apparent. None of the topics, if discussed publicly, would allow an agency to operate efficiently or effectively. 

The personnel exception (although easy to abuse and overuse) is to discuss an employee’s performance, either good or bad. Those frank discussions certainly could lead to an employee being promoted or terminated. The exemption also applies to conduct that could result in an employee being disciplined. On the other hand, it also could be used for discussions when hiring a prospective new employee.

For obvious reasons, issues involving litigation (strategy, strengths, weaknesses and/or possible settlements) need to be private so sensitive information is not shared with the opposing parties. 

Similar reasons apply when a municipality is interested in acquiring real estate. The negotiations concerning the terms and conditions of an Agreement of Sale require secrecy in order not to escalate or increase the possible purchase price of the real property.

Negotiating labor contracts also requires limited public discussion in order to prepare a strategy during contract talks. Proposals and counter-proposals are exchanged during negotiation and the need for confidentiality is similar to negotiating acquisition of a real estate purchase or discussing strengths and weaknesses of litigation.

When properly used, these exceptions are necessary for an agency to address these issues when they arise. However, when any of these topics are close to resolution or finalization, they must be discussed at a public meeting and ultimately voted upon by the governing body through formal motion. 

In a future article, additional topics will be discussed, which include a recent decision by the Pennsylvania Supreme Court that has perhaps expanded the use of the Sunshine Act through judicial process. In addition, practical applications and uses of the Sunshine Act for municipalities will be examined.

Charles D. Garner, Jr., Esquire is an attorney in the law firm of Wolf, Baldwin & Associates, P.C., which maintains offices in Pottstown, Reading and West Chester.  He has significant experience in municipal representation, zoning and land use matters. He and the firm have other diverse experience including small business representation, municipal employment negotiation and litigation, contracts and civil litigation, and estate planning and administration. In addition, Mr. Garner is currently the Chairman of the New Hanover Township Board of Supervisors and has served as an elected supervisor since 2016. Mr. Garner can be reached at 610.323.7436 or by email to cgarner@wolfbaldwin.com.

 

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