Sunshine Act now requires online posting of agendas
By SARIT LASCHINSKY
Special to The Press
The Pennsylvania Office of Open Records offered an informational webinar July 14 to discuss recent changes to the Sunshine Act, as well as the act’s general workings.
According to OOR, the Sunshine Act requires state or local government bodies, and relevant committees deliberate and take official action in a public meeting; that these meetings have prior notice; and that the public can attend, participate and comment before official actions are taken.
George Speiss with the OOR led the webinar.
He noted a new law, Senate Bill 554, amends portions of the Sunshine Act to require an agenda be posted for public meetings at least 24 hours in advance of the meeting time.
This law which will go into effect Aug. 29, includes regular and special meetings, and applies to all agencies which are subject to the Sunshine Act.
Speiss said the law specifically mentions agenda information must be posted to a municipality’s website or a social media page used in lieu of, if the municipality does not have a website, as well as the meeting location and agency office, if the latter is different from the meeting location.
Paper copies of the agenda must also be provided at the meeting itself.
Speiss said enough information must be provided that a “reasonable person could figure out what it is you’re going to talk about, and what it is you’re going to vote on.”
He noted if changes must be made to the agenda within the 24-hour window, it can only be for a “di minimus” item, in which there is no expenditure of funds or entering into contracts.
Speiss added, however, the board can amend the agenda during the meeting by majority vote, and will be allowed to deliberate and vote as normal.
He said the chairman of the meeting must provide the complete reason for the amendment before taking any actions, and the amended agenda must be appropriately posted to the website, place of business and meeting site within 24 hours after the meeting, and the meeting minutes must reflect the vote to change the agenda and any resulting decisions.
In response to a question about making agendas available for virtual meetings or people attending by phone, Speiss said the OOR had, just hours before the webinar, amended its guidance for public meetings and the use of social media.
He referred to the lifting of mask and social distancing requirements.
“Our expectation is all public meetings will now have a physical presence and virtual only meetings are not acceptable,” Speiss said.
Speiss said language in the Sunshine Act relative to meeting sites, and the Legislature’s passing of Act 15 in 2020, which allowed virtual meetings and has been suspended with the lifting of Gov. Tom Wolf’s emergency order, created the assumption that before Act 15 came into effect, the Sunshine Act assumes physical meetings will be held.
He said hybrid meetings are still allowed because they accommodate physical presence, but said purely online meetings would not be consistent with the Sunshine Act.
In order to accommodate people attending hybrid meetings virtually or by phone, Speiss said posting the agenda on the municipality’s website or social media and directing people to these locations was acceptable.
Additionally, Speiss discussed various aspects of the act beginning with its jurisdiction, noting the Sunshine Act covers government bodies or committees which perform essential government functions and exercise authority to take official action.
“Official action” is defined in the act as recommendations made by an agency pursuant to statute, ordinance or executive order, the establishment of policy by an agency, the decisions on agency business made by an agency, and the vote taken on any motion, proposal, order or similar item.
To determine which committees are covered under the Sunshine Act, Speiss said some guidelines include whether the committee has decision-making authority, if its members are appointed by the board and authorized to act on its behalf, and whether recommendations are pursuant to statute, ordinance, or regulatory authority and result in the making or enactment of law, policy or regulation.
Regarding meetings, Speiss said a quorum of committee or board members must be present to take action, and committee members are allowed under the Sunshine Act to virtually “phone in” so long as there is a one-to-one connection, without a middleman relaying information.
He said all attendees and board members must be able to hear the member phoning in, and the virtual participant must also be able to hear everybody directly.
Furthermore, Speiss said under the borough code and first-class township code a quorum of members must be physically present for a meeting, after which any additional members can call in virtually.
He warned against holding meetings by email or social media.
“When you do that, it’s out of the public eye, the public is not present, and it is not consistent with the spirit of the Sunshine Act, and more than likely would result in a violation,” Speiss said. “If it is something that would typically be discussed at a meeting itself, that needs to occur in a public setting, do not use email for that.”
Regarding public notice, Speiss said the Sunshine Act requires a board give three days advance notice from the first regular meeting of the year, usually an organizational meeting, in a legal notice.
This legal notice must include the date, time and place of the organizational meeting, as well as the dates for all remaining meetings during the year.
He also said if there is a conflict and the board cannot follow the originally-posted schedule, the board must go back and repost a new legal notice with the new dates, at least three days in advance.
The legal notice must be placed in a paid newspaper of general circulation, and must be posted at the meeting site.
Newspaper articles, postings on a municipality’s website or sales circulars do not fulfill this requirement.
Speiss said the Sunshine Act accommodates for special meetings, which are not previously scheduled, and said these meetings require at least 24 hours advanced notice instead of the standard 72.
He clarified that this 24-hour period must be from when the legal information appears in the newspaper of general circulation.
There are also Sunshine Act provisions for emergency meetings.
“ ... where you have a bona fide emergency where a decision needs to be made posthaste,” Speiss said, adding in which case no public notice is required. Speiss said, however, municipalities cannot create emergencies.
If a meeting is canceled, no notification is required, but Speiss highly suggested municipalities use all means to notify members of the public of the cancellation.
For public comment, Speiss said the governing board can limit public comments to residents and taxpayers only, and may also establish reasonable rules such as setting time limits, asking a large group to designate spokespersons, or having specific versus general comment periods.
However, he noted the public does have a right to comment on issues that are, or may be, before the board before members take action on these items.
Speiss also discussed details regarding executive session, in which board members meet outside the public eye, but cannot take any official action or votes.
He said these sessions can be held before, during or after a public meeting, or can be announced for a future time, but Speiss said the complete reason for the executive session must be announced at a public meeting by the chairman.
These meetings have no requirements for minutes, and if minutes are taken they are exempt from disclosure under the right-to-know law.
Speiss also discussed violations, and said during an open meeting the public can object to perceived violations of the Sunshine Act at any time, and are not out of order by doing so.
In response, Speiss said the board can acknowledge the possible error and “cure” its own violation of the act.
However, he said if the board proceeds without responding to the perceived violation, members of the public can seek legal relief in the courts within 30 days of the alleged issue, and if there is believed criminal culpability can also go to the district attorney.
Speiss said if a judge decides a violation had occurred, repercussions can range from a warning all the way through the voiding of meeting actions or fines levied against the officials, which must be paid out-of-pocket.
Under miscellaneous items, Speiss said agencies must produce meeting minutes which detail date, time and place of meetings, board attendance, business items and, if there is a roll call, who voted for and against these topics.
These meeting minutes, as well as any agency recordings of the meeting, are considered public records.
Finally, Speiss said members of the public can record public meetings unannounced, and would not be in violation of the Sunshine Act or the state’s wiretap laws.
More information can be found on the OOR’s website at openrecords.pa.gov.