Since anyone can remember, Pennsylvania’s Sunshine Act (“The Act”) has been the battleground for advocates of transparency in local government.
The Act, with its allowances for executive sessions, seeks to balance transparency against the demands for confidentiality. But what about when deliberations take place behind closed doors? Otherwise known as a Smith fact-finding session – what is that and how did it come about? The Act provides for executive sessions (not open to the public) for reasons relating to:
- Personnel matters
- Collective bargaining agreements
- Considering the purchase of property
- Consulting with its solicitor or “other professional advisor” in connection with litigation and:
- Reviewing agency business otherwise protected by privilege
In 2013, after three years of litigation determining what constitutes ‘deliberations,’ the Pennsylvania Supreme Court found that supervisors’ four closed door sessions did not violate the Act as the meetings did not include deliberations and were held for informational purposes only. (See, Smith v. Township of Richmond). In doing so, the Court essentially created a ‘fact finding exception.’ A review of Smith provides that the meetings, announced as “executive sessions” included that a quorum of the board held private, informational sessions with parties to a contentious piece of litigation (related to a quarry). Their solicitor explained that there were no deliberations or decisions rendered. Rather, the purpose was to permit the supervisors to question and obtain information to help them make an informed decision regarding ongoing litigation. A Sunshine Act complaint was filed – contending that the informational executive sessions violated the Act followed by extensive litigation including witness testimony that no deliberations took place, only questions. As the Court determined that no deliberations occurred in these fact-finding meetings, there was no violation of the Act and the Smith fact-finding session was born.
Should your municipality choose to exercise this non-deliberative fact-finding process, caution should be exercised. Your agency may incur a risk that citizens will challenge the propriety of its actions, and consequently, you will have to defend the actions in the context of legal proceedings where an evidentiary record is developed and a determination made by a fact-finder concerning whether a violation occurred.
Further caution should be exercised by your municipality as the holding was very fact-specific, relying upon the testimony that each supervisor confirmed under oath that no deliberations occurred. There is no room for extending the purpose of the meeting beyond fact finding. As an example, a similar meeting was found to have violated the Act where the agency held a meeting with the solicitor and third parties regarding litigation. The meeting was not deemed to be held for legal advice from the solicitor as a third-party shopping center was included in the meeting, which supported its position on a tax issue.
What does this mean for your municipality?
Public entities may hold fact finding sessions where no official action or deliberations take place. As the Court has cautioned, however, there is a risk that your agency will have to defend such meetings, so ensure any fact- finding sessions are just that – and nothing more.
Finally, proceed with caution as legislation has been introduced to limit fact-finding sessions. (House Bill 37, seeks to amend the definition of “deliberation” to include an informational meeting or briefing thus requiring a public meeting). As of the date of this writing, HB 37 remains pending with the State Government Committee. Siana Law will continue to monitor HB37 and its potential effect on Pennsylvania’s Sunshine Act.
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