Notice

Important Sunshine Act UPDATE Commonwealth Court Rules on Act 65 Meeting Agendas

November 17th, 2023

Act 65 of 2021 amended the Sunshine Act to compel publication of the agenda for an agency’s meetings, including a list of items that will be before or may be the subject of a discussion and/or consideration at the meeting.  Prior to the enactment of Act 65, there were times that the public left a meeting and then discovered afterwards a contract was approved or a vote on a very controversial item was taken.  This law provided the public with mandatory notice of all items to be considered at a public meeting, which prior to August 31, 2021, was not required.

Mr. Coleman, a resident of the school district, attended the Parkland School Board’s monthly meeting. Despite the posted agenda, there was no item listed to approve the teachers ‘contract. During the public meeting, a board member made a motion to add the collective bargaining contract to the meeting agenda because the teachers had just ratified it earlier that day, and the members voted to approve it. Mr. Coleman sued the school district claiming that it violated Section 712.1 of the Sunshine Act which lists very specific reasons when the agenda mandate could be waived.

The lower Court ruled in favor of Mr. Coleman as the item was not included in the original agenda, wasn’t readvertised, and wasn’t de minimis.  The lower Court invalidated the contract, but it refused to allow him to recover attorney fees and other costs.

He appealed and the Commonwealth Court cited another case, Schmidt v. Ringgold, No. 22-0128, (Ct. Common. Pls. Washington Co. December 9, 2022). The Court ruled that agencies under the Sunshine Act are compelled to explain one of the three reasons (emergency, business arising within 24 hours of the meeting, or business brought up by the public) that it was exempt from voting on unlisted agenda items. Then the majority of the agency must vote before it adds the item to the agenda to be followed by the posting of the revised agenda after the fact.

Many local governments were not adhering to the strict language under 712.1 and using the broad exception in subsection (e) to add any item to the agenda at a public meeting.

When the original bill went through the General Assembly, it was the intention of the drafters to allow an agency, by a majority vote, to add any item to the agenda for any reason and subsequently post the revised agenda.  Unfortunately, the Commonwealth Court did not share that interpretation of Act 65.

Please be aware that any borough that took official action on any item added to their published agenda should review such actions with your solicitor to ensure compliance with this decision.

PSAB has not heard of an appeal to the PA State Supreme Court. We will update you if any appeal is filed.

For a copy of the Court’s decision, please click below.
Coleman v. Parkland

For a copy of the Sunshine Act, please click below: https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=65&div=0&chpt=7

Disclaimer: PSAB does not provide legal opinions or legal services and nothing in this update is to be so construed or accepted as such.