Sunshine Act Abuse Should not be Tolerated

Citizens should know what issues their school boards, borough councils and other government agencies plan to deliberate and/or vote on at public meetings.

Call this commonsense requirement what it is: the law in Pennsylvania.

Since 2021 the Sunshine Act, or state open-meetings law, requires that a government agency make its meeting agenda available at least 24 hours in advance of a public meeting. The agency must post the agenda on its publicly accessible internet website, if it has one, as well as at the agency office and at the location of the meeting. In addition, copies of the agenda must be made available to individuals in attendance at the meeting.

The public must get a heads-up from government on road repairs, contract agreements, tax hikes, budget proceedings, environmental matters affecting health and safety, and other pending issues so individuals can be fully informed, attend meetings on topics that concern them, and participate in the decision-making process.

Once the agenda has been finalized and posted for the public, according to Act 65, the agency may not take official action on any item that is not listed on the agenda ‒ except in emergency situations or on insignificant matters that create neither a contract nor involve expending funds.

The Pennsylvania NewsMedia Association is concerned that agencies have begun to rely on the exceptions provision to address significant and controversial issues, which does not allow for meaningful public comment. Examples where local government has improperly moved forward include:

• Upper Mount Bethel Township in Northampton County, which approved an indemnity agreement with a developer seeking to build a 5.8-million-square-foot industrial park for manufacturers that opponents believe would harm the rural character of the township.

• Bucks County, where the water and sewer authority voted to enter exclusive talks to sell its wastewater system for $1.1 billion before formally soliciting public feedback on the proposal.

The exceptions provision is the subject of an appeal before the Commonwealth Court. A school board director for Lehigh Valley’s Parkland School District initially filed a suit after the board voted in 2021 to approve a collective bargaining agreement with the teachers’ union that was not listed on the agenda in advance of the meeting. As a result of the vote, the agreement, in part, provided teachers with 2.9-percent annual raises as part of a three-year contract.

Former board member Jarrett Coleman said at a subsequent board meeting that he did not object to teachers getting higher pay, but rather to the lack of transparency by the board. He argued in Lehigh County Court of Common Pleas that because the board did not put the contract on its agenda in advance of the meeting it violated the Sunshine Act. The court dismissed the suit; Coleman, who is a freshman state senator serving parts of Lehigh and Bucks counties, is appealing.

Because the outcome of the case has statewide implications for the news media industry and public access to information, PNA has filed an amicus brief in support of Coleman’s position. We make the argument that Parkland’s eleventh-hour move to act on a big contract with wide-ranging implications for teachers and taxpayers ventured far from both the intent and spirit of the law. Furthermore, the lower court’s holding would make the advance-agenda requirement utterly ineffectual, which decries the public policy behind its passage.

Government agencies must be limited in taking action on issues added to an agenda at the last moment or risk abuse to government transparency and accountability.

State Sen. Patrick Stefano of Fayette County sponsored the legislation after he learned that a school board in his district added an unexpected vote on a new superintendent to a board agenda. “A lot of people were interested in the superintendent issue, and the board voted on it at a meeting where no one was there,’’ he said. “That should never happen.”

PNA and its members agree. That is why our organization supported and advocated for Stefano’s efforts, which won unanimous approval in both legislative chambers. It is also why we call out those who threaten to limit or withhold the information essential to robust public participation.

The health of our democracy depends upon it.

The Pennsylvania NewsMedia Association is the official trade organization for print, digital and news media-related members statewide. Founded almost a century ago, PNA has advocated for legislation that improves public access laws in the commonwealth.