Opinion: Shedding light on Sunshine Act
April 19, 2009 | Filed in: Sunshine
Act | Open
meetings
OPINION
CHRISTOPHER H. CASEY, Partner
and ERIN GALBALLY, Associate
Dilworth Paxton LLP
Philadelphia Inquirer
"Sunshine,” as Supreme Court Justice Louis D. Brandeis famously wrote, “is the best disinfectant.” A less famous formulation of this same idea is enshrined in Pennsylvania law:
“The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.”
So says the state’s Sunshine Act, which has been an abject failure since its adoption more than 50 years ago. Too often, agencies are allowed to shut the public out of meetings that should be open. It’s time the act lived up to its name.
The act requires that, with a few exceptions, “official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public.” Agencies must also provide public notice of their meetings. Importantly, it is not just “official action” – such as the adoption of ordinances, votes on resolutions, or decisions on agency business – that must be open, but also “deliberations,” which the act defines as “the discussion of agency business held for the purpose of making a decision.”
However, despite this strong expression of legislative intent, there is little the public can do if an agency decides to shut the door.
The problem is that the Sunshine Act carries an inherent Catch-22. In the typical case, an agency will decide to deliberate on an issue and will not issue a notice to the public. A news outlet will learn of the meeting and attempt to rush into court to seek an injunction to stop the gathering. Even if it gets to a judge before the meeting begins, the news outlet will not be able to demonstrate a violation of the Sunshine Act – because the agency has successfully shielded its actions. Once the meeting takes place behind closed doors, the damage is done.
In Conners v. West Greene School District, the Commonwealth Court denied a Sunshine Act challenge to a local school board budget meeting because the only evidence the plaintiff could offer was a newspaper article about what happened in the closed-door meeting, which the court rejected as hearsay evidence.
Twenty years after Conners, proving a Sunshine Act violation remains nearly impossible.
Last fall, when Philadelphia Mayor Michael A. Nutter met with a quorum of City Council in several closed-door briefing sessions on the budget, The Philadelphia Inquirer sought an injunction to open the meetings. Common Pleas Court Judge Gary F. DiVito denied the injunction request, holding that the Sunshine Act only allows a court to prevent “an action that is the result of an allegedly illegal meeting, not the meeting itself.” And, while acknowledging the conundrum that plaintiffs confront when learning of a closed-door meeting at the last minute, DiVito ruled that the newspaper offered no “competent evidence” to support its allegations. In the court’s view, the mayor’s proposed budget legislation, announced the day after his meeting with Council, did not constitute “competent evidence” of a violation.
So what can be done to ensure that such a meeting is open to the public? Amend the Sunshine Act in the following ways:
By passing these simple reforms, our General Assembly will ensure that, at long last, Pennsylvania really does have a Sunshine Act.
CHRISTOPHER H. CASEY, Partner
and ERIN GALBALLY, Associate
Dilworth Paxton LLP
Philadelphia Inquirer
"Sunshine,” as Supreme Court Justice Louis D. Brandeis famously wrote, “is the best disinfectant.” A less famous formulation of this same idea is enshrined in Pennsylvania law:
“The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society.”
So says the state’s Sunshine Act, which has been an abject failure since its adoption more than 50 years ago. Too often, agencies are allowed to shut the public out of meetings that should be open. It’s time the act lived up to its name.
The act requires that, with a few exceptions, “official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public.” Agencies must also provide public notice of their meetings. Importantly, it is not just “official action” – such as the adoption of ordinances, votes on resolutions, or decisions on agency business – that must be open, but also “deliberations,” which the act defines as “the discussion of agency business held for the purpose of making a decision.”
However, despite this strong expression of legislative intent, there is little the public can do if an agency decides to shut the door.
The problem is that the Sunshine Act carries an inherent Catch-22. In the typical case, an agency will decide to deliberate on an issue and will not issue a notice to the public. A news outlet will learn of the meeting and attempt to rush into court to seek an injunction to stop the gathering. Even if it gets to a judge before the meeting begins, the news outlet will not be able to demonstrate a violation of the Sunshine Act – because the agency has successfully shielded its actions. Once the meeting takes place behind closed doors, the damage is done.
In Conners v. West Greene School District, the Commonwealth Court denied a Sunshine Act challenge to a local school board budget meeting because the only evidence the plaintiff could offer was a newspaper article about what happened in the closed-door meeting, which the court rejected as hearsay evidence.
Twenty years after Conners, proving a Sunshine Act violation remains nearly impossible.
Last fall, when Philadelphia Mayor Michael A. Nutter met with a quorum of City Council in several closed-door briefing sessions on the budget, The Philadelphia Inquirer sought an injunction to open the meetings. Common Pleas Court Judge Gary F. DiVito denied the injunction request, holding that the Sunshine Act only allows a court to prevent “an action that is the result of an allegedly illegal meeting, not the meeting itself.” And, while acknowledging the conundrum that plaintiffs confront when learning of a closed-door meeting at the last minute, DiVito ruled that the newspaper offered no “competent evidence” to support its allegations. In the court’s view, the mayor’s proposed budget legislation, announced the day after his meeting with Council, did not constitute “competent evidence” of a violation.
So what can be done to ensure that such a meeting is open to the public? Amend the Sunshine Act in the following ways:
- Courts should be given explicit authority to issue preliminary injunctions to stop meetings that may violate the act before they take place.
- A party seeking such an injunction should be allowed, as in other informal hearings, to offer hearsay evidence in support of the request, and challengers should not have to prove the content of a meeting from which they have been barred.
- Agencies seeking to shield a meeting should be required, prior to the meeting, to describe for the court, in chambers, the topics to be addressed, with appropriate procedures to ensure compliance.
- Penalties for violations of the act should be increased, and agency members held personally liable for payment. Currently, there is a maximum fine of $100 for agency members who participate in a meeting in violation of the act.
By passing these simple reforms, our General Assembly will ensure that, at long last, Pennsylvania really does have a Sunshine Act.