Option to purchase ends agency's right to executive session


From the PNA Legal Hotline

By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: A local agency has agreed to purchase property to be used to store and repair government-owned vehicles. An option to purchase has been obtained but the sale is not complete. The agency continues to hold private discussions about the property citing the real estate executive session exception. Can they do that?

A: No, the Sunshine Act only allows agencies to privately discuss the purchase of real estate until an option to purchase has been obtained. An option to purchase grants the buyer, in this case the local agency, the exclusive right to purchase property.

The general rule of the Sunshine Act requires quorum deliberations of agency business to occur at a public meeting unless an exception applies. There are a number of limited exceptions that allow private deliberations including one related to the purchase of real property. Section 708(a)(3) of the Sunshine Act allows agencies to deliberate privately:

“To consider the purchase or lease of real property up to the time an option to purchase or lease the real property is obtained or up to the time an agreement to purchase or lease such property is obtained if the agreement is obtained directly without an option.”

Once an option to purchase has been obtained, the real estate exception to the Sunshine Act no longer applies. The general rule of the Sunshine Act applies and requires quorum discussions about the property to be held at a public meeting unless the agency can rely on a different exception to the law.

Pennsylvania Newspaper Association attorneys provide member newspapers with advice on government access issues.