In 2020, significant aspects of our personal and professional lives have changed. That includes the way in which elected officials and staff operate our local government entities. In Pennsylvania, the Sunshine Act, 65 Pa C.S.A. §701 et seq. (the “Act”), is still in full force and effect, despite the actual limitations on operating during the pandemic. Relief from some of the rigors of the process of complying with the Act can be found in the local and state emergency disaster provisions of Pennsylvania Law. See 35 Pa. C.S.A. §5741. These provisions give local government relief from in-person meetings, counting a quorum, and methods of public comment. The revised provisions can be implemented through the disaster emergency provisions of 35 P.S. §7501(d). These exceptions to process will stay in place as long as the Governor’s disaster emergency declaration is effective. Governor Wolf has issued ninety (90) day declarations since March 6, 2020, with the current declaration expiring on February 24, 2021. We would expect another amendment to extend the declaration for another 90 days.
While these exceptions to process are helpful, elected officials are cautioned not to get sloppy in their Sunshine Act compliance. Reasonable, practicable efforts need to be made to comply with the underlying transparency requirements of notice to the public of meetings, including ways in which the public can participate in said meetings. Furthermore, the revisions set forth in 35 Pa. C.S.A. §5741, require specific notice to those affected and the general public of local government actions that are not related directly to Covid-19, such as land development decisions. Nearly a year has passed and there is little excuse for not notifying the public of meetings and alerting them on how to participate.
Communication among elected officials is challenging during the pandemic. And in-person meetings are not necessarily possible or recommended. Elected officials who communicate with each other outside of open meetings, even those held under the exceptions, do so at the risk of violating the Act. This is particularly difficult for three-member elected boards, but all elected officials should remember that the Covid-19 revisions to public meetings and public comment do not excuse chatting on social media platforms or by email in ways that can be described as deliberating on agency business.
Inadvertent Sunshine Act violations can generally be cured. If deliberation over agency business occurs outside a public meeting, and before action is taken, the cure is to thoroughly deliberate over the business in a public meeting before a vote occurs, even if this delays the vote. If action is already taken before the violation of the Act is discovered, consider rescinding the prior vote and taking action again. This can save the entity time, embarrassment, resources, civil fines, and delay of agency business.
While there is no particular agency that oversees Sunshine Act compliance, the Act makes it fairly straightforward for individuals or entities aggrieved by a violation of the Act to get relief. An action must be filed in a Court of Common Pleas where the meeting occurred within thirty (30) days of the meeting or from the discovery of the action taken in violation of the Act. Attorneys fees and costs are available to the prevailing party. The court may issue equitable relief stopping local government actions pending a determination of whether the requirements of the Act were met and may invalidate actions taken at meetings where the Act was violated. Civil fines may be imposed against individuals attending a violative meeting.
The underlying purpose of the Act is alive and well in the pandemic–that is transparency in the government decision-making process and in the actions taken.