Pennsylvania Courts Offer Guidelines for Executive Sessions Under the Sunshine Act

September 29, 2016Alerts Education Alert

Public boards in Pennsylvania are permitted under the Sunshine Act to hold executive sessions, but the statute is silent on how specific a board’s announcement must be to justify closing a meeting to the public.

Since the statute sets no specific rules for such announcements, the courts in Pennsylvania have been forced to offer some guidance — sometimes looking to decisions from other states.

Executive sessions are defined in the law as meetings “from which the public is excluded.” In practice they are simply closed-door meetings involving private deliberation.[1] Courts have recognized that, despite the Sunshine Act’s general mandate of openness in public meetings, “the public would be better served in certain matters if the governing body had a private discussion of the matter prior to a public resolution.”[2]

But the law also requires that a board inform the public that it held an executive session and why. This year, after a school board got in trouble for giving reasons that were too short and nondescriptive, people started asking how specific a board’s executive session announcement must be.

The law does not answer that question.[3]  So Pennsylvania courts have examined how other states have treated similar requirements and came up with the rule: “the reasons [given] … must be specific, indicating a real, discrete matter that is best addressed in private.”[4]

There are six possible bases for an executive session.[5] But so far, the courts have given more specific guidance only for one type — the so called “litigation” basis.[6] There, the Pennsylvania courts have said that the board’s announcement must at least “identify the subject of the litigation.”[7]

Balancing the need for specificity with the reason for deliberating behind closed doors, an executive session announcement should generally start with the time/date and length of the executive session, then state what the executive session was held to discuss.

For example:

  • When discussing the percentage raise the board members will consider in negotiations with teachers, saying “strategic issues connected to negotiations with the teacher’s union” (not simply “negotiations”).
  • When discussing with the board’s counsel a parent’s claim to have fallen on school property, saying a threatened personal injury matter” (not simply “legal”).
  • When discussing the hiring of a particular individual as a new assistant principal, saying “employment of a particular administrative employee” (not simply “personnel matters”).
  • When discussing the improper conduct of a teacher, saying “the performance of a particular individual/group of professional employees” (not simply “personnel topics”).
  • When discussing a disciplinary matter relating to a particular student, saying “confidential student matters protected by law” (not simply “legal”).
  • When discussing with counsel the Sunshine Act’s requirements for executive sessions, saying “privileged matters with the board’s counsel” (not simply “legal matters”).

The courts have stated that a public board is not expected to govern in a fishbowl and that there are certain matters where it is best for a board to be able to deliberate in private. Nevertheless, if a board believes it can give greater detail to the public concerning those private discussions without making the executive session pointless, it is supposed to do so.

For more information about this alert, please contact A. Kyle Berman at 610.397.7980 or [email protected] or any member of the firm’s Education Practice.

[1] See, 65 Pa.C.S. §703.

[2] Reading Eagle Company v. Council of the City of Reading, 627 A.2d 305, 306 (Pa. Cmwlth. 1993).

[3] The law says only: “The reason for holding the executive session must be announced at the open meeting….” 65 Pa.C.S. §708(b).

[4] Reading Eagle, 627 A.2d, at 307.

[5] Identifiable personnel, labor negotiations, considering lease or purchase of property, litigation, other privileged or confidential information and (for state/community colleges) admissions/standings. 65 Pa.C.S. §708(a). In an unreported matter the Commonwealth Court upheld that the above included discussion of the sale of property, as well.  In re Brazill, 2008 WL 9396747 (Pa. Cmwlth.)

[6] “[t]o consult with its attorney … regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.” 65 Pa.C.S. §708(a)(4).

[7] Butler v. Indian Lake Borough, 14 A.3d 185, 189 (Pa. Cmwlth. 2011), citing Reading Eagle. Note that in Reading Eagle the Commonwealth Court upheld an order requiring the party names and docket number of any pending cases discussed.