Demystifying the Executive Session in the Pennsylvania Sunshine Act
The Pennsylvania Sunshine Act is extremely narrow in its definition of an executive session. All too often, elected officials and their legal counsel label closed meetings “executive sessions” despite the narrow definition. Executive sessions can be broadly defined as meetings in which a prearranged quorum of elected officials may meet privately to discuss governmental business.
When Meetings may be Closed to the Public
When determining whether a meeting may be closed to the public, consideration must be given to the manner in which an executive session is defined by the Act. Executive sessions may take place to discuss:
- Matters involving employment*
- Matters related to negotiation or arbitration of a collective bargaining agreement, labor relations and arbitration
- Meetings to consult with an attorney or other professional advisor regarding confidential information or strategy in connection with litigation
- Meetings to review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law
There are no other basis executive sessions can be held under the Pennsylvania Sunshine Act.
Timing on Notification of Executive Session
The Sunshine Act provides the procedure through which executive sessions may be held. A frequently misunderstood area is that in order to be proper, an executive session must be announced at the open meeting at which the executive session will be held; or during the meeting prior or subsequent to the executive session. Some Courts have required great specificity with respect to what is being announced particularly with respect to litigation matters. The most important aspect of understanding executive sessions is that all official action must be done at an open meeting.
The Official Determination
The determination as to whether a meeting is properly characterized as an executive session, should be based upon a strict interpretation of the statute. Pre-arranged meetings of a quorum of the governmental entity to discuss township business which do not specifically fit within one of the six enumerated categories must be open to the public. Additionally, matters such as negotiation of lawsuits which include both sides of litigation have generally been classified as non-executive sessions. In this regard, an executive sessions must only include those people who would preserve the attorney/client privilege. Thus, anybody present at an executive session who destroys the attorney/client privilege would render the meeting an improper executive session.
A Word of Caution
Because executive sessions, mistakenly labeled, could have the effect of undoing all Township business transacted, solicitors and elected officials should be extremely cautious in declaring a matter an executive session. Further caution should be used in the manner in which the executive session is announced.
Finally, quasi-judicial deliberations are excepted from the Sunshine Act pursuant to 65 Pa. C.S. §716 indicating that quasi-judicial deliberations shall not fall within the scope of the chapter. Despite this language, the Courts have still required governing bodies to follow the procedures for an executive session when dealing with quasi-judicial deliberations. Some Courts have gone so far as to call quasi-judicial deliberations executive sessions. We believe that the better practice would be to announce all quasi-judicial meetings in the same manner as executive sessions to avoid this trap.
There are only a few narrowly defined areas where a quorum of a governing body may exclude the public from their meeting. The provisions of the Sunshine Act setting forth the categories which may be discussed at an executive session must be strictly construed. The executive session, once properly categorized, must then by properly announced. It is also recommended that although excepted from the Sunshine Act, quasi-judicial deliberations should be announced in the same manner as executive sessions. By following these guidelines, you should be able to avoid wrongfully closing a meeting, and having the action taken vacated.
*The caveat that should the employee whose employment is being discussed at the executive session so desire, such matter or matters must be discussed at an open meeting.