Court rules agency violated Sunshine Act in amending agenda

J. Chadwick Schnee, Esq. • Feb 01, 2024

The Pennsylvania Commonwealth issued a ruling on November 8, 2023 holding that an agency violated open meeting laws when it added the consideration of a collective bargaining agreement with its teachers union without first providing public notice.

The case, brought by now-Senator Jarrett Coleman, alleged that the Parkland School District violated the Sunshine Act when it voted to approve a multi-year collective bargaining agreement with its teachers union when that item was not previously listed as part of a public agenda. In other words, the public had no prior notice that the collective bargaining agreement would be considered unless they happened to attend the public meeting.

The case concerned 2021 amendments to the Sunshine Act that, until now, had never previously been interpreted by an appellate court. Specifically, this section, Section 712.1, provides as follows:

(a) Official action.--Except as provided in subsection (b), (c), (d) or (e), an agency may not take official action on a matter of agency business at a meeting if the matter was not included in the notification required under section 709(c.1) (relating to public notice).

(b) Emergency business.--An agency may take official action at a regularly scheduled meeting or an emergency meeting on a matter of agency business relating to a real or potential emergency involving a clear and present danger to life or property regardless of whether public notice was given for the meeting.

(c) Business arising within 24 hours before meeting.--An agency may take official action on a matter of agency business that is not listed on a meeting agenda if:

(1) the matter arises or is brought to the attention of the agency within the 24-hour period prior to the meeting; and

(2) the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement by the agency.

(d) Business arising during meeting.--If, during the conduct of a meeting, a resident or taxpayer brings a matter of agency business that is not listed on the meeting agenda to the attention of the agency, the agency may take official action to refer the matter to staff, if applicable, for the purpose of researching the matter for inclusion on the agenda of a future meeting, or, if the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement, the agency may take official action on the matter.

(e) Changes to agenda.--

(1) Upon majority vote of the individuals present and voting during the conduct of a meeting, an agency may add a matter of agency business to the agenda. The reasons for the changes to the agenda shall be announced at the meeting before any vote is conducted to make the changes to the agenda. The agency may subsequently take official action on the matter added to the agenda. The agency shall post the amended agenda on the agency's publicly accessible Internet website, if available, and at the agency's principal office location no later than the first business day following the meeting at which the agenda was changed.

(2) This subsection shall not apply to a conference or a working session under section 707 (relating to exceptions to open meetings) or an executive session under section 708 (relating to executive sessions).

(f) Minutes.--If action is taken upon a matter of agency business added to the agenda under this section, the minutes of the meeting shall reflect the substance of the matter added, the vote on the addition and the announced reasons for the addition.

65 Pa.C.S. § 712.1.

The District argued that Section 712.1(a) of the Sunshine Act allows it to amend its agenda for any reason because of the word “or” within this subsection. In contrast, the Plaintiff argued that subsections (b)-(d) of this section provide for the reasons for amending agendas; whereas, subsection (e) provides the process for amending an agenda.

The Commonwealth Court agreed that agencies can only amend agendas for the limited reasons set forth under subsections (b)-(d) of the Sunshine Act.

This decision ensures that, when an agency publishes it agenda, the agency can only amend its agenda for emergencies and other limited reasons. In other words, as a result of this case, the public is able to have advance notice of what actions its government are considering prior to each public meeting.

Attorney Schnee can be reached at chadwick@schneelegal.com or 412.904.2172.

Post-trial motions not required in Right-to-Know Law enforcement

By J. CHADWICK SCHNEE, ESQ. • 01 Mar, 2024
As a matter of first impression, a Commonwealth Court judge has ruled that post-trial motions under Pa. R.Civ.P. 227.1 are not required in an appeal from an order in a Right-to-Know Law enforcement action. In Walker v. County of Bucks, a requester filed an enforcement action against an agency and its open-records officer where the agency had filed two appeals of the same OOR final order (rather than two appeals of two different OOR final orders), arguing that relief in mandamus was appropriate because one of the two OOR final orders was not appealed.[1] The trial court rejected the complaint, holding that relief in mandamus “is not clear at this time” due to a pending motion to substitute one its appeals.[2] The requester appealed but did not file post-trial motions. The agency argued that, under Pa.R.Civ.P. 227.1, the requester “waived all issues on appeal and her appeal must be dismissed” because she did not file post-trial motions. Commonwealth Court Judge Dumas disagreed, holding that a RTKL enforcement action “is not a situation where post-trial motions had to be filed” because the complaint in mandamus was covered by “‘petition practice’” as set forth under the Note to Pa R.A.P. 3761.[3] Instead, “it is evident that the mandamus action filed by Appellant was in petition practice, such that post-trial motions were not necessary.”[4] While this is an unreported memorandum opinion of a single member of the Commonwealth Court, parties to a RTKL enforcement action potentially may not be required to file post-trial motions in order to preserve issues on appeal. (This post should not be considered legal advice. For more information or to discuss, Attorney Schnee can be reached at chadwick@schneelegal.com ). [1] Walker v. County of Bucks, 974 C.D. 2023 (Pa.Cmwlth. Jan. 31, 2024) (Dumas, J.) (unreported). The author represents the requester in this matter. [2] Id. [3]The Note provides Pa.R.A.P. 3761(b) provides the method for seeking compliance with a final determination of the Office of Open Records in the Commonwealth Court. This differs from proceeding in the courts of common pleas, where the method to obtain judicial review of alleged failure to comply with a final determination of the Office of Open Records may be an action in mandamus or other petition authorized by local rule. Capinski v. Upper Pottsgrove Township, 164 A.3d 601 (Pa. Cmwlth. 2017). Use of this petition is appropriate when the final determination was not appealed. If an appeal was taken and the order affirmed by the Commonwealth Court, enforcement is not of the final determination of the Office of Open Records, but rather of the order of the Commonwealth Court. [4] Walker v. County of Bucks, 974 C.D. 2023 (Pa.Cmwlth. Jan. 31, 2024) (Dumas, J.) (unreported).

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