Pennsylvania Supreme Court July 2024 (Jen Barker Worley/Administrative Office of the Pennsylvania Courts)
This story was originally published by WESA. It is not available for republication.
In a 4-3 decision, the Pennsylvania Supreme Court ruled Monday that local agencies don’t have to give 24 hours’ notice of changes to the agenda of public meetings – as long as a majority of the body votes to do so.
The decision has angered government transparency advocates who say it weakens the state’s Sunshine Act, which sets requirements for conducting official business in the presence of the public.
According to the ruling, said Melissa Melewsky, in-house counsel for the Pennsylvania NewsMedia Association: “[Local agencies] they can add anything they want as long as they vote to add something to the agenda and then post it the day after the meeting. “How can the public say with any certainty what will be discussed and what will be discussed when the agency can add virtually anything at the last minute?”
As part of the corrections signed into law in 2021 by Governor Tom Wolfthe Sunshine Act typically requires officials to post agendas at least 24 hours in advance. The agenda usually requires specifying the votes that officials plan to cast.
But in her majority opinionJudge Christine Donohue, noted that the law also provides some exceptions to this requirement. These include emergency votes where there is a “clear and present danger” to the community, or situations on late-developing issues that involve inconsequential decisions or cases where an agency takes administrative action before political discussion or voting.
But as Donohue wrote, the law also provides an additional exception: “An agency may add an agency business issue to the agenda” if approved by a majority of the voting members.
This latter category of layoffs occurred in a court case involving the Lehigh Valley School Board’s October 2021 vote to approve the teachers union contract. Earlier in the day, the union agreed to a deal that included a 3% pay raise for nearly 700 teachers: Although there was no mention of the contract on the agenda, a majority of the board voted to add it during the meeting and then voted to approve the contract.
The management argued that the agreement with the union was reached on the same day, so the authority did not have time to notify the public about the change. However, the state senator representing the area, Republican Jarett Coleman, took the board to court.
Coleman argued that to allow for last-minute changes to the agenda, all four exceptions under the law should be included, and the state’s Commonwealth Court ruled in his favor. Advocacy groups across the ideological spectrum — including the ACLU of Pennsylvania, the conservative Commonwealth Foundation and the Pennsylvania NewsMedia Association — urged the Supreme Court justices to uphold the ruling.
But Monday’s ruling was all about one word: “or.”
Donohue noted that when the Sunshine Act identified four categories of exceptions to the 24-hour rule, it separated them with the word “or.” She wrote that this is “clear and creates four independent exceptions,” each of which is sufficient to waive the notice requirement.
Donohue acknowledged that the supermajority exception is the “broadest exception” of the four because it does not require the cases to be minor or of life-and-death significance. But she said requiring officials to report by voting on whether to add an item to the agenda ensures accountability.
“If [legislature] intended something other than hat is expressed in this plain text is free [to] change the statute,” she added.
Not everyone agreed, and the ruling led to an unusual ideological split. Donohue’s opinion was joined by Judge Kevin Dougherty, who like her was elected as a Democrat, but also by Sallie Updyke Mundy and Kevin Brobson, who were elected as Republicans.
Chief Justice Debra Todd and Justices Daniel McCaffery and David Wecht – all elected Democrats – dissented. Todd argued that allowing most officials to arbitrarily bypass the 24-hour notice “would effectively end.”[ride] narrow exceptions to the agenda requirement.”
“While I agree with the majority that the plain and common meaning of the term “or” should be taken literally… to apply that plain meaning would lead to an interpretation of the Sunshine Law that is inconsistent with the manifest intent of the General Assembly” – Todd he wrote.
Coleman agreed. In a statement, his office said the court’s majority “opened Pandora’s box. Despite the split decision, today is a black day for transparency in Pennsylvania. This ruling negates the need for governments to release accurate agendas twenty-four hours before public meetings and essentially allows them to operate without public notice.”
Melewsky predicted that lawmakers would respond with another amendment to the Sunshine Act.
“If there is a decision that calls for legislative change, this is one of them,” she said. “The General Assembly has made clear what it intends to do in 2021 by adopting this agenda requirement, and this decision truly renders it meaningless.”
