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Sunshine Act: Fact Finding is not Deliberation

A government body subject to the Sunshine Act’s requirement of public decision-making is free to engage in non-public information gathering sessions, including private meetings with opposing parties in ongoing litigation in which a quorum of the agency members participate, so long as the actual decision-making, or “deliberation” takes place at a public meeting, the Supreme Court has ruled. In Smith v. Township of Richmond 34 MAP 2013, __A.3d __ (December 16, 2013), the Pennsylvania Supreme Court “allowed appeal on a limited basis to examine whether the Sunshine Act’s definition of ‘deliberations’ is implicated where… an agency meets with various parties – including opposing parties in litigation – to obtain information designed to help the agency make a more informed decision with regard to settling the ongoing litigation.” In finding no violation and permitting the fact-finding sessions, the Court affirmed the decisions of the Commonwealth Court and the trial court.

The supervisors of Richmond Township in Berks County, engaged in litigation with a cement company that sought to expand its quarry operations into the township, decided to conduct a series of four non-public sessions to help to acquaint the newly elected supervisor and newly appointed township solicitor with the ongoing litigation and the issues involved.  On successive days a quorum of the three supervisors, together with the solicitor, met separately and privately with representatives from the cement company, an opposing citizens’ group, and two adjoining townships where the company already had quarry operations.  Two months later, the cement company delivered a proposed settlement agreement to the Township’s solicitor just before the start of a regularly scheduled meeting of the supervisors. During the meeting, the solicitor read the entire settlement agreement proposal into the record and a spirited public comment and debate followed, ending in an early morning vote to accept the settlement agreement.  Contending that the four private information sessions were held for the purpose of making a decision on township business, since the information learned at the sessions assisted the supervisors in voting on the settlement agreement ultimately submitted, and that the supervisors knew at the time of the private sessions that they would be helpful in deciding on any potential settlement, a township citizen claimed that the four private sessions violated the Sunshine Act.

Discovery established that the “gatherings involving the neighboring townships were convened to learn how quarry operations affected those municipalities,” the gathering with the citizens group was held so that the supervisors could understand its environmental concerns involving issues such as water quality, blasting, and toxins being released into the environment,” and that the gathering with the cement company “was also fact-finding in nature,” where the supervisors asked questions that arose from information learned in the prior three gatherings. Some of the issues raised by those questions were ultimately addressed in the settlement agreement submitted and drafted by the cement company.

Observing that a “meeting” occurs for purposes of the Sunshine Act, and thus must be open to the public, only if the agency convenes it to deliberate agency business, Justice Saylor, writing for a unanimous Supreme Court, held that “[t]here is nothing in the [Sunshine] Act that expressly precludes private information gathering as a collective effort by members of an agency, including by a quorum.” What “the Act does proscribe is private “deliberations.” Deliberations for the purpose of making a decision occur “where the discussion consists of debate or discourse directed toward the exercise of such judgment,” such as where agency members “weigh the ‘pros and cons’ of the various options involved, or otherwise engage in comparisons of the different choices available to them as an aid in reaching a decision on the topic, even if the decision is ultimately reached at a later point.”  But “[g]atherings held solely for the purpose of collecting information or educating agency members about an issue do not fit this description, notwithstanding that the information may later assist the members in taking official action on the issue.”

The Court cautioned that where agencies choose to conduct lawful closed-door fact-finding sessions involving contested issues “skepticism among the general public is not unreasonable” and litigation involving Sunshine Act challenges should be expected, but concluded that “since the Act does not forbid agencies from proceeding in this manner, it is not our function as a reviewing court to impose a bright-line preclusive rule to that effect. Rather, the question of whether any such discussions were required to be open to the public depends on the facts of each case. Additionally, in view of the ‘presumption of regularity and legality that obtains in connection with proceedings of local agencies’… the challenger bears the burden to prove a violation.”

A copy of the decision is available here: Sunshine-Law.pdf

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