Last updated January 7, 2021, at 9:32 a.m.
This advisory relates to all meetings governed by the Sunshine Act; it is not limited to emergency meetings.
As a starting point, it’s key for agencies to remember that transparency builds trust, especially in times of crisis.
Chapter 57, Subchapter E, of Act 15 contains provisions regarding local government agency meetings during the COVID-19 emergency. Subchapter E is temporary and its provisions are limited to the duration of the COVID-19 emergency.
Some of the key provisions include:
- Clarifying that local government agencies are authorized to hold remote meetings during the emergency. A physical quorum (i.e., a quorum all in the same room) is not needed. However, there must be a quorum participating remotely.
- “To the extent practicable” local government agencies must provide advance notice of all remote meetings including date, time, technology, and how the public can participate. Such notice must be posted on the agency’s website, in a newspaper of general circulation, or both. The OOR also encourages agencies to use social media, email newsletters, and any other method it has available to provide notice.
- “To the extent practicable,” local government agencies must provide for public participation directly through the teleconferencing or videoconferencing system used to hold the meeting, via email and/or via postal mail. (Ideally, agencies will accommodate all three methods and possibly others.)
- NOTE: “Practicable” is a much stronger word than “practical.” (Merriam-Webster defines “practicable” as “capable of being put into practice or of being done or accomplished; feasible.” In other words, unless it is actually impossible to do so, it must be done. This means that advance notice and public participation are essentially required.)
- If an emergency meeting (i.e., a meeting called without public notice) related to COVID-19 takes places, the minutes of that emergency meeting must be made available within 20 days.
Note that the above provisions of Act 15 may not apply to school entities, and the OOR encourages school entities to consult their solicitors on this point. (See McGrath v. Board of School Directors of the City of Scranton and School District of the City of Scranton, Lackawanna County CCP No. 20 CV 3698.) This does not mean that school entities cannot hold remote meetings — they can, subject to the Sunshine Act and other relevant laws. Any school entity taking that step must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act. That method should be clearly explained to the public in advance of and during the meeting.
Act 15 includes other provisions relevant to local government agencies and school entities, and the OOR encourages consultation with solicitors regarding the entire law.
In addition to the provisions of Act 15, the Office of Open Records strongly recommends that any agency holding a remote meeting record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is easily accessible by the public.
To the extent that agenda items can be delayed until in-person meetings can resume, it’s a good idea to do so.
NOTE: On June 3, Gov. Wolf extended the emergency declaration for an additional 90 days. Subsequently, the General Assembly passed HR 836 to terminate the emergency declaration. The issue is now pending before the Commonwealth Court and the Supreme Court of Pennsylvania. The view of the OOR is that the provisions of Act 15 which are limited to the duration of the COVID-19 emergency remain in effect while this case is pending in court.
The Pennsylvania District Attorneys Association has also issued guidance related to the Sunshine Act, which can be read here (PDF).
If and when events warrant any update to this advice, it will be posted here.
Agencies, solicitors, and members of the public with any questions are welcome to contact the OOR. Using the OOR contact form is the best way to reach us at this time, as we are all working remotely.