The Sunshine Act and the Coronavirus (COVID-19)

Office of Open Records LogoThe Office of Open Records has issued the following Advisory regarding Pennsylvania’s Sunshine Act and the coronavirus (COVID-19).

Last updated June 12 at 6:12 p.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.

Act 15 of 2020 (formerly Senate Bill 841) went into effect on April 20. (Note: The Sunshine Act still applies.)

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 do not apply to school entities. (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.

Here’s the March 6 disaster emergency declaration signed by Governor Wolf and information about the declaration.

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.

Information about the coronavirus (COVID-19) is available from the Pennsylvania Department of Health and the Centers for Disease Control and Prevention.

24 thoughts on “The Sunshine Act and the Coronavirus (COVID-19)

  1. This does not provide specific enough advice for our borough. Get off the stick and make some actionable recommendations.

    John f yerman iii

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    • Hi John, thank you for the comment. In light of the fact that this is an unusual situation (to say the least), and with approximately 6,000 agencies across Pennsylvania potentially affected in some way, our advice here had to be general. I’m sorry it didn’t address your situation, but please contact the Office of Open Records directly with your specific questions. Email is best, openrecords@pa.gov, and the telephone number is 717-346-9903. We’ll certainly do everything we can to assist. -Erik Arneson

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      • So I’m sure the question on everyone’s mind right now (June 11th, 2020) is: If we continue to hold remote meetings, will we be in violation of the sunshine law? Or is this still allowed while all of this goes through the court system?

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      • James, thanks for the great question. The Sunshine Act Advisory has been updated to add: “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. 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.” Please let us know if you have any additional questions.

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    • Daniel, thank you for the question. 35 Pa.C.S. 7501(d) allows agencies under a “declaration of disaster emergency” (which the entire state of Pennsylvania currently is) to suspend the need to comply with certain laws and requirements. In context, any such suspensions must be related to the emergency. In other words, if an agency is unable to hold a meeting in such a way that the public can participate, and that agency must address issues related to the emergency declaration (in this case, the coronavirus), the position of the OOR is that the agency may do so. That said, the agency must keep minutes of that meeting and the minutes will be public. Also, if the agency has any method by which to record the meeting (audio or video, including for example a cell phone), the OOR strongly encourages the agency to do so, and to make the recording available to the public. And at the next public meeting, the agency should take time to explain what actions were taken and why they were taken, and to allow the public to comment.

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      • Thanks for the quick response. So am I inferring correctly a transit agency could have a meeting to address issues related to the coronavirus, but that does not mean they could have a closed-door meeting to address their previously scheduled agenda (that is non-coronavirus related matters)?

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      • That’s correct. To the greatest extent possible, an agency should not invoke the provisions of 35 Pa.C.S. 7501(d) to conduct ordinary business at a meeting which excludes the public. In the vast majority of cases, no harm would come by delaying the ordinary business to the next public meeting.

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  2. I disagree on the “no harm for a delay”. Ive been at this for 6 years and the borough needs decisions by council at every meeting.

    Bills need to be paid, purchases authorized, actions taken in citizen complaints, actions taken to enforce the laws, land development approvals are on a timeline. It is very naive to think it can all just wait for 2-3 months.

    It is dangerous to hold public meetings.

    Please give us an approach that works a little better. What you are requiring will cause damage that will not be resolvable.

    John y.

    Like

    • John Y
      Under an emergency declaration, those actions like paying bills can be done without the council meeting. Land development projects have no right of a normal timeline. If my attorney or consultant engineer is not able to work because they are not an essential business, then the land development project is lost in the time.

      Like

    • As our advice indicates, if an agency can provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act, holding meetings which are physically closed to the public (including meetings at which the agency members participate remotely via, for example, teleconference) is an acceptable alternative during a time of emergency declaration. At least some agencies are allowing public comment by email, posting the email address and meeting agenda online prior to the meeting. That would appear to be a reasonable approach.

      The purpose of the OOR’s guidance is to assist agencies in meeting their statutory obligations during a public health crisis unprecedented in modern times. While the OOR cannot predict how a court would rule on a challenge to any agency’s compliance with the Sunshine Act during this crisis, our guidance suggests that agencies take reasonable steps to ensure that the public has notice of proposed agency meetings and a reasonable opportunity to comment. Obviously, each agency may have different capabilities to meet these obligations and, as such, should consult their solicitor for the course of action best suited to their unique situation.

      Put another way, this is a very fluid situation that does not lend itself to a one-size-fits-all approach, and agencies should make their best efforts to ensure they meet their obligations under the Sunshine Act bearing in mind that transparency builds trust, particularly in times of crisis.

      Any agency with specific questions not addressed here is welcome to contact the OOR via email at openrecords@pa.gov.

      Like

      • There will be a need for a clarification of “reasonable” – for example, is email and comments on meetings streamed online going to be considered reasonable access for public participation because these methods require internet access?

        Like

      • It’s a case-by-case situation, of course, and while one of the Office of Open Records’ duties is to provide training on the Sunshine Act, we do not adjudicate any issues under the Sunshine Act — that’s left to the courts. That said, we are encouraging agencies to use as many options as they can with regard to public participation.

        At least some of the statewide organizations representing local government agencies are encouraging their members to postpone action on any non-essential items of business, which also makes good sense.

        As to your specific example, as agencies work to balance the need to be transparent pursuant to the Sunshine Act with the need to conduct essential public business, I believe that providing the opportunity to comment via email — particularly if the agenda is posted online in advance and public comment can be made both before and during the meeting — is a good way to proceed. It’s obviously not ideal, but given the practical reality of the limitations the coronavirus pandemic puts on public meetings, it is a solid approach.

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  8. If a township is having meetings over Zoom, would that be enough to be a true open meeting to take action on something as big as selling a sewer system? The bid would not expire until the earliest May or even June? There is no rush with a time line not to expire.

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    • Thank you for the question. A couple of points. First, we’re encouraging agencies to delay all business that can be delayed — but of course a lot of factors go into making that decision. Second, public participation is a requirement under the Sunshine Act even as meetings are being held remotely. The Office of Open Records advisory and the Pennsylvania District Attorneys Association guidance are both clear on that point. Public participation is certainly possible over Zoom; many agencies are doing so. That said, simply holding a meeting on Zoom does not in and of itself guarantee public participation. So the platform (e.g., Zoom) is in many ways less important than how the platform is used. I hope this is useful.

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      • We are using zoom for borough council meetings. Public participation has been consistent with what we saw with live meetings. We used the recording feature so we can show the participation. We also accept emails up until 3 hours before the meeting (none so far). The meetings are running longer by 20%, but I have been running phone meetings for 15 years in the private sector. Ensuring everyone participates is a skill that we can all learn.

        Liked by 1 person

  9. Hello, I can say that the open Records Office has always been very helpful to me in answering all my questions and supplying me with the necessary information I need. In my opinion this is one of the best government offices that I had to deal with. I know some will disagree with this comment. I only had one bad experience with the OOR. It involved a government official working on the clock. This official was sending text messages during the town meeting. This official was being paid by the citizens to send text messages which I consider are now public documents. I was denied the records by the town and also lost the Appeal with the OOR. This was all caught on video also. I will continue to pursue this in a future when I see this being done. Other than this, I think you people do an outstanding job thank you. Joe Kowalchick

    Like

    • If the text messages were sent to less than a quorum of the governing body then they’re not covered by the rule that says deliberations are public and subject to sunshine act. Just because someone’s on the clock doesn’t mean you get to look at their phone. Are you going to want to see his browsing history next?

      Like

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