Editor’s note: Erin Galbally was one of the lawyers who represented Philadelphia Newspapers in Philadelphia Newspapers LLC v. Nutter.
Pennsylvania’s Sunshine Act was designed to ensure transparency in government. These days, however, that laudable goal remains far from reality in Philadelphia. The act, also known as the Open Meetings Law, requires that governmental agencies provide public notice prior to official meetings and that such meetings be open to the public. More specifically, the act mandates, with few exceptions, that meetings involving “official action” or “deliberation” occur in public and not behind closed-doors.
The General Assembly defined “official action” and “deliberation” very broadly. Official actions include when an agency makes a recommendation based on a statute, ordinance or executive order, or when a governmental agency meets to establish agency policy, makes a decision on agency business or votes on a motion, proposal or resolution. “Deliberation” encompasses discussions of agency business that ultimately lead to decision making. It is hard to imagine a meeting of a government agency that would not feature “official action” or “deliberation.” And, indeed, the Sunshine Act seemingly should force government entities to hold open meetings under most circumstances. Which brings us to Philadelphia’s budget crisis.
Last fall, facing a projected budget deficit of a billon dollars or more, Mayor Michael A. Nutter and City Council engaged in several meetings to discuss possible solutions. They apparently did not want the public to know about or to meddle with these critical discussions, so the meetings were held behind closed doors. Against this backdrop, the publisher of The Philadelphia Inquirer and Philadelphia Daily News filed suit against the mayor and City Council President Anna Verna in an effort to gain access to one such meeting. In Philadelphia Newspapers LLC v. Nutter , the newspapers sought an injunction to open the meeting, relying on the seemingly clear mandates of the Sunshine Act. The effort failed, because of a Catch-22 built into the act’s enforcement logic, specifically that a challenger must prove what is taking place at a meeting from which he has been excluded.
Challengers usually cannot prove what is occurring in a closed-door meeting. The act as written, therefore, can only practically be enforced after a violation has occurred. This was the position taken by Philadelphia Common Pleas Judge Gary F. DeVito, who noted in his decision, “the remedy provided [by the Act] is remedial, not prospective.” According to DeVito, a court cannot order access to a meeting but simply attempt to remediate the harm caused by an illegally closed meeting (assuming, of course, the challenger could somehow prove what happened at the meeting from which he was excluded). Such a remedy, presumably, would be to force the mayor and council to meet again. By the time of such a “remedy,” however, the harm (secret deliberation) is done. In this instance, shortly after the challenged closed-door budget meeting, Nutter detailed on television a wide array of agreed upon projected cuts and plans to introduce seven pieces of legislation. What was lost — the public’s right to be present when critical issues of public concern were deliberated — is precisely what the Sunshine Act allegedly protects.
This flaw in the Sunshine Act is neither new nor limited to Philadelphia County. Roughly 20 years earlier, in Conners v. West Greene School District , the Pennsylvania Commonwealth Court rejected the argument that budget discussions between school board members during a break in an official meeting were prohibited under the act. The suit was sparked after the school board passed a motion to cut certain programs. The same motion was initially defeated earlier in the meeting. Passage occurred following a recess where members discussed the proposal without a public audience.
In Conners , the plaintiff relied on a newspaper article in making her Sunshine Act claim. The court rejected the use of the article as hearsay and indicated that the plaintiff’s lack of “personnel knowledge” as to the exact nature of the conversations between board members was sufficient to defeat her argument. Because plaintiff was not privy to the private discussions, she could not prove that the Sunshine Act was actually violated. Yet if plaintiff were present during those very discussions, then compliance with the Sunshine Act would have presumably been guaranteed. Conners provides yet another example of how enforcement poses a frustrating conundrum.
Even where a court finds a Sunshine Act violation, the remedy will often leave much to be desired. The act proscribes that any action taken at a meeting in violation will be deemed void. However, that same violation can be cured if the action is ratified again at a later public meeting. This easy ability to subsequently cure any violation does little to encourage officials from engaging in the decision making process in public. It also provides the courts with little authority to impose meaningful sanction.
While Philadelphia Newspapers and Conners exemplify problems with the act, there are other aspects that appear to be working. For instance, the act dictates that public notice of scheduled meetings must be provided at least three days in advance. The notice must include information detailing the location, date and time of the meeting. The act also requires that all votes on any resolution or rule must occur at a public meeting. Minutes must be kept of all public meetings. Finally, and significantly, prior to official action, members of the public must be given an opportunity to comment.
The Pennsylvania Legislature must take affirmative steps to ensure that the Sunshine Act truly serves the purpose for which it was intended. There are a host of possibilities. Judges could be given the authority to hold in camera sessions prior to challenged meetings, where government officials can demonstrate that the proposed agenda will not violate the act. Judges could be given the ability to order prospective relief, such as an injunction, to stop meetings. Finally, judges could be empowered to impose real sanctions, not just order a subsequent public meeting. These changes would transform the Sunshine Act from mere words on a page, to an actual, and enforceable, mandate for open government. •
Erin Galbally, an associate at Dilworth Paxson, is a member of the media group. She received her law degree from Villanova and completed her undergraduate studies at the University of Pennsylvania. She holds a M.S. from Columbia University’s Graduate School of Journalism. She can be reached at 215-575-7293 or firstname.lastname@example.org .
David M. Laigaie, a partner at the firm, heads the corporate investigations and white-collar group. His areas of practice include health care fraud, securities fraud, tax fraud, export violations, pharmaceutical marketing fraud, municipal corruption, defense procurement fraud and public finance fraud. He regularly conducts internal corporate investigations. He can be reached at 215-575-7168 or email@example.com .