Summary
In Coleman v. Parkland Sch. Dist., 2023 Pa. Commw. LEXIS 187, at *10 (Commw. Ct. Nov. 8, 2023), a divided Commonwealth Court concluded that the recently enacted Section 712.1 of the Sunshine Act does not permit local government bodies to amend meeting agendas other than to add emergency or de minimis business matters.
Analysis
In Coleman, the school board posted an agenda the day before its scheduled meeting which did not identify approval of a collective bargaining agreement as an agenda item. However, on the day of the meeting, the district’s teachers approved a new collective bargaining agreement. Accordingly, on the date of the meeting, the school board amended its agenda pursuant to Section 712.1(e) of the Sunshine Act to authorize approval of the new collective bargaining agreement. An objecting resident claimed that this process violated the Sunshine Act and the Commonwealth Court agreed.
Enacted in 2021, Section 709(c.1) of the Sunshine Act mandates that agencies post their agendas on their website 24 hours before the time of the meeting:
Notification of agency business to be considered. — (1) In addition to any public notice required under this section, an agency shall provide the following notification of agency business to be considered at a meeting as follows: (i) If the agency has a publicly accessible Internet website, the agency shall post the agenda, which includes a listing of each matter of agency business that will be or may be the subject of deliberation or official action at the meeting, on the website no later than 24 hours in advance of the time of the convening of the meeting.
65 Pa.C.S. § 709(c.1)(1)(i)
Section 712.1 of the Sunshine Act, also enacted in 2021, provides that agencies cannot act on any item not included on the posted agenda, with certain exceptions:
(a) Official action. — Except as provided in subsection (b), (c), (d), or (e) an agency may not take official action on a matter of agency business at a meeting if the matter was not included in the notification required under section 709(c.1) (relating to public notice).
b) Emergency business. — An agency may take official action at a regularly scheduled meeting or an emergency meeting on a matter of agency business relating to a real or potential emergency involving a clear and present danger to life or property regardless of whether public notice was given for the meeting.
(c) Business arising within 24 hours before a meeting. — An agency may take official action on a matter of agency business that is not listed on a meeting agenda if:
(1) the matter arises or is brought to the attention of the agency within the 24-
hour period prior to the meeting; and
(2) the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement by the agency.
(d) Business arising during a meeting. — If, during the conduct of a meeting, a resident or taxpayer brings a matter of agency business that is not listed on the meeting agenda to the attention of the agency, the agency may take official action to refer the matter to staff, if applicable, for the purpose of researching the matter for inclusion on the agenda of a future meeting, or, if the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement, the agency may take official action on the matter.
(e) Changes to agenda. —
(1) Upon majority vote of the individuals present and voting during the conduct of a meeting, an agency may add a matter of agency business to the agenda. The reasons for the changes to the agenda shall be announced at the meeting before any vote is conducted to make the changes to the agenda. The agency may subsequently take official action on the matter added to the agenda. The agency shall post the amended agenda on the agency’s publicly accessible Internet website, if available, and at the agency’s principal office location no later than the first business day following the meeting at which the agenda was changed.
(f) Minutes. — If action is taken upon a matter of agency business added to the agenda under this section, the minutes of the meeting shall reflect the substance of the matter added, the vote on the addition[,] and the announced reasons for the addition.
65 Pa.C.S. § 712.1.
Since its enactment, Section 712.1 has been widely interpreted as providing four exceptions to the general prohibition against agency action on matters that do not appear on a timely posted pre-meeting agenda: 1) relating to emergency business; 2) relating business arising within 24 hours before the meeting; 3) relating to business arising during the meeting; and 4) items added at the meeting by majority vote. For example, the Office of Open Record’s website still states:
The agency can also add to the agenda at the meeting itself by majority vote. The reason for the change must be announced prior to any official action, including a vote, the amended agenda must be posted within 24 hours after the meeting, and the meeting minutes must reflect that the change was made.
See also Schmid v. Ringgold School District, No. 2022-1028, (C.P. Wash. Dec. 9, 2022) (Section 712.1 is properly read to include four circumstances where any agency may take official action on a matter that was not posted or distributed according to Section 709(c.1)).
In Coleman, the Commonwealth Court acknowledged that in Section 712.1(a), the “connector or clearly precedes the reference to Section 712.1(e) of the Sunshine Act, and . . . that or is ordinarily intended in statutes to be disjunctive.” The court acknowledged that there is no statement in Section 712.1 (b), (c), and/or (d) of the Sunshine Act requiring those exceptions be conditioned upon following the procedure set forth in subsection (e). Nevertheless, the court concluded that reading “(e)” reference in Section 712.1(a) of the Sunshine Act as disjunctive would lead to an absurd result because interpreting Section 712.1(e) of the Sunshine Act as a fourth exception would allow Section 712.1(e) of the Sunshine Act to swallow the entire rule that the agency shall post the agenda 24 hours in advance of a meeting.
Accordingly, the Coleman court concluded that Section 712.1 of the Sunshine Act offers only three exceptions, found in Section 712.1(b)-(d), to the general prohibition that allow agency action on matters not previously listed in the meeting agenda and that Section 712.1(e) is merely a procedural mechanism instructing the agency about how to go about publicly amending a meeting agenda when one of the three exceptions in Section 712.1 of the Sunshine Act applies.
What it Means
Unless and until Coleman is reversed, agencies cannot rely on Section 712.1(e) of the Sunshine Act as a “catch-all” exception to add any agenda item by a majority vote. Instead, agencies can only add an item to their agenda if that item:
- Relates to a real or potential emergency involving a clear and present danger to life or property; or
- Is brought to its attention within the 24-hour period prior to the meeting and the matter is de minimis in nature and does not involve the expenditure of funds or entering into any contract or agreement; or
- Is raised by a resident or taxpayer at the meeting and the matter is de minimis and does not involve the expenditure of funds or entering into any contract or agreement.
Agencies must then vote to add the item to the agenda, by majority vote, in accordance with Section 712.1(e) of the Sunshine Act which requires that the reason for the changes to the agenda be announced before any vote and that the amended agenda be posted the next business day. In addition, under Section 712.1(f), the minutes of the meeting shall reflect the substance of the matter added, the vote on the addition, and the announced reasons for the addition.
Section 713 of the Sunshine Act mandates that a challenge to any alleged violation of the Sunshine Act must be filed within 30 days from the date of the meeting at which the alleged violation occurred. Accordingly, any actions taken more than 30 days ago are not subject to challenge and agencies do not need to be worried about items they have added to the agenda over the past two years.
For actions on items added to an agenda and approved pursuant to section 712.1(e) within the past 30 days, agencies may want to consider ratifying those decisions at their next meeting. In Coleman, after the objecting resident sued the school district, the school district ratified its approval of the collective bargaining agreement at a later meeting. The Coleman court confirmed that Sunshine Act infractions can be cured by subsequent ratification at a public meeting and upheld the subsequent ratification.
