Official Action Taken on Added Agenda Items Without the Opportunity for Public Comment Violated the Sunshine Act

Tucker Arensberg, P.C.
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Tucker Arensberg, P.C.

Mid-Mon Valley Publishing Company, LLC, d/b/a Mon Valley Independent and Tina O’Dell v. City of Monessen, a Third-Class City, and Matt Shorraw, as Mayor, No. 581 of 2020 (Westmoreland County Common Pleas Court, December 11, 2020).  Action taken by a city council on items added to a meeting agenda without providing the opportunity for prior public comment violated the Sunshine Act, but was not invalidated due to ratification at a subsequent public meeting.

BACKGROUND

Suit was brought by the Mon Valley Independent newspaper and a resident of the City of Monessen in Westmoreland County Common Pleas Court against both the City and its Mayor for actions taken at a reorganization meeting held on January 6, 2020.  The Agenda provided for public comment during the meeting on Agenda items only, with comment on non-Agenda items allowed only immediately prior to adjournment.  Following public comment at the beginning of the meeting, the Mayor, who is also a voting member of Council under the Third-Class City Code, moved to fire the City Solicitor.  The Motion was promptly seconded and passed.  The majority of Council then passed a Motion to hire a replacement.  Council went on to remove the City Administrator and appoint a replacement, as well as to pass Motions limiting access to City cameras and rescinding an appointment to the City Sewage Authority and advertising for potential appointees.  None of these items had been listed on the Agenda, and no public comment on them was received prior to these official actions.  All of these decisions were ratified at a subsequent public voting meeting, in which public comment was offered on each item.

DISCUSSION

The Court determined that all of the actions taken at the January 6, 2020 Reorganization Meeting were prima facie violations of Pennsylvania Sunshine Act.  Although public comment was permitted at the beginning of the meeting on the Agenda, the subjects of these Motions were not listed.  Therefore, the required opportunity for public comment was not allowed.  To the contrary, the Court noted the Motions were “brought up abruptly and voted upon immediately with…absolutely no opportunity for public comment prior to the official action of voting.”  The Sunshine Act permits a Court to enter an Order prohibiting challenged actions from taking effect until a judicial determination of legality is made.  It also empowers a Court to exercise its discretion to invalidate actions that violate the Sunshine Act, 65 Pa. C.S.A. §713.  In this case, the Court decided not to rescind the actions taken by Council, because they were properly ratified following appropriate opportunities for public comment at a subsequent meeting.  Nevertheless, the Court entered Judgment in favor of the newspaper and the resident, holding that the Council had acted illegally at the Reorganization Meeting on January 6, 2020 because the public was not afforded any opportunity to comment on any of the Motions concerning the Solicitor, Administrator, access to City cameras or rescission of the appointment to the Sewage Authority vacancy.  The Court also ordered the Mayor, as well as all of the members to Council, to undergo training on the Sunshine Act by the Pennsylvania Office of Open Records within thirty (30) days of the Court’s Order, even though the members of Council were not individual Defendants in the case. 

The Sunshine Act permits a Court to award reasonable attorneys’ fees and costs of litigation when officials “willfully or with wanton disregard” violate the Sunshine Act. 65 Pa. C.S.A. §714.1.  Fortunately for the Defendants, the Court attributed their violations to a “mere lack of knowledge or ignorance,” so the City and Mayor, did not have to pay the newspaper and resident’s attorneys’ fees and costs.  Similarly, the Sunshine Act permits a Court to impose fines on officials who act with the “intent and purpose” of violating the Act.  Again, the Court determined that fines were not appropriate, because the violations were not intentional. 

PRACTICAL ADVICE

1.  Courts will enforce the mandate of the Sunshine Act to allow the public to comment before any official action.  The best practice is for officials who anticipate debate or action on a matter that is not listed on the Agenda is to move to amend the Agenda, so that the public and officials are on notice that official action may take place and are given a full opportunity to comment. 

2.  Courts will generally not invalidate an action adopted in violation of the Sunshine Act, when that the action is ratified at a subsequent meeting that meets all of the requirements of the Sunshine Act.  For this reason, when violations inadvertently occur, a sound course of action is to ratify any action in conformity with Sunshine Act requirements.

3.  Although the Defendants, in this case were spared paying attorneys’ fees, costs of litigation or fines, public officials must be vigilant to avoid violating the Sunshine Act.  Other Courts might not be as understanding where important issues are raised and voted on without the requisite public input.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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