Advocates for transparency and public involvement in local government are sounding the alarm about a new Pennsylvania Supreme Court ruling.
They fear the court, in its split decision, has wrecked a Sunshine Law clause that sponsors wrote to prevent local boards, councils and commissions from taking formal action on issues that haven’t been declared for public review for at least 24 hours prior.
The court’s majority, in a decision issued Monday, said it’s just reading the words in the law requiring posting of pre-meeting agendas as any English teacher would.
“If the General Assembly intended something different from what is expressed in that plain text, it is free to amend the statute,” Justice Christine Donahue wrote for a 4-3 majority Monday.
But dissenters said that plain reading changes the spirit of the law so dramatically, the court should use its power to make a clarifying interpretation.
Otherwise, Justice David Wecht warned, “a governing body can pursue any unnoticed business it wants for no better reason than that a majority of that body feels like it.”
The dispute has its origins in an October 2021 teacher contract ratification vote by the Parkland school board in Lehigh County.
The contract was not listed on the agenda for that night’s meeting, but the board took it up anyway after a motion was made to add it to the docket.
School directors explained the teachers’ union had ratified the contract earlier in the day, and they felt some urgency to close the deal.
State Sen. Jarrett Coleman, R-Lehigh, filed suit, arguing the board’s action did not fit one of three exceptions to the law requiring 24-hour public notice of all potential business.
The exceptions are:
A public emergency where time is of the essence to prevent death, injury, or damage to property;Minor issues that have come up within 24 hours of the meeting that don’t involve policy decisions or public expenditures;Issues brought to the board by a resident or taxpayer during the meeting in question, which officials could elect to refer to staff for further work.
At issue in Coleman’s suit was whether a fourth exception, which allows in-meeting additions to an agenda with a majority vote by the board, can stand alone without the other three.
The court majority — Donahue was joined by justices Kevin Brobson, Kevin Dougherty and Sally Mundy — said yes.
Pennsylvania’s local government lobby called that a big win.
“This will allow for greater efficiency in township operations and save money and time on unnecessary additional advertisements and meetings,“ the Pennsylvania State Association of Township Supervisors said in a statement pushed to its members.
Government access advocates, on the other hand, are seeing red.
“It renders the agenda requirement largely meaningless because what the court has said is that agencies can add anything they want within that 24-hour window, regardless of the situation or appropriateness or the circumstances, as long as they vote to do it at the public meeting,” said Melissa Melewsky, counsel for the Pennsylvania NewsMedia Association.
“That defeats the purpose of providing advance notice on the agenda in the first place. It’s a significant problem for Pennsylvanians. It’s an invitation for abuse, and Pennsylvanians will suffer as a result.”
Coleman, the state senator who challenged the Parkland vote, agreed with Melewsky and said he accepts Donahue’s invitation to rewrite the law to strengthen the public notice provision.
The consequences of doing nothing, he added, are too great.
“I am absolutely concerned about how this decision will undermine the spirit of the Sunshine Law,” Coleman said, predicting the ruling “will allow municipalities to approve warehouses and data centers in our backyards without public notice.
“The Supreme Court has opened Pandora’s Box. The public won’t know what’s coming until it’s too late.”
It could be a simple fix.
Wecht, in his dissent, held that the obvious intent of the Sunshine Act is to have the first three exceptions, with any qualifying changes to an agenda considered separately by the board before they actually take up the new business.
That is also the way most entities have operated in the two years since the state’s Commonwealth Court agreed with Coleman’s initial suit, Melewsky said.
Open government advocates are concerned that they now have to win that fight all over again.
“I think it could be potentially a very simple fix,” Melewsky said Tuesday. “Getting it through both houses [in the Legislature] and across the governor’s desk is another issue.”
One sign of encouragement?
The state Senate’s majority Republican caucus issued a brief in support of Coleman’s position in the Supreme Court case.
PennLive’s efforts to reach Senate leadership for their comments on the case were not successful by presstime for this report.