HARRISBURG — Pennsylvania lawmakers are scrambling to clarify language in the state’s open meetings law following a court decision they say could hurt the cause of accountability and transparency in government.
This month, state Rep. Robert Freeman (D., Northampton) introduced a bill to more sharply define when local governments can forgo the requirement in the law — known as the Sunshine Act — of publicizing meeting agendas at least 24 hours in advance.
The 24-hour rule, as it’s called, was amended into the Sunshine Act in 2021 by the legislature to increase transparency and enhance public participation in government. The idea was that the earlier the public knows about what the government is doing, the more opportunity people will have to weigh in on decisions that affect their lives.
The state Supreme Court was asked to weigh in on exceptions to that requirement, and in a 4-to-3 decision late last year, effectively ruled that the way the law is currently written allows for a more expansive reading of what qualifies as an exception.
The 2021 amendment says government agencies cannot take an official action (such as a vote) on an issue that wasn’t properly publicized 24 hours in advance, “except as provided in subsection (b), (c), (d) or (e).”
The word “or” played an outsized role in the high court’s ultimate decision.
The first three subsections in the current law encompass emergency matters; last-minute but “de minimis” (or insignificant) issues; and matters brought forth by a resident or taxpayer during the meeting that require either a referral to staff or an on-the-spot vote.
Subsection (e) is broader. It says a government body’s board can add a last-minute item to the agenda for discussion by majority vote.
The court fight came down to the word “or,” and what it meant.
The case stemmed from a vote by a school board in Lehigh County to add a last-minute vote to its agenda for approving a collective bargaining contract with its teachers' union that had been ratified earlier that day.
State Sen. Jarrett Coleman (R., Lehigh) sued, asserting that the vote violated the 24-hour rule, and the case landed before the high court.
Coleman argued, among other things, that the majority vote clause was not meant to be a standalone exception, and instead must be viewed as coming into play if one of the other exceptions applies — that the “or” is really more like an “and.” Any other interpretation of the law, Coleman added, circumvents the spirit and intention of the Sunshine Act.
The school district disagreed, arguing that under the plain language of the law, the word “or” renders the majority vote clause an independent, standalone exception.
A majority of the high court’s justices came down on the side of the school district.
“With this decision, we reaffirm that the text of an unambiguous statute, and not its alleged spirit, defines its purpose and meaning,” Justice Christine Donohue wrote for the majority.
Good-government activists quickly decried the ruling as bad for transparency and public participation in democracy. They believe it will open the door to allowing government agencies to take potentially thorny or controversial votes with no notice.
Coleman, too, intends to introduce legislation in the coming weeks to clarify the law.
Freeman’s bill in the state House would restrict exceptions to the first three provisions currently in the law (emergency business, de minimis matters, and last-minute, but insignificant issues raised by the public during a meeting).
It would then make the majority vote provision a procedural tactic, rather than a standalone exemption — that is, a government agency would have to agree by majority vote to add a last-minute item to the agenda that meets one of those three exceptions.
In an interview this week, Freeman said he is open to potentially adding another exception to the Sunshine Act for minor administrative business, after hearing from representatives of the association representing local township supervisors.
But his main concern is closing what now appears to be a very large loophole in the law.
“I don’t know if it was poor drafting or unintentional,” Freeman said of the current working in the law, “but it nullifies the whole intent of the act.”
He added: “The intent of the Sunshine Act is for the public to be aware of the business their government is taking up … and to maintain public trust through transparency.”