Posted by: Patricia Salkin | December 24, 2013

PA Sup. Court Holds Meetings for Purposes of Information and Not Deliberation Did Not Violate Sunshine Law Where the Public Was Not Permitted to Attend

Richmond Township, Pennsylvania was engaged in litigation with the Lehigh Cement Company (“Lehigh Cement”), and the East Penn Valley Residents Group (“Citizens Group”) over the possible expansion of Lehigh Cement’s limestone quarry into the Township. At a public meeting, the Township’s Board of Supervisors (“Board”) announced that a series of gatherings with interested parties would take place to obtain information about relevant matters, such as the nature of quarrying and the Citizens Group’s environmental concerns. These gatherings were referred to as “executive sessions” of the Board and that they would be closed to the public as permitted under the Sunshine Act. Four gatherings took place with a quorum of the Board in attendance at each: two with representatives of adjacent municipalities that had experience dealing with quarries; one with the Citizens Group and its attorney; and one with Lehigh Cement and its attorneys. Thereafter, settlement discussions with Lehigh Cement were held with Lehigh Cement submitting a proposed settlement agreement to the Township before the start of the following Board’s regularly monthly public meeting. At the meeting, the proposed agreement was read and a public debate ensued. James M. Smith (“Smith”), a resident of the Township commenced an action against the township and the township’s board of supervisors (collectively, the “Township Parties”).

Smith alleged that, on each of the four gatherings, a quorum of the Board discussed and deliberated Township business, and that they were closed to the public in violation of the Sunshine Act, which required that “official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public” Smith requested a declaratory judgment that the Board violated the Sunshine Act, a permanent injunction to force the Board to comply with the Sunshine Act in the future, and an order invalidating “all action taken during, or as a result of discussions held at such meetings.” The Township Parties asserted that the gatherings were held solely to obtain information, and did not involve any agency business, official action, or discussion among Supervisors.
It was established that the gatherings involving the neighboring townships were convened to learn how quarry operations affected those and to determine whether means exist to mitigate such impacts. The gathering with the Citizens Group was held so that the Supervisors could understand its environmental concerns and that the gathering with Lehigh Cement was fact-finding in nature.

In his deposition, Smith stated that he had no knowledge concerning whether the Supervisors voted during any of the four gatherings, but he theorized that, before convening them, the Supervisors had decided to settle the litigation and had scheduled them to develop terms of a settlement. Smith admitted that he was unaware of any “official actions” that might have occurred that could have bound the Township to specific settlement terms. Smith further conceded that the official vote to accept the proposed agreement took place at an open meeting after the public had had time to comment.

The common pleas court granted the Township Parties’ motion and entered judgment in favor of the Township Parties. The Commonwealth Court affirmed, explaining that the Act defines “deliberation” as “the discussion of agency business held for the purpose of making a decision.”

Smith argued that the Board deliberated at the gatherings because it obtained information which guided its evaluation and vote on a settlement with Lehigh Cement, and that the purpose of the meetings was to “make a decision.” However, the court stated that, in prior cases, it had established that fact-finding need not take place in public, and that public officials have an affirmative duty to be fully informed and may “study, investigate, discuss and argue problems and issues” outside the confines of public meetings. Also, that “there is a substantial difference between discussion and deliberation,” and that agency members may informally discuss and debate proposals among themselves without violating the Act. Moreover the court stated that the law does not require the press and public to be present at every agency meeting. Case law has drawn a line around the meetings of public officials where a specific proposal or petition is discussed. Meetings at which such specific proposals or petitions are discussed may require the presence of the public. Here, there was no proposal available for discussion at any of the four meetings.
Finally, the court observed that Sunshine Act cases tend to be highly fact-sensitive, and that the plaintiff bears the burden of proving that deliberations took place at a private meeting. The court concluded that Smith had failed to carry his burden.

Appeal was allowed on a limited basis to examine whether the Sunshine Act’s definition of “deliberations” was implicated. The court held that there was nothing in the Act that expressly precluded private information gathering as a collective effort by members of an agency, including by a quorum. What the Act did proscribe was private “deliberations.” The Act defines “deliberation” in terms of discussion of agency business — namely, the framing, preparation, or enactment of laws, policies, or regulations, or the creation of liability by contract or otherwise, but only where the discussion is “held for the purpose of making a decision.” The record supported the conclusion that the gatherings were held with the goal of gaining information that could prove useful to the Township in negotiating the terms of a settlement with regard to the underlying litigation. Moreover, skepticism among the general public is not unreasonable, as suspicions may naturally arise that the conversations are aimed at deliberating agency business in private. In such cases, the agency incurs the risk that citizens will challenge the propriety of its actions, and consequently, that it will have to defend those actions in the context of legal proceedings. The court affirmed the Commonwealth Court’s decision that the four closed-door gatherings did not violate the Act because they were held for informational purposes only and did not involve deliberations.

Smith v Twp. of Richmond, 2013 WL 6598713 (Pa 12/17/2013)

The opinion can be accessed here:

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