Collectively, Pennsylvania has more than 2,500 counties, townships, boroughs and cities, each of which is required to comply with Pennsylvania’s Sunshine Act (the “Act”). The Act requires agencies to deliberate and take official action on agency business in an open and public meeting. An “agency” is any state or local government body and all sub-units appointed by that body that perform an essential government function and exercises authority to take official action or render advice. It can include boards, councils, authorities, commissions and committees.
With calls to stay home and avoid gathering in public as a result of COVID-19, Pennsylvania’s agencies are left wondering how they can continue to safely serve their constituencies while still complying with the public meeting requirements contained in the Act. This is not an issue unique to Pennsylvania and, in fact, states nation-wide have taken various measurers to address and alter requirements contained in their respective open meeting laws. For example, governors in Texas, Illinois, Louisiana, Massachusetts, Rhode Island, Michigan, Florida and Nebraska have all recently issued executive orders and proclamations that permit public bodies to meet virtually amid the spread of COVID-19.
In Pennsylvania, the Office of Open Records has issued guidance (the “Guidance”) to agencies on best practices for compliance with the Act in light of COVID-19. According to this Guidance, public meetings should generally be held at public buildings with open public participation. However, if an official emergency declaration prevents that from happening, a meeting via teleconference, webinar, or other electronic method that allows for two-way communication is permissible in most circumstances. According to the Office of Open Records, any agency taking that step must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Act. Further, the Office of Open Records strongly recommends that any agency holding such a meeting should record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is available to the public.
In arriving at its conclusion, the Office of Open Records is relying on 35 Pa.C.S. § 7501(d), which allows agencies under a “declaration of disaster emergency” to suspend the need to comply with certain “formal requirements.” In context, any such suspensions must be related to the emergency.
In addition to the Act, Pennsylvania municipalities are subject to general governance laws, e.g., the Borough Code, the First Class Township Code, etc., that limit the ability of municipalities to take official actions at remotely-held public meetings. To provide additional clarity to municipalities on their ability to take official action at such meetings, the Pennsylvania General Assembly is considering a proposal, House Bill 1564, which would allow municipalities to hold meetings remotely when the Governor has made a declaration of disaster or emergency. Among other things, HB 1564 includes the following requirements:
- All members of the municipal governing body must be able to speak to and hear the comments and votes.
- To the extent possible, the municipality must allow for public participation.
- The municipality must post notice of the meeting on its publicly accessible Internet website and, except where emergency circumstances dictate otherwise, via a newspaper of general circulation.
- The meeting must be livestreamed, recorded, or at a minimum, the draft minutes be made available within 48 hours of the meeting’s conclusion.
HB 1564 received third consideration and final passage (on a unanimous vote) by the House of Representatives on March 25, 2020. The bill has not yet been acted on by the Senate.
For any questions regarding the guidance issued by the Office of Open Records or HB 1564, please contact a member of the McNees Public Finance & Government Services Group or a member of the McNees Real Estate Group.