From the PNA Legal Hotline

By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: A school district voted last night to adopt a drug testing policy for students. The policy was never discussed at a public meeting. A committee that included one board member, parents and tax payers met privately several times over the summer to discuss the policy. I was told the committee meetings weren’t public, because the board didn’t want to stifle discussion or deter participation from private citizens. The board voted to accept the recommendations of the committee and said nothing more before approving the new policy. Is this OK?

A: No, PNA takes the position that this type of committee meeting should be public pursuant to the Sunshine Act.

The general rule of the Sunshine Act is: anytime a quorum of an agency deliberates agency business, it must do so at a public meeting unless an exception applies. The Sunshine Act defines “agency” as the body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business. A committee authorized to render advice or take official action is an agency subject to the Sunshine Act and as such, must follow all the law’s
requirements.

First and foremost is the general rule: anytime a quorum deliberates agency business, it must do so at public meeting unless an exception applies.

Some agencies cite Ristau v. Casey, 647 A.2d 642 (Pa. Commw. Ct. 1994), FOP Lodge No. 5. v. City of Philadelphia 500 A.2d 900 (Pa. Commw. Ct. 1985), app. dismissed, 518 A.2d 263 (Pa. 1986) or Mazur v. Washington County Redevelopment Authority, 900 A.2d 1024 (Pa. Commw. Ct. 2006) as support for the argument that advisory committees are not agencies subject to the Sunshine Act. This reading ignores the plain language of the statute, however, which makes it clear that committees that “render advice” to the main body are, themselves, agencies. In addition, these cases are distinguishable from the facts presented above.

Moreover, the PNA would argue that cases such as the one presented in the question above -- where a Sunshine Act agency created a committee for the purpose of rendering advice on a matter of agency business – clearly triggers the plain language and intent of the law: committees that render advice are agencies subject to the law and must deliberate publicly. If advisory committees are not treated thusly, the Sunshine Act is rendered meaningless as it pertains to committees and the public is completely cut off from a critical stage of policy development.

The creation of a drug testing policy would constitute deliberation of agency business under the Sunshine Act and should have been discussed at a public meeting if a quorum of the committee was present. The committee should have also followed the Sunshine Act’s other requirements including proper public notice of the meetings, an opportunity for public comment at each meeting and keeping minutes, to name a few.