PNA Legal: Specific nature of executive session must be announced
From the PNA Legal Hotline
By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association
Q: A borough council routinely holds executive sessions and then announces a generic, one-word reason for holding the private discussion such as “litigation.” Doesn’t the borough council have to provide more than this in describing an executive session?
A: Yes. The Sunshine Act has been interpreted to require more than a one-word reason for holding an executive session.
The Sunshine Act provides a limited number of circumstances in which an agency can deliberate privately, including personnel matters, collective bargaining, the purchase or lease of real estate, or to discuss pending or identifiable litigation. However, when an agency holds an executive session, it is required to publicly announce the reason for holding the private discussion.
Section 708(b) of the Sunshine Act requires that the reason for holding the executive session be announced at the open meeting occurring immediately prior or subsequent to the executive session. The Commonwealth Court has further interpreted this provision to require more than a one-word explanation for holding the executive session. In The Reading Eagle Co. v. City of Reading, 627 A.2d 305 (Pa. Cmwlth. 1993), the Commonwealth Court expressly held that agencies’ reasons for executive session “must be specific, indicating a real, discrete matter that is best addressed in private.” The Court expressly rejected the city’s argument that citing the words of the statute such as “litigation” or “personnel” is sufficient as a matter of law. Simply put, one-word explanations for an executive session do not comply with the Sunshine Act.
The Court also confirmed that when an agency relies on the litigation exception, the agency must announce the names of the parties, the docket number of the case and the court in which a lawsuit is filed when discussing pending litigation. When discussing threatened litigation, agencies must, at a minimum, announce the nature of the complaint. There is no guidance from the appellate courts on how much information is required when other types of executive sessions are announced, but it is clear that the reason must be genuine and meaningful, and one the citizen can understand.
