Discussing change orders on a construction project is not a legitimate use of the executive session. You should challenge this by writing a letter to the board and its solicitor, asking them to cite what provision of the Sunshine Act permits them to discuss these matters outside of the public eye.

It would be considered a negotiation, which can only deal with employee labor union contracts. It cannot be considered litigation unless there is some real, concrete lawsuit being considered.

In any case, the law requires that executive sessions be publicly announced, and a specific reason stated.

Other than trying to hold them accountable on this through public pressure, there is no easy way to find out what goes on at an executive session. It is the most abused provision in the Sunshine Act.

Good luck with your Right to Know request. Maybe it will shed some light for you.

Yep, it's a pretty familiar story, I'm afraid.

The Sunshine Act lets the board assume an almost unassailable "So, make me!" position. There is no easy answer on fighting this ... Relentless public pressure to hold them accountable for following the letter of the law is the best approach, and can work ... As long as you don't let them wear you down.

Otherwise, the only other option you have is to file a complaint in court, I'm afraid.

And, you should write you state representative and senator, asking them to work on improving the Sunshine Act to ensure government transparency and accountability.

It is only through citizen voices and action that things will change. Legislators really DO listen to constituents.

Well, you are not going to resolve this in a back-and-forth with them, as they are relying (as all boards do) on the advice of their solicitor.

But citing the "legal matters" exemption based solely on the chance that a dispute could arise at a later date is not a proper use of this exemption.

The state's own "Open Meetings" booklet says the following:

"Agencies may hold executive sessions to consult with their attorney regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed."

The state's courts have held that if there are, indeed, "identifiable complaints" or threatened litigation, the agency must state the general nature of the complaint with some specificity when announcing that an executive session will take place or has just taken place.

"The reason stated by the agency must be specific, indicating a real, discrete matter that is best addressed in private."

This "legal matters" or "litigation" exemption is often misused by boards. Unfortunately, there is not much you can do to force their hand, other than to continue to raise the issue and make sure they announce specific reasons for holding executive sessions, beyond just saying "legal matters."

There is, of course, a lot of gray area here. All you can really do is try to get them to be as specific as possible, citing the requirements of the law.

You may wish to read (and use, if necessary) the state's "Open Meetings" booklet, which you can download here.

Dear Ms. Wilhelm,

            Please be advised that I have been forwarded your July 26, 2010 email to Mark Scappe in regard to an issue concerning change orders and potential liability of the District’s architect, Eckles, that occurred at the District’s last public meeting.  In that public meeting, Mr. Testa raised a question as to potential liability of the District’s architect in regard to certain change orders.  Mr. Scappe, upon my advice, indicated to Mr. Testa that if you wish to discuss the specific issue of liability for certain change orders that that should be done in executive session since it would involve potential litigaton.  The Sunshine Act, 65 Pa. C.S.A. §701 et seq., §8, Subparagraph (4) permits the discussion of a potential litigation in executive sessions. 
            There was no necessity to publicly announce an executive session and to give a specific reason since an executive session was not held on this issue.  Mr. Scappe merely cautioned Mr. Testa about discussion at a public meeting of any potential litigation issues with the District’s architect.  The change orders and the reasons for the change order are almost always discussed at the public meeting.  Generally the architect or the construction manager advises the Board of School Directors on the proposed the change order and the reasons for the change order whether it is an increase or decrease in the construction costs.  If and/or when an executive session is held in regard to change orders and potential liability involving litigation, I am sure that Mr. Scappe will announce at a regular meeting the holding of the executive session and the reason for the executive session as he does at every public meeting.  If you have any further questions concerning this matter, please do not hesitate to contact me. 
Jack Cambest