On July 31, 2012, a panel of the Commonwealth Court in an opinion authored by Judge Leavitt affirmed a decision of the Berks County Court of Common Pleas denying a request for a declaratory judgment that a Board of Supervisors had violated the Sunshine Act. Smith v. Township of Richmond et al., No. 1512 C.D. 2011 (July 31, 2012). Smith asserted that the Supervisors of his Township had violated the Sunshine Act by holding four “closed-door” meetings with different parties interested in litigation involving a quarry located within the Township. While the Township claimed that these were merely “fact finding” meetings with various parties involved and/or effected by the quarry’s request to expand its operations, Smith charged that deliberations or official action had been taken at these meetings and thus violated 65 Pa. C.S. §704.
A key element to the Commonwealth Court’s decision was the record of the hearing held in the trial court below and depositions of the Supervisors which had been taken. Not only did all three Supervisors testify but so did a member of a Citizens Group, one of the groups which met with the Supervisors, representatives of the quarry, as well as, representatives of neighboring townships which had also participated in those meetings. All of those who were deposed and/or testified stated that only fact finding was done during the meetings and that no deliberations, decisions or any other type of official action occurred at these meetings. Of equal importance was the fact that Smith conceded that he had no knowledge of any votes taken during or shortly after any of these meetings. The evidence also revealed that only one Supervisor met with the various groups at a time along with the Township’s solicitor. Finally, the evidence revealed that after these meetings had occurred, and shortly before the next meeting of the Supervisors, the quarry tendered a proposed settlement agreement to the solicitor. After meeting in executive session with the solicitor to discuss the settlement proposal and having the solicitor read the entire agreement into record, debate followed in public session and the Supervisors voted 2-1 to accept the proposal.
In affirming the trial court, the Commonwealth Court noted the lack of any evidence indicating that deliberations or official actions had taken place during any of these meetings. In addition, the court emphasized that agencies are free to hold non-public meetings solely for the purpose of information gathering, investigation or fact finding, so long as, deliberations or official actions as defined under the Sunshine Act do not occur.
The court differentiated this situation from its decision in Trib Total Media, Inc. v. Highlands School District, 3 A.3d 695 (Pa.Cmwlth. 2010) by pointing out that the school board, in that case, admitted that it had deliberated with the business owners during its executive session and that the school board’s assertion of its right to meet with its solicitor as an exception to the Sunshine Act did not apply when that meeting involved opposing parties within the discussions held with the solicitor. The court also analogized this to other Sunshine Act cases which found meetings to help bring a new supervisor “up to speed” are not required to be held in public.
This case underscores the difficulty in successfully pursuing a Sunshine Act violation under the current state of the Act. As Judge Leavitt pointed out:
Sunshine Act cases are fact intensive. It is the plaintiff’s burden to prove that official action was taken or that “deliberations” took place at a private meeting. Smith argues that if we uphold the trial court, the only way to prove unlawful “deliberations” will be by admission, as in Trib Total Media. This may be so. The true difficulty is that a violation of the Sunshine Act can be shown only by testimony, under oath, of those in attendance at the meeting alleged to have violated the sunshine [sic] Act.
As this case points out, if the parties at the meeting alleged to have violated the Act close ranks and testify that none of the prohibited acts took place during the meeting, it is virtually impossible for a citizen to challenge such action under the Sunshine Act. This is a continuing weakness in the current state of the Sunshine Act. Various bills have proposed amendments to the Act, including requiring the taking of a record or official notes at executive sessions which could be used by those challenging discussions that take place during such meetings which would aid in challenges. Until this occurs, those challenging the actions of elected officials under the Sunshine Act will continue to fight an uphill battle.
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