Commonwealth Court finds Sunshine Act Violation Where School Board Invites Property Owners to Participate in Executive Session to Discuss Property Tax Assessment Appeal

Trib Total Media, Inc. (“TTM”) brought suit against the Highlands School District because the school board barred a reporter from attending an executive session.  In its answer to TTM’s complaint, the school district admitted that the school board discussed a property tax assessment appeal with owners of the shopping center subject to the appeal.  The school district asserted that such an action was permissible under Section 708(a)(4) of the Sunshine Act, which permits the discussion of matters of pending litigation in an executive, hence private, session.

The Commonwealth Court held that only attorneys and advisors may participate in executive sessions pursuant to this section.  The purpose of such executive session is for the members to receive confidential advice that must be kept confidential to protect an agency’s ability to settle or defend legal matters.  The presence of the property owners not only destroys the confidentiality of the advice, but also shows an “odor of favoritism” that the Sunshine Act does not tolerate.  The established and acceptable practice is for municipal solicitors to conduct settlement conferences by entering into discussions with representatives of parties, negotiating proposals for settlement, and then presenting any proposed settlement to his or her public body for deliberation and approval.

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