Supreme Court Holds Agency Gatherings Convened Solely for the Purpose of Collecting Information Do Not Violate Sunshine Act
In Smith v. Township of Richmond, — A.3d –, No. 34 MAP 2013 (Dec. 17, 2013), the Supreme Court held that the Sunshine Act does not prohibit agencies from convening with litigation parties behind closed doors if the purpose of the gathering is information collection and agency member education and no “deliberation” or “official action” occurs.
Richmond Township was engaged in litigation with the Lehigh Cement Company and the East Penn Valley Residents Group over the possible expansion of Lehigh Cement’s quarry into the Township. While the litigation remained pending, the Township’s Board of Supervisors (“Board”) participated in a series of four closed door gatherings: one with Lehigh Cement and its attorneys, one with the Citizens Group and its attorney, and two with representatives of adjacent municipalities that had experience dealing with quarries.
Following the gatherings, a single appointed Board member participated in settlement discussions with Lehigh Cement. At the next public meeting, Lehigh Cement submitted a proposed settlement agreement, which was read into the record and heavily debated. The Board then publicly voted to accept the settlement agreement.
A township resident (“Resident”) filed a complaint challenging the validity of the four gatherings under the Sunshine Act. Resident took the position that the Board had discussed and deliberated on Township business at the gatherings and averred that the gatherings violated Section 704 of the Sunshine Act.
Depositions were taken and the Board, Lehigh Cement, the Citizens Group, and the neighboring townships stated that the Board convened the gatherings only to collect information on and educate themselves about the effects of quarry operations. Resident believed the meetings were in reality “settlement conferences,” and that the scheduled gatherings were used to develop terms of a settlement agreement.
The trial court granted summary judgment in favor of the township. On appeal, the Commonwealth Court initially began by reviewing the definitions of “meeting,” “public action,” and “deliberation” under the Sunshine Act.
The court rejected a broad interpretation of “deliberation” as subsuming all discussion of any topic related to future agency business. The court noted that agency fact finding need not take place in public, and that public officials in meeting their duty to be fully informed may study, investigate, discuss, and argue problems and issues outside the confines of a public meeting. The court further noted that there is a difference between “discussion” and deliberation,” and that agency members may informally discuss and debate proposals among themselves without violating the Sunshine Act.
Finally, the court observed that the burden of proving that deliberations took place at a private meeting is on the plaintiff. Here, where the testimony of all the participants showed that the Board was collecting information to allow them to make a decision at some later time, Resident failed to meet this burden.
The Pennsylvania Supreme Court granted appeal on a limited basis to examine whether the Sunshine Act’s definition of “deliberations” is implicated where an agency meets with various parties – including opposing parties in litigation – to obtain information designed to help the agency make a more informed decision with regard to settling ongoing litigation.
The Supreme Court focused on whether the discussions in question constituted “deliberations,” that is, whether they were held “for the purpose of making a decision” on whether to settle the litigation. The Court explained that making a decision implies the exercise of judgment to determine which of multiple options is preferred. The court further explained, discussions may be said to have taken place “for the purpose of making a decision” – and therefore, to have comprised “deliberations” – where the discussion consisted of debate or discourse directed towards the exercise of judgment.
With this in mind, the Court held that gatherings held solely for the purpose of collecting information or educating agency members about an issue do not fit the description of “deliberations,” notwithstanding that the information may later assist the members in taking official action on the issue. The court also explained in a footnote that even if Resident was able to prove that deliberations took place, the agency action would not be invalidated because the Board’s proper entrance into the settlement agreement at the later open meeting cured any prior violation of the Sunshine Act.
The takeaway: agencies may convene with parties behind closed doors if the sole purpose of the gathering is information collection and education about the facts. Agencies should beware, however, because holding closed door meetings may invite Sunshine Act challenges. If possible, agencies should confer with their solicitor before holding gatherings in order to avoid Sunshine Act violations.
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 “Gatherings” is used because the term “meetings” has a specific, relevant definition under the Sunshine Act.