The Pennsylvania Sunshine Act (65 Pa. C.S.A. § 701, et. seq.) requires that official action and deliberations by a quorum of the board take place at a meeting open to the public. The public may be excluded from executive sessions held for the purpose of discussing one or more of the following topics: personnel, labor relations, real estate, litigation, and confidential information.
The purpose of the executive session must be announced at the open meeting occurring either immediately prior or subsequent to the executive session. Recent events in a local Pennsylvania county may increase media interest in this topic of announcing executive sessions. While Stock and Leader’s advice remains the same as it has been for decades, engaging in best practices when announcing executive sessions can avoid potential conflict.
In particular, if the topic of the executive session is about:
– Current litigation, in which the case has been filed and the matter of the case is public:
- DO announce, “We held an executive session immediately prior to this meeting to discuss the Smith litigation.”
- DO NOT announce, “We held an executive session immediately prior to this meeting to discuss settlement of the Smith litigation.” Do not divulge any possible legal strategy to be discussed in the executive session.
– Current litigation, in which the case has been filed and pertains to a student (therefore private):
- DO announce, “We held an executive session immediately prior to this meeting to discuss special education litigation.” OR
- DO announce, “We held an executive session immediately prior to this meeting to discuss a student discipline matter.”
- DO NOT announce, “We held an executive session immediately prior to this meeting to discuss the Walker Special Education case.”
- DO NOT announce, “We held an executive session immediately prior to this meeting to discuss the Walker case,” if “Walker” is the student’s last name. It is possible that this personally identifiable information could be linked to the student which would violate FERPA.
– Pending litigation, in which the case has not yet been filed:
- DO announce, “We held an executive session immediately prior to this meeting to discuss pending litigation.”
- DO NOT announce, “We held an executive session immediately prior to this meeting to discuss pending Jones litigation.” Do not announce the name of the party in the case if the matter has not been filed.
– Personnel:
- DO announce, “We held an executive session to discuss an employee discipline matter.”
- DO NOT announce, “We held an executive session to discuss the discipline of the high school principal.”
Stock and Leader advises that all other reasons for executive sessions be announced as they have always been announced, “real estate,” “labor relations” and “confidential information.”
As always, the executive session discussion should stay within the announced reason. Do not discuss matters that were not announced; do not discuss matters that are intended to be deliberated in an open meeting.
Again, we realize that current events may have muddied the waters on the standard for announcing executive sessions, however, Stock and Leader remains confident in its advice. If you or your Board President have any questions, please feel free to contact your Stock and Leader School Law Team.