Sunshine Act Legislation

On Wednesday, June 30, 2021, Governor Wolf signed into law Act 65 of 2021 (Senate Bill 554), modifying the Sunshine Act by imposing new procedural requirements for public notice and specific exceptions related to instances when school district Administration may add items not listed on the already published school board meeting agenda.

To be clear, Stock and Leader is of the opinion that, until we receive a challenge suggesting otherwise, these revisions do not change what a school board is authorized to do during a public meeting – the school board has always been able to vote to amend the agenda to add additional items for approval during a public meeting. Of course, it is our recommendation, and best practice, to avoid last-minute additions to the agenda altogether. Items added at a public meeting provide little or no advance notice to members of the public who might not otherwise be attending the meeting, but who have an interest in commenting before official action is taken. 

At present, these amendments to the Sunshine Law are best viewed through the lens of a timeline: 1) permissible agenda modifications more than 24-hours before a public school board meeting; 2) permissible agenda modifications within the 24-hours immediately prior to a public school board meeting; and 3) permissible agenda modifications at a public school board meeting.

More than 24-hours before a school board meeting:

The Administration has the freedom to add, delete, and modify matters on the agenda, that has not yet been made public, with no restrictions. The Administration should review their Board Policy 006 – Meetings, to review its obligation to provide the intended agenda to each Board Member by a specific date – however, the agenda can always be modified prior to being made public.

Within 24-hours of a school board meeting:

Beginning August 29, 2021, for all public meetings (but not for executive sessions or conferences), school districts will be required to:

1. Post the agenda:
   1. On its publicly accessible website no later than 24 hours in advance of the meeting;
   2. At the physical location of the meeting; and
   3. At the school district’s administrative office;
2. Provide copies of the agenda to individuals attending the meeting; and

[Stock and Leader believes that the language of the statute can reasonably be interpreted to require physical copies of the agenda be made available for the public when the meeting is held as an in-person meeting. This practice also accommodates those without smart-phone capability and those with certain disabilities.]

3. Ensure the agenda, as posted publicly, and provided at the meeting, includes a listing of each matter of school district business that will be, or may be, subject to deliberation or official action at the meeting.

In addition, once the agenda has made publicly accessible on the school district’s website, the new law curtails the Administration’s ability to add to the agenda within the 24-hour period prior to a meeting. Specifically, Act 65 of 2021 modified the Sunshine Act and prohibits the school board from acting on new matters added by the Administration, but not listed in the originally published public agenda, unless the newly added agenda item will:

1. Address a real or potential emergency involving a clear and present danger to life or property, at any regularly scheduled or emergency meeting, regardless of whether public notice was given for the meeting; or
2. Address any matter arising, or brought to the attention of the school district, within the 24-hour period prior to the meeting, if
   1. The matter is de minimis in nature,
   2. Does not involve the expenditure of funds; and
   3. Does not require the school district to enter into a contract or agreement.

While the new law does not require the school district to ensure that the minutes include specific information when new matters are voted on in the above ways, Stock and Leader recommends school boards ensure that their minutes reflect the substance of the new matter, referencing the statutory exception relied upon by the school board, the vote on the new matter, and the reason for acting on the new matter when it was not originally published in the notification.

At a public school board meeting:

While at the public school board meeting, Act 65 of 2021 also allows the school board to address new matters that were not included in the originally published public agenda (published more than 24 hours prior to the meeting), in order to:

1. Address a matter brought to the attention of the school district during a meeting by a resident or taxpayer, if
   1. The matter is de minimis in nature,
   2. Does not involve the expenditure of funds; and
   3. Does not require the school district to enter into a contract or agreement.
2. Refer to the Administration a matter brought to the attention of the school district during a meeting by a resident or taxpayer, to research for inclusion on the agenda of a future meeting.

Act 65 of 2021 did not, however, change the power of what a school board may do through a series of public votes, while at a public meeting. Specifically, if the school board would like to vote to add a new matter to the agenda and then act upon that newly added matter, it appears that Act 65 recognizes that common practice and affirms that school boards may still do so while following a certain procedure. Act 65 of 2021 provides that upon majority vote of the Board Members present and voting during a meeting (not an executive session or conference), a school district may add a matter of school district business to the agenda (not limited to the above topics), and then vote on said matter, if:

1. The Board announces the reason for the change to the agenda before the vote occurs;
2. The school district posts the amended agenda to its publicly accessible website and at its administrative offices no later than the first business day following the meeting; and
3. The school district ensures that the minutes of the meeting reflect the substance of the added agenda item, the vote on the addition, and the announced reason for the addition, again referencing the statutory exception upon which the board relied to add the item.

Lastly, school boards must always remember to allow public comment on any matter that will be voted on before the school board acts. This means that if the school board has already passed the public comment portion of their agenda, it must still allow the public to comment on a new matter added to the agenda before it votes.

Many of the permissions allowed by Act 65 of 2021 are granted through less than clear judgment calls.  Please ensure you seek the advice of your solicitor prior to engaging in action that relies on instances of “real or potential emergency” or “de minimis in nature.” It is best practice to avoid last-minute additions to the agenda within the newly denoted 24-hour period, or even at a public meeting through school board votes to add an item to the agenda. Without advance notice to the public, a subset of citizens will always be excluded from comment unless they are attending the board meeting. 

As a safeguard, when the Administration anticipates a last-minute addition that would require a school board vote to approve an addition of an item to the agenda, the Administration should add to the public agenda a “placeholder” agenda item. For example, the agenda would read:

“Administration recommends approval of the hiring of ________for the position of fine arts teacher.”
“Administration recommends approval of the contract for sidewalk repairs to be awarded to _______.”
“Administration recommends approval of the textbooks to be listed as follows: ______.”
“Administration intends to consider and recommend candidates for hire and contracts with vendors.”

Should you have any questions about these new requirements under the Sunshine Act, please do not hesitate to reach out to one of the School Law attorneys at Stock and Leader. Our position and interpretation of this law is developing, and a taxpayer challenge could change the operating rules as we all navigate this new language.