Sunshine Act Legislation Relative to Municipalities

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 a municipal board (the “Board”) may add items not listed on the already published public meeting agenda.

With this law, there are three important actions and time periods to understand: 1) permissible agenda modifications more than 24-hours before a public meeting; 2) permissible agenda modifications within the 24-hours immediately prior to a public meeting; and 3) permissible agenda modifications at a public meeting.

More than 24-hours before a public meeting:

The Board has the freedom to add, delete, and modify matters on the agenda, that has not yet been made public, with no restrictions.

Within 24-hours of a public meeting:

Beginning August 29, 2021, for all public meetings, the Board 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 municipality’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.]

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

In addition, once the agenda has been made publicly accessible on the municipality’s website, the new law curtails the Board’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 Board from acting on new matters added by the Board but not listed in the originally published public agenda, unless the newly added agenda item will address:

1. A real or potential emergency involving a clear and present danger to life or property; or
2. Any matter arising, or brought to the attention of the Board, 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 municipality to enter into a contract or agreement.

While the new law does not require the Board to ensure that the minutes include specific information when new matters are voted on in the above ways, Stock and Leader recommends the Board ensures that its minutes reflect the substance of the new matter, referencing the statutory exception relied upon by the 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 meeting:

While at the public meeting, Act 65 of 2021 also allows the 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 Board 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 municipality to enter into a contract or agreement.
2. Refer to the Board a matter brought to the attention of the Board 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 board may do through a series of public votes, while at a public meeting. Specifically, if the 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 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, the Board may add a matter of municipal 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 Board 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 Board 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, boards must always remember to allow public comment on any matter that will be voted on before the board acts. This means that if the 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 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. 

Should you have any questions about these new requirements under the Sunshine Act, please do not hesitate to reach out to one of the Municipal 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.