How to Amend an Agenda Following the Most Recent Sunshine Act Update

In 2021, Pennsylvania amended the Sunshine Act to include a blanket prohibition against an agency taking official action on a matter if the matter does not meet the notice requirements under the Act*.  Those notice requirements are:

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
3. Ensure that 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.

So, no more amending agendas at the last minute, right?  Well not exactly.  The Act allows several exceptions to the blanket rule at the following timing intervals: 1) agenda modifications prior to posting the agenda; 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 and prior to posting:

First off, an agency has the freedom to add, delete, and modify matters on an agenda, that has not yet been made public, with no restrictions. Which makes sense, because before an agenda is made public, is it even really an agenda? However, once an agenda has been made public, the rules for amending an agenda within 24 hours of the meeting apply.

Within 24-hours of a public meeting:

Once an agenda has been made publicly accessible on an agency’s website, an agency cannot act on a new matter not listed in the originally published public agenda, unless the newly added agenda item addresses:

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, and:
   1. The matter is de minimis in nature; and
   2. Does not involve the expenditure of funds; or
   3. Does not require the Board to enter into a contract or agreement.

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:

An agency may take action on new matters at a public meeting that were not included in the originally published agenda if the new matter is brought to the attention of the agency during the meeting by a resident or taxpayer and:

1. The matter is de minimis in nature; and
   1. Does not involve the expenditure of funds; or
   2. Entering into a contract or agreement. OR
2. The agency may take official action to refer the new matter to staff for the purpose of researching the matter for inclusion on the agenda at a future meeting.

Makes sense: as once the agenda is posted, an agency cannot take official action on any new matters that have been added to the agenda, unless it is an emergency, or the action is de minimus and doesn’t spend money or bind the agency through a contract. The goal here is to make sure the public is on notice of things that are important.

Here is where it gets fun(ny), though: if an agency would like to add a new matter to the agenda at a meeting and take official action upon that newly added matter, the Board still can! Upon majority vote of the Board Members present and voting during a meeting, an agency may add a new matter of agency business to the agenda (not limited to the above topics) and then take official action on said matter, if:

1. The Board announces the reasons for the proposed change to the agenda prior to any vote being conducted to add the new matter;
2. After approval by the Board to add the new matter, the Board may take official action on the new matter;
3. Afterward, the agency 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
4. The Board ensures that the minutes of the meeting reflect the announced reason for the added agenda item; the vote on the addition of the added matter; the substance of the  added item; and the official action taken on the new matter.

Lastly, agencies must allow public comment on any matter prior to a Board taking official action. This means that if the Board has already passed the public comment portion of its agenda, it must still allow the public to comment on the new matter added to the agenda before it takes official action.

Many of the exceptions available under the Sunshine Act are granted through less than clear judgment calls.  Please ensure that 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.