Groups representing local government officials are celebrating the Pennsylvania Supreme Court’s decision this week to remove the mandated 24-hour window for making meeting agendas available to the public.
But government transparency advocates across the commonwealth argue the ruling could suppress public input on important local issues by allowing elected officials to insert agenda items onto the calendar without prior notice.
On Monday, as first reported by WESA, the state Supreme Court ruled in a 4-3 decision to allow local agencies to subvert the required 24-hour release of public meeting agendas with a simple majority vote of their individual bodies.
John Brenner, executive director of the Pennsylvania Municipal League, said the ruling would help local governments be more efficient.
“We hear all the time, particularly from those in the business sector,” he said, “that local government is not moving fast enough to help with local economic and community development projects, to help make sure we’re doing things in a timely fashion.”
Brenner also noted that the public officials will need to hold a public vote to alter the agenda, which he said maintains transparency.
Not everyone agreed.
Longtime good government advocate Eric Epstein, founder of Harrisburg-based watchdog group Rock the Capital, called the court’s decision a “setback” and “black eye” for transparency.
“This was a big step back into darkness,” Epstein said, contrasting the ruling’s effect with the title of the state’s pivotal public access law, the Sunshine Act. “How can the public ever be assured that the agenda is final?”
A 2021 amendment to the Sunshine Act required officials to post their agenda, notifying the public of any planned votes, at least 24 hours before their meeting. The law excludes certain votes from that rule.
One exemption added with the 2021 amendment — stating that a majority vote of members could “add a matter of agency business to the agenda” — was the crux of the majority opinion, written by Justice Christine Donohue.
Behind the decisionIn 2021, the Parkland School District in the Lehigh Valley approved a new contract for its teachers’ union. The union had only agreed to the contract earlier that same day. A majority of district board members then voted to insert the item on that day’s agenda and then passed it.
The board maintained that because the deal was finalized only hours before the meeting, it was impossible to give the public advance notice of the agenda change. Republican state Sen. Jarrett Coleman, who at the time served on the school district’s board, challenged that position in court.
Coleman asserted that the law requires all four statutory exemptions to be satisfied before an agenda can be amended on the spot. Organizations spanning the political spectrum, from the ACLU of Pennsylvania to the conservative-leaning Commonwealth Foundation to the Pennsylvania NewsMedia Association, urged the state’s highest court to affirm a Commonwealth Court ruling that affirmed Coleman’s challenge.
But in reversing that decision, Justice Dononue, along with Justices Kevin Dougherty and Sallie Updyke Mundy, argued that the Legislature intended for there to be “four standalone exceptions” because lawmakers used the word “or” to separate them in the legislation.
“If the General Assembly intended something different from what is expressed in that plain text, it is free to amend the statute,” Donohue wrote.
Justice Kevin Brobson also joined Donohue’s ruling.
Coleman slammed the court’s decision a statement.
“Imagine having no idea that your municipality is going to vote on approving a new warehouse or data center,” he said. “This court decision would allow a municipality to make any adjustments they want to the posted agenda with only a majority vote of the members. The public won’t know what’s coming until it’s too late.”
Chief Justice Debra Todd and Justices Daniel McCaffery and David Wecht opposed the ruling.
Todd wrote that while she agreed the “plain” meaning of the word “or” would typically differentiate between separate choices, such a ruling in this case would be “plainly contrary to the unmistakable intent of the (Legislature).”
‘To avoid public scrutiny’The Pennsylvania School Board Association, the Pennsylvania State Association of Township Supervisors and the Pennsylvania State Association of Boroughs wrote an amicus brief urging the Supreme Court to overturn the Commonwealth Court’s ruling.
In a statement to WITF, the PSBA wrote that the overturning of the 24-hour notice rule “ensures that school boards have the flexibility to address urgent matters without unnecessary delays, while still complying with transparency requirements.”
Ron Harper, a watchdog who has cited the Sunshine Act in several lawsuits against public agencies in Lancaster County, said the law was already weak and the latest ruling undermines it further.
“It essentially creates a loophole by which bad operators can manipulate in order to avoid public scrutiny,” Harper said.
Melissa Melewsky, counsel for the Pennsylvania NewsMedia Association, said she is hopeful that the General Assembly will act soon to amend the Sunshine Act and reinstitute the required 24-hour notice.
The “purely grammatical” argument taken by the majority opinion, Melewsky said, overlooks the harmful impact their interpretation will have by rendering “the intent of the agenda amendment meaningless.”