Executive Sessions – Yes or No?

For many years, there was little court guidance on the use of Executive Sessions under the Sunshine Act.  However, in recent years, two (2) court decisions now provide guidance to school districts in when it is appropriate to call for an Executive Session.

In 2011, the Pennsylvania Supreme Court refused to consider the school district’s appeal from the Commonwealth Court’s decision in Trib Total Media v. Highlands School District.  This case concerned an Executive Session in which the school district adjourned to review pending litigation, a property assessment appeal, with its Solicitor and potentially explore possible settlement.  However, in conducting the Executive Session, the owners of the shopping center and their representatives were invited to participate in the discussions.  When the Executive Session was challenged, the argument in support of the Executive Session was that the school district was discussing litigation with its legal counsel and as such fell within an Executive Session exception to the Sunshine Act.  The court reasoned that while this might have been the case if the discussions were solely with the Solicitor, the court noted that once the opposing party and their representatives were invited to participate, the protection of the Executive Session no longer applied.  The clear instruction from this case is to be careful who is invited to participate in the Executive Session.

In addition, the December 16, 2013 Pennsylvania Supreme Court Decision in Smith v. Township of Richmond, Berks County, et al. drew attention to the even greater importance in identifying the reason for the Executive Session rather than who participated in it.  In the Township of Richmond case, the Township Board of Supervisors met not only with the Township Solicitor, but also with various other individuals and parties, including representatives of two companies regarding the possible expansion of a limestone quarry in the Township which was the subject of litigation.  However, the Solicitor did not identify the reason for the Executive Session as “litigation,” but rather expressed that they were information gathering meetings at which no deliberations occurred.

Based upon the facts of the Township of Richmond case, the Supreme Court concluded that the closed gatherings were held with the goal of gaining information which could prove useful to the Township in negotiating the terms of a settlement of the underlying litigation between the Township and the quarry companies.  It further stated that gatherings held solely for the purpose of collecting information or educating agency members about an issue do not constitute decision making or deliberations. The Court also made it clear that such informational “gatherings” are not meetings or executive sessions as contemplated by the Act. Rather, the Sunshine Act was written so as to leave room for closed-door gatherings held for purposes other than making a decision. In this particular case, the four closed-door gatherings did not violate the Act because they were held for informational purposes only and did not involve deliberations. The Court noted that merely learning about the salient issues so as to reach an informed resolution at some later time does not in itself constitute deliberation.

It is important to keep in mind, however, that while the receipt or gathering of information, including asking questions for purposes of clarification, is permissible in a closed meeting, any attempt to discuss the pros and cons of a course of action based on that information may constitute deliberations that must either occur in public or be conducted in an “executive session” because the subject matter meets one of the executive session permitted subjects (ie., personnel, labor, litigation, etc.)