Under the Sunshine Law, a School Board may conduct an executive session in order to consult with the district’s legal counsel on litigation matters involving the district.  A recent decision of the Commonwealth Court, however, may change the way your district conducts litigation-related executive sessions.  In the case of Trib Total Media, Inc. v. Highlands School District, 1588 C.D. 2009, Trib Total Media sued the School District for violation of the Sunshine Act after it held an executive session on June 8 to discuss litigation. The Board invited owners and representatives from a local commercial shopping center to attend the executive session to discuss a potential tax appeal related to the property.  When a reporter from the Dispatch attempted to attend the meeting, the reporter was turned away.

Allegheny County Judge James dismissed the Complaint on the basis that the Act’s definition of “executive session” specifically states that the agency “may admit those persons necessary to carry out the purpose of the meeting,” which was, in his view, broad enough to include the taxpayer and its representatives.  On appeal, a three-judge panel of the Commonwealth Court reversed Judge James and held that the executive session with the shopping center’s representatives did violate the Sunshine Act.  The Commonwealth Court panel looked at the purpose of the Act, namely to permit the public to have notice of and the right to attend meetings of public agencies where official business is discussed or acted upon.  While the Act provides a specific exception for executive sessions held for the purpose of conferring with legal counsel related to litigation, the Commonwealth Court held that this exception should be construed narrowly.  The Court stated that the plain language of the executive session exception permits a school district’s board “to consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.”  The Court stated that this exception was intended to protect the attorney-client privilege for public agencies because if agencies were required to discuss litigation strategy in public, it would be detrimental to the public interest.  The Court also noted, however, that attorney-client privilege is destroyed when an outside third party is present while such communications are made 

The Court held that because the Act’s exception is specifically limited to consultations with the district’s attorney or other professional advisor, this excludes settlement meetings such as the one conducted by the Highlands Board with the taxpayer litigant and its representatives:  “By including representatives of the shopping center in the executive session, the Board destroyed the confidentiality of the communications between the Board and its solicitor.  We conclude that by doing so, the Board took the meeting outside the scope of Section 708(a)(4) and rendered it a private meeting that violated the Sunshine Act.”  It is clear from the panel’s opinion that the presence of any third party, apart from district representatives and its legal counsel, destroys the executive session privilege, which raises the issue of whether board members may attend settlement conferences held in connection with pending litigation. 

One way in which school districts may address the ruling in the Highlands case is to specify how meetings held with the Board and its legal counsel are structured and framed.  The Sunshine Act defines a “meeting” as a gathering held “for the purpose of deliberating agency business or taking official action.”  The best course of action for school districts who wish to have third parties deliver information directly to the school board in connection with a litigation matter would be to have a session in which no deliberation — defined under the Act as “the discussion of agency business held for the purpose of making a decision” — or official action occurs and the Board merely receives information from a third party, such as a litigation adversary or labor union.  Under these circumstances, such a gathering would not constitute a meeting under the Sunshine Act.  Thereafter, if the Board needs to discuss or deliberate regarding the subject matter involved, it would need to exclude any third parties from the room, convene an executive session and speak directly with the Board’s legal counsel or satisfy some other exception under the Sunshine Act, such as executive sessions held for personnel matters or collective bargaining.  By limiting the parties who attend litigation-related executive sessions and changing the board’s meeting structure, a school district can ensure its compliance with the Act.

Highlands School District has filed a Petition for Reconsideration with the Commonwealth Court to review the panel’s decision in this case.  We will update the status of this litigation in future issues, but if this decision is upheld, it will significantly impact the way in which school districts conduct executive sessions concerning litigation.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.