To the extent that all or some of the information we will review will be shared with municipal representatives, it should not be considered legal advice. It is always recommended that the elected officials consult with their municipality’s Solicitor and follow that advice.
We reviewed several of the common Municipal Codes of the Commonwealth of Pennsylvania and whether or not these Codes contain specific statutory language requiring that a physical quorum of the members of the legislative body be physically present at a meeting location in order to conduct business. This memorandum will review: the Borough Code, the First Class Township Code, the Second Class Township Code, and the Third Class City Code, as these are the most common types of municipalities in Pennsylvania and those most likely seeking guidance from the Local Government Academy.
The seminal case in Pennsylvania related to meeting attendance by board members of a legislative body is Babac v. Milk Marketing Board, 531 Pa. 391, 613 A.2d 551 (1992). In Babac, the Pennsylvania Supreme Court held that a board member’s participation in a public meeting via electronic means (in the Babac case, a speakerphone) did not violate the provisions of the Pennsylvania Sunshine Act related to open meetings. The controversy in Babac involved a decision of the Pennsylvania Milk Marketing Board wherein the Board adopted a pricing order during a public meeting at which two members of the three member Board participated in the meeting via speakerphone. Only one Board member was physically present at the meeting location. Certain individuals challenged the decision, arguing that because a quorum of the Board was not physically present at the meeting location, the Board’s action was invalid. The Supreme Court, in relying on the definition of the term “meeting” in the Sunshine Law, rejected this argument and held that the decision was valid because the members who were not physically present still participated in the meeting. The members were able to hear the comments of the public, listen to communications from other Board members, and timely speak on matters of their own concern. Thus, the Supreme Court concluded that so long as the members were able to actively and meaningfully participate, a physical quorum was not necessary to conduct business and the body could still comply with the Sunshine Law.
Although the general rule in Pennsylvania is that a public legislative body is not required to have a physical quorum present at a meeting location to conduct business, certain municipal codes have expressly mandated that a quorum of the body be physically present before business could be transacted. In addition, those entities which have adopted policies related to electronic participation in meetings usually require the presence of a physical quorum to safeguard against potential legal challenges. Those policies could be suspended by the entity in times of emergency, provided that no other state statute requires a quorum to be physically present. From our review of the Municipal codes, the following entities are required to have a physical quorum present to transact municipal business.
Section 1001(c) of the Borough Code, 8 Pa. C.S.A. §1001(c) states:
(c) Telecommunication. — Council may provide for the participation of council members in council meetings by means of telecommunication devices, such as telephones or computer terminals, which permit, at a minimum, audio communication between locations, if the following apply:
A majority of the membership of council then in office is physically present at the advertised meeting place within the borough and a quorum is established at the convening or reconvening of the meeting. If, after the convening or reconvening of a meeting, a member has been disqualified from voting as a matter of law, but is still physically present, council members participating by telecommunication device in accordance with this section shall be counted to maintain a quorum.
The telecommunication device used permits the member or members of council not physically present at the meeting to: (i) speak to and hear the comments and votes, if any, of the members of council who are physically present, as well as other members of council who may not be physically present and are also using a telecommunication device to participate in the meeting; and (ii) speak to and hear the comments of the public who are physically present at the meeting
The telecommunication device used permits the members of council and the members of the public who are physically present at the meeting to speak to and hear the comments and the vote, if any, of the member or members of council who are not physically present at the meeting.
Physical absence of a council member. Council may only authorize participation by telecommunication device for one or more of the following reasons:
(i) illness or disability of the member of council;
(ii) care for the ill or newborn in the member’s immediate family;
(iii) emergency; and
(iv) family or business travel
Nothing in this subsection shall be construed to limit the protections and prohibitions contained in any law or regulation relating to the rights of the disabled.
Third – Class City Code
Section 11005 of the Third Class City Code, 11 Pa. C.S.A. §11005, is essentially identical to Section 1001(c) of the Borough Code, with the sole exception being a reference to obtaining a “quorum under Section 11004.” Section 11004 states that “a majority of the number of the members of council shall constitute a quorum” and, further, that “only members physically present at a meeting place within the city shall be counted in establishing a quorum.” Thus, like a Borough Council, a City Council in a Third-Class City must have a physical quorum in order to conduct business.
First and Second Class Townships
First and Second Class Township Codes do not contain such statutory requirements. Those boards could participate remotely even without a physical quorum being established.
Meeting Formalities Under Emergency Declaration
Some municipalities have questioned whether or not Governor Wolf’s Emergency Declaration permits municipalities to dispense with the formalities of meeting procedures during the pandemic. Section 7501(d) of the Emergency Management Act states:
(d) Temporary suspension of formal requirements.–Each political subdivision included in a declaration of disaster emergency declared by either the Governor or the governing body of the political subdivision affected by the disaster emergency is authorized to exercise the powers vested under this section in the light of the exigencies of the emergency situation without regard to time-consuming procedures and formalities prescribed by law (excepting mandatory constitutional requirements) pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, the levying of taxes and the appropriation and expenditure of public funds.[Emphasis added]. The law is very explicit in the type of actions that a municipality can take during a declared emergency. The municipality can enter into contracts and perform other actions as outlined above. Depending on the nature of the emergency, such as flooding or blizzards, taking these immediate actions may be necessary without any approval at a public meeting. The emergency actions are covered as long as they occur during the period of the declared emergency. However, if the municipality decides to schedule a meeting or hold an otherwise scheduled meeting during the time of the emergency, the above Section does not authorize the municipality to dispense with the formalities of meeting procedures. Any formal action the municipality takes at a meeting where the appropriate formalities are not observed is subject to a potential legal challenge.
Accordingly, absent any change in state law, certain municipalities still must comply with the requirements of the applicable code and obtain a physical quorum before transacting business. However, there is legislation pending which could be adopted as early as next week which would dispense with the quorum requirements during a declared emergency.
Our office will continue to provide guidance on new developments as legislation is passed in response to the Coronavirus.