Does Section 712.1 of the Pennsylvania Sunshine Act provide three or four exceptions to the requirement that an agency provide 24 hours’ notice of an agenda prior to a public meeting?
Coleman v. Parkland Sch. Dist., 305 A.3d 238 (Pa. Cmwlth. 2023), allocatur granted May 7, 2024, appeal docket 33 MAP 2024
The Pennsylvania Supreme Court will consider, as a matter of first impression, whether Section 712.1 of the Pennsylvania Sunshine Act provides three or four exceptions to the requirement that an agency provide 24 hours’ notice of an agenda prior to a public meeting.
Commonwealth Court summarized the relevant statutory provisions as follows:
The backdrop for the parties’ disagreement is Section 702(b) of the Sunshine Act, in which the General Assembly “declares it to be the public policy of this Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this chapter.” 65 Pa.C.S. § 702(b). To that end, Section 709 of the Sunshine Act requires, in pertinent part:
(a) Meetings.—An agency shall give public notice of its first regular meeting of each calendar or fiscal year not less than three days in advance of the meeting and shall give public notice of the schedule of its remaining regular meetings. An agency shall give public notice of each special meeting or each rescheduled regular or special meeting at least 24 hours in advance of the time of the convening of the meeting specified in the notice. Public notice is not required in the case of an emergency meeting or a conference. …
(b) Notice.—With respect to any provision of this chapter that requires public notice to be given by a certain date, the agency, to satisfy its legal obligation, must give the notice in time to allow it to be published or circulated within the political subdivision where the principal office of the agency is located or the meeting will occur before the date of the specified meeting.
65 Pa.C.S. § 709.
In Senate Bill 554 (SB 554), S.B. 554, 205th General Assembly, Regular Session (Pa. 2021-2022), the General Assembly amended Section 709 of the Sunshine Act to add subsection (c.1), effective August 30, 2021, which mandates, in relevant part:
Notification of agency business to be considered.–
(1) In addition to any public notice required under this section, an agency shall provide the following notification of agency business to be considered at a meeting as follows:
(i) If the agency has a publicly accessible Internet website, the agency shall post the agenda, which includes a listing of each matter of agency business that will be or may be the subject of deliberation or official action at the meeting, on the website no later than 24 hours in advance of the time of the convening of the meeting.
65 Pa.C.S. § 709(c.1)(1)(i) (text emphasis added).
Section 712.1 of the Sunshine Act, also added in SB 554, effective August 30, 2021, states:
(a) Official action.–Except as provided in subsection (b) [(relating to emergency business)], (c) [(business arising within 24 hours before the meeting)], (d) [(relating to business arising during the meeting),] or (e) [(relating to agenda changes)], an agency may not take official action on a matter of agency business at a meeting if the matter was not included in the notification required under [S]ection 709(c.1) [of the Sunshine Act] (relating to public notice).
(b) Emergency business.–An agency may take official action at a regularly scheduled meeting or an emergency meeting on a matter of agency business relating to a real or potential emergency involving a clear and present danger to life or property regardless of whether public notice was given for the meeting.
(c) Business arising within 24 hours before meeting.-An agency may take official action on a matter of agency business that is not listed on a meeting agenda if:
(1) the matter arises or is brought to the attention of the agency within the 24-hour period prior to the meeting; and
(2) the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement by the agency.
(d) Business arising during meeting.–If, during the conduct of a meeting, a resident or taxpayer brings a matter of agency business that is not listed on the meeting agenda to the attention of the agency, the agency may take official action to refer the matter to staff, if applicable, for the purpose of researching the matter for inclusion on the agenda of a future meeting, or, if the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement, the agency may take official action on the matter.
(e) Changes to agenda.–
(1) Upon majority vote of the individuals present and voting during the conduct of a meeting, an agency may add a matter of agency business to the agenda. The reasons for the changes to the agenda shall be announced at the meeting before any vote is conducted to make the changes to the agenda. The agency may subsequently take official action on the matter added to the agenda. The agency shall post the amended agenda on the agency’s publicly accessible Internet website, if available, and at the agency’s principal office location no later than the first business day following the meeting at which the agenda was changed.
….
(f) Minutes.–If action is taken upon a matter of agency business added to the agenda under this section, the minutes of the meeting shall reflect the substance of the matter added, the vote on the addition[,] and the announced reasons for the addition.
65 Pa.C.S. § 712.1 (bold text and underline emphasis added).
Slip op. at 5-8.
Commonwealth Court summarized the relevant factual history that:
Coleman is a District resident. On or about October 25, 2021, the District issued a public notice which stated that the Parkland School Board (School Board) would conduct a meeting on October 26, 2021, and published the agenda therefor, which did not include the School Board’s consideration of the CBA. However, the School Board’s October 26, 2021 meeting minutes reflect:
[School Board member Lisa] Roth [(Mrs. Roth)] made a motion to add the following agenda item, seconded by Mr. Kennedy, to approve and authorize the School Board President to execute[,] and the School Board Secretary to attest[,] the [CBA].
Mrs. Roth explained that this agenda item was not previously listed on the agenda for tonight’s meeting because the [CBA] had not yet been voted upon by the [ ] Association until today[,] when the teachers voted to approve [it]. To list the [CBA] on the [School] Board’s agenda prior to the teacher’s [sic] vote would have been premature and inappropriate.
Reproduced Record (R.R.) at 174a; see also R.R. at 37a-38a. Thereafter, a majority of the School Board voted to authorize the School Board President to execute the CBA, and the School Board Secretary to attest it. See R.R. at 178a.
On November 2, 2021, Coleman filed a Complaint for Declaratory Judgment and Injunctive Relief for Violation of the Sunshine Act in the trial court relative to Case No. 2666 challenging the School Board’s October 26, 2021 action (Case No. 2666 Complaint). Therein, Coleman asked the trial court to: (1) declare that the District violated Section 712.1(e) of the Sunshine Act, 65 Pa.C.S. § 712.1(e), by voting to amend the agenda at the October 26, 2021 School Board meeting and approve the CBA; (2) declare the CBA invalid; (3) permanently enjoin the District from taking official action concerning matters involving the expenditure of funds or entering into contracts that are not listed on a publicly posted agenda at least 24 hours in advance of a public meeting; and (4) award Coleman reasonable attorney’s fees and costs. The District filed an answer and new matter to the Case No. 2666 Complaint asserting a counterclaim for attorney’s fees and costs.
At its November 16, 2021 meeting, after providing public notice thereof, the School Board voted to ratify its October 26, 2021 action on the CBA. On December 6, 2021, Coleman filed a complaint in the trial court relative to Case No. 2990 related to the Board’s November 16, 2021 ratification (Case No. 2990 Complaint). The District filed an answer and new matter to the Case No. 2990 Complaint asserting a counterclaim for attorney’s fees and costs.
On January 24, 2022, the trial court consolidated Coleman’s actions for the limited purpose of discovery and trial. On September 1, 2022, the District filed the Motion, which Coleman opposed on September 28, 2022. On November 17, 2022, the trial court granted the Motion with respect to Case No. 2666, but denied the Motion concerning Case No. 2990. By separate order, the trial court denied Coleman’s cross-motion for summary judgment in Case No. 2990.
Slip op. at 2-4. Coleman appealed. The parties advanced the following arguments, as summarized by Commonwealth Court:
Coleman argues that the School Board amended its agenda at the October 26, 2021 meeting, and took action on the CBA, despite that the CBA did not meet the criteria of any of the three exceptions: (1) emergency business; (2) de minimis business not involving fund expenditure or entering into a contract that arises within the 24 hours preceding the meeting; or (3) de minimis business raised by a resident/taxpayer during the meeting that does not involve fund expenditure or entering into a contract. Coleman contends that Section 712.1(e) of the Sunshine Act merely states the procedure by which the School Board could amend its agenda when one of the three exceptions applied. Coleman asserts that, “[a]s the Sunshine Act does not provide a mechanism to amend an agenda to take official action outside of Section 712.1(e) [of the Sunshine Act], the word ‘or’ should be read as ‘and’ in Section 712.1(a) [of the Sunshine Act] based on the plain language in the surrounding context.” Coleman Br. at 24.
The District retorts that the connector or in Section 712.1(a) of the Sunshine Act signals that the statutory elements are met when any one is satisfied and, thus, that provision contains four exceptions to the general rule: (1) emergency business; (2) de minimis business not involving fund expenditure or entering into a contract that arises within the 24 hours preceding the meeting; (3) de minimis business raised by a resident/taxpayer during the meeting that does not involve fund expenditure or entering into a contract; or (4) changes to the agenda – and the School Board complied with the latter on October 26, 2021. The District asserts that “[a]ny other interpretation requires the Court to re-write the statute by changing the word ‘or’ to ‘and.’ ”9 District Br. at 18.
Slip op. at 8-9.
Commonwealth Court reversed the trial court as to its interpretation of Section 712.1 and held that Section 712.1 provides three exceptions: (1) for emergency business, (2) for de minimis business not involving fund expenditure or entering into a contract that arises within 24 hours preceding meeting, and (3) for de minimis business raised by resident or taxpayer during meeting that does not involve fund expenditure or entering into a contract. Finding that that the word “or” as used in Section 712.1 of the Sunshine Act is capable of two meanings, Commonwealth Court found reading “or” as disjunctive in that context was contrary to the intent of the General Assembly and would produce an absurd result, concluding that:
In his March 17, 2021 Memorandum, State Senator Patrick J. Stefano (Senator Stefano) represented to “[a]ll Senate members[,]” that he would be introducing legislation
[t]o strengthen the Sunshine Act’s intent and ensure that the public can be fully informed when following governmental proceedings, this legislation … will require that agencies make their meeting agendas available to the public. Further, once the agenda has been finalized and posted for the public the agency may not take any official action on any item that is not listed on the notice, except in emergency situations or to consider matters that are de minimis in nature.
R.R. at 40a (bold and underline emphasis added). Senator Stefano thereafter introduced SB 554, entitled: “An Act amending Title 65 (Public Officers) of the Pennsylvania Consolidated Statutes, in open meetings, further providing for public notice and providing for notification of agency business required and exceptions.”
Consistent with Senator Stefano’s statement in the March 17, 2021 Memorandum, Section 712.1 subsection (b) of the Sunshine Act addresses “emergency situations,” and subsections (c) and (d) expressly refer to “matters that are de minimis in nature” and do not involve the expenditure of funds or entering into a contract. R.R. at 40a. Subsection (e) differs in that it does not reference either “emergency situations” or “matters that are de minimis in nature” and does not involve the expenditure of funds or entering into a contract. Id.
Section 712.1 subsections (b), (c), and (d) of the Sunshine Act differ from subsection (e) in that each of the former specify that an “agency may take official action” when the circumstances in subsections (b), (c), and (d) arise, 65 Pa.C.S. § 712.1(b), (c), (d), without mandating how the agency must go about amending the agenda to include those changes. Conversely, subsection (e) describes how the agency may add agency business to the agenda at a meeting, without in any way limiting the situations in which an agency may do so. See 65 Pa.C.S. § 712.1(e). In addition, subsection (e) specifies the procedure an agency must follow to amend the agenda during the meeting, making it akin to subsection (f), which specifies the procedure an agency must follow relative to an agenda change after the meeting, i.e., requiring inclusion of the amendment in the meeting minutes. See 65 Pa.C.S. § 712.1(f).
Finally, interpreting Section 712.1(e) of the Sunshine Act as a fourth exception would allow Section 712.1(e) of the Sunshine Act to swallow the entire rule that the agency shall post the agenda 24 hours in advance of a meeting. Section 712.1(e) of the Sunshine Act would allow an agency, without advance public notice, to amend its agenda and take official action on any matter – including those that are not de minimis and involve the expenditure of funds and/or entering into a contract – at any meeting, as long as the agency majority agrees. There would be no reason for the General Assembly to have included subsections (b), (c), and (d) in Section 712.1 of the Sunshine Act; they would be mere surplusage. Moreover, such a result would be absurd in light of the specificity the General Assembly included in Section 712.1(b), (c), and (d) of the Sunshine Act, and the General Assembly’s clear intention to generally prohibit last-minute agenda changes so that the public has proper advance notice and the opportunity to attend meetings where decisions on fund expenditures and/or contracts are made.
Based on this Court’s reading, Section 712.1 of the Sunshine Act offers three exceptions to the general prohibition that allow agency action on matters not previously listed in the meeting agenda – in cases of (1) emergency business, (2) de minimis business not involving fund expenditure or entering into a contract that arises within the 24 hours preceding the meeting, and (3) de minimis business raised by a resident/taxpayer during the meeting that does not involve fund expenditure or entering into a contract. See 65 Pa.C.S. § 712.1(b)-(d). Like Section 712.1(f) of the Sunshine Act, Section 712.1(e) of the Sunshine Act is a procedural mechanism instructing the agency about how to go about publicly amending a meeting agenda when one of the three exceptions in Section 712.1 of the Sunshine Act applies. Unless one of the three listed exceptions applied, the School Board could not vote on the CBA at the October 26, 2021 meeting.
Slip op. at 12-15 (emphasis in original).
While concurring as to the result, Judge McCullough dissented as to the majority’s interpretation of Section 712.1, opining that:
Subsection 712.1(e), which does not reference any of the exceptions in Subsections 712.1(b)-(d), provides that an agency “may take official action” on a matter that is added to the agenda by majority vote of all the agency members present at the meeting. The reasons for the amendment must be announced prior to any vote on the amendment and, if the amendment is successful, the revised agenda must be posted on the agency’s website and at the agency’s office the day after the meeting. Subsection 712.1(e) is drafted in permissive, not mandatory, terms, and it does not require an item of proposed business to first satisfy the criteria under one of the exceptions in Subsections 712.1(b)-(d). It is a standalone, remedial exception that permits the agency to correct whatever caused an item of business to be omitted from the agenda published in accordance with Subsection 709(c.1).
Finally, under Subsection 712.1(f), if an agenda is amended during an agency meeting and the agency acts on the added items of business, the agency must publish the amended agenda by the next business day, and the minutes must reflect “the substance of the matter added, the vote on the addition, and the announced reasons for the addition.” 65 Pa. C.S. § 712.1(f). Subsection 712.1(f), by its plain language, is not a prerequisite to official action under Subsections 712.1(b)-(d). It imposes after-the-fact requirements for when an agency both amends its agenda and takes official action on the amendments, which can only occur through the mechanism in Subsection 712.1(e). Thus, although Subsection 712.1(f) refers to amendments “under this section,” that language can plausibly reference only Subsection 712.1(e). Where an agency takes official action under Subsections 712.1(b)-(d), the agency technically need not thereafter comply with Subsection 712.1(f). That does not mean, however, that there would be no record of agency action taken under Subsections 712.1(b)-(d). Rather, the action would, as a matter of course, be reflected in the agency minutes prepared and later approved for that meeting. See Section 706 of the Sunshine Act, 65 Pa. C.S. § 706.6
Although the Majority acknowledges that we must read a statute to ascertain and effectuate the intention of the General Assembly as encased in the statute’s plain language, the Majority nevertheless concludes that the word “or” in Subsection 712.1(a) is capable of more than one meaning and is, therefore, ambiguous. (Majority, op. at 247.) The Majority bases its conclusion, in large part, on an academic distinction between “exclusive” and “inclusive” disjunctions, both of which the Majority concludes could be intended for the word “or” in Subsection 712.1(a). The Majority then references a small excerpt of legislative history to interpret “or” to actually mean “and,” which it concludes is necessary to further legislative intent and avoid absurd results. Id. But, as shown above, there is no potential double meaning for “or” in Subsection 712.1(a) if the provisions of Subsections 712.1(b)-(e) are parsed carefully and interpreted as they are written. Each serves a distinct purpose, and the intent of the General Assembly in enacting four separate exceptions to the public notice requirement is, I believe, manifest.
Slip op. at PAM-7 – PAM-9. Noting that “only the interpretation and application of Section 712.1 as it is written, and not as judicially modified, will express the intent of the General Assembly and avoid results that could be viewed as absurd and nonsensical,” Judge McCullough concluded:
Clearly there are irregularities in how Section 712.1 has been drafted and enacted by the General Assembly. The Majority offers what otherwise would be a rational method of creating exceptions to Subsection 709(c.1)’s publication requirements. Nevertheless, and notwithstanding that the Majority offers an interpretation reflecting what the General Assembly might have intended, “[i]t is not unknown for a statute to contain words which are contrary to legislative intent. Where such text is clear and unambiguous, we are generally not at liberty to overlook the plain wording in deference to what the [l]egislature clearly meant to say.” Vellon, 292 A.3d at 894 (Mundy, J., concurring) (citation omitted) (emphasis in original). Accordingly, I would apply Subsections 712.1(a)-(e) of the Sunshine Act as they are written and conclude that Appellee Parkland School District satisfied the independent exception to the Subsection 709(c.1) publication requirement as enacted by the General Assembly in Subsection 712.1(e).
Slip op. at PAM-9 – PAM-10.
The Pennsylvania Supreme Court granted allocatur to consider the following issue:
Did the Commonwealth Court err as a matter of law in finding that Section 712.1 of the Pennsylvania Sunshine Act only provides three (3) exceptions to the requirement that an agency provide 24 hours’ notice of an agenda prior to a public meeting, when the clear language of the statute provides for four (4) exceptions?
For more information, contact Kevin McKeon or Dennis Whitaker.