Public meeting agendas: a new requirement for officials, not a new limitation on the public

Melissa Melewsky
Pennsylvania NewsMedia Association
Southern York County School District board holds a special meeting, regarding reinstating a mask mandate, at Susquehannock High School in Shrewsbury Township, Thursday, Aug. 12, 2021. After comments from more than 35 residents, the board would vote 5-4 to reinstate the mandate. Dawn J. Sagert photo

As the new year dawns, we at the Pennsylvania NewsMedia Association look back at another pandemic-driven year in which public meetings played a central role for our members and Pennsylvanians. Also in 2021 the Sunshine Act got a few much-needed updates. As many already know, the Sunshine Act requires public agencies to advertise and hold public meetings when they deliberate agency business or take a vote. Journalists and citizens need to take advantage of those updates and push back if they are applied inappropriately.

As in-house counsel for PNA, I receive between 500 and 700 Sunshine Act-related calls every year from journalists having experiencing issues with public meetings. Last year, those numbers increased significantly as members of the public reached out for help as they struggled to understand the law and what happens when it’s not followed. You see, there is no statewide agency that oversees Sunshine Act compliance, leaving journalists — the eyes and ears of the community — and citizens with few options other than a lawsuit when a problem arises.

More:Did York County violate the Sunshine Law with prison contract vote?

More:Experts: York County officials show 'fundamental misunderstanding' of Sunshine Act

More:YCIDA looks to have violated state Sunshine Act, again

A common problem in 2021 involved public comment. The law requires agencies to provide a meaningful opportunity for public comment at every public meeting on matters that are or may be before the board. That’s a very broad requirement intended to promote public participation because the law recognizes that government functions best when it is aided by an informed and actively involved citizenry. Too often I hear about agencies that refuse to allow public comment or impose unreasonable limitations, including the most common: restricting public comment to agenda items only.

That kind of limitation is particularly problematic considering the text and purpose of the law and the amendments added in 2021.

Recognizing some of the shortcomings in the law, the General Assembly unanimously amended the Sunshine Act in 2021 to require agencies to provide meeting agendas at least 24 hours before a public meeting. The agenda must include all issues that will be discussed or acted upon and, with few exceptions, limits the issues public officials can discuss or act upon. This change is intended to promote public attendance and participation at public meetings by letting folks know what’s going to be discussed.

Prior to this change, there was no law that required agencies to tell people what would be discussed at public meetings (and many didn’t), leaving folks in the dark. That discouraged people from taking time from their busy lives to participate in local government. The new agenda requirement is intended to fix that problem.

Despite the clear intent and language of the law, I’ve seen some agencies apply the new agenda requirement to limit public comment only to those the agency chooses to put on the agenda. That interpretation simply cannot be squared with the law, which has always required broad public comment rights. Changes were made to benefit the public, not impose limits on its right to participate. Moreover, the agenda requirements and limitations apply to public officials, not the general public.

The Sunshine Act has always allowed public comment on matters “that are or may be” before a board. Matters that “are” before a board would be on the agenda, but matters that “may be” before a board encompass the whole of the agency’s function. The public has the right to make its voice heard on agenda items, and it also has the right to bring new issues to the attention of elected officials during a public meeting. In fact, that is often the ideal situation to make elected officials aware because it puts them on notice and makes others cognizant, as well. This fosters more public comment by allowing others to weigh in; it creates accountability because the issue has been aired publicly and, as a result, will be widely known in the community.

Many agencies have long acknowledged the legal and commonsense justifications for broad public comment policies, and have done so for years, by having two public comment periods: one for agenda items and one for non-agenda items. This practice generally works well in fostering public participation and bringing new information to elected officials’ attention and in no way conflicts with the agenda requirements of the law. In fact, this practice aids the agenda requirement by allowing public officials to hear about new issues and include them on future agendas for detailed deliberation and official action.

In the coming year, news organizations will watch this issue carefully and report to the communities they serve. If you are a public official sitting on a board that limits public comment to agenda items only, you should carefully consider the requirements of the law and its potential penalties. Public officials should advocate for and implement changes that welcome and promote public comment consistent with the letter and intent of the law. If your local agency limits public comment to agenda items only, you should consider your rights carefully and advocate for change, both formally and informally. The law protects your ability to witness and participate in government decision-making, and it allows for legal challenges if local agencies do not comply.

— The Pennsylvania NewsMedia Association, based in Harrisburg, is the official trade organization for more than 350 print, digital and news media-related members statewide.