Act 65, effective August 29, 2021, tightens agenda requirements for school board meetings.
Act 65 of 2021 will amend the Sunshine Act, 65 Pa. C.S. §§701-716, to require the following:
1. All public agencies currently covered under the Sunshine Act must provide notice of agency business on an Agenda, which must include a listing of each matter of agency business that will or may be the subject of deliberation or official action at an agency’s meeting. The Agenda must be posted on the agency’s public website no later than twenty-four (24) hours in advance of the scheduled start time of the meeting. Public agencies that do not have a public website are not required to obtain one; this requirement applies only to agencies that have public websites.
2. School boards must also post the Agenda at the location of the meeting AND at the principal office of the agency.
3. School boards must make copies of the Agenda available to the individuals in attendance at the meeting.
NO AGENCY ACTION MAY BE TAKEN ON ANY MATTER NOT LISTED ON THE AGENDA
Act 65 includes the additional mandate that the covered public agency can take no official action of any matter of agency business that is not listed on the Agenda. Perhaps unsurprising is the fact that the Pennsylvania News Media Association supported this legislation. See Senator Patrick J. Stefano’s co-sponsorship memo, dated March 17, 2021.
As a reminder, the requirements described above are in addition to the public notice requirements already set forth in the Sunshine Act, which include publication of the place, date and time of the meeting in a newspaper of general circulation and posting of the place, date and time of the meeting at the agency’s principal office or the building in which the meeting is held.
There are a few somewhat narrowly defined exceptions to the Agenda requirements described above:
1. Emergency business – A covered public agency is permitted to take official action on a matter of agency business that relates 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. Section 712.1(b).
2. Business arising 24 hours before the meeting – Act 65 sets forth two conditions that must exist for official action to be taken on business matters: (a) the matter must have arisen within the last 24 hours and (b) the matter must be “de minimis” in nature, which means under Act 65 that the matter does not involve spending funds or entering into a contract or agreement.
3. Business arising during the meeting – If a business matter is brought up by a resident or taxpayer at the meeting, an agency is permitted to take official action limited to referring the matter to staff for researching for inclusion on a future meeting agenda. However, if the matter is “de minimis” in nature, as described in the previous paragraph, the agency may take official action on it at the same meeting.
CHANGES TO AN AGENDA
Under Act 65, an agency may add a matter of agency business to an Agenda by a majority vote of those voting members present at the meeting but must announce the reasons for the change(s) to the Agenda at the meeting before any vote is taken to make a change to the Agenda.
After announcing the reasons for the addition of a matter to the Agenda at the meeting and taking a vote supported by a majority of those voting officials present, the Agency may take official action on the matter added to the Agenda.
After the meeting, the agency must amend the Agenda and post the amended Agenda on their public website, if available. The agency must also post the amended Agenda at their principal office location. Both actions must be taken no later than the first business day following the meeting.
MINUTES OF THE MEETING AT WHICH AGENDA AMENDED
When agency action is taken on a matter that is added to an Agenda for the reasons permitted under Act 65, the minutes of the meeting must reflect the substance of the matter added, the announced reason for the addition, and the vote on the addition.
Note: None of the above requirements apply to an executive session convened under the Sunshine Act, a working session with auditors as long as official action is taken at a public meeting or to a conference at which no deliberation of agency business may occur. 65 Pa. C.S. §§707, 708.
Bottom Line for Schools
The practice of adding last minute agenda items will be effectively ended by the Act 65 amendments. With the exception of a true “emergency,” no item involving expenditures of funds entering into a contract may be placed on the meeting agenda for action at the last minute.
The Act 65 amendments place a great burden on administration to have agenda items ready and published a full 24 hours before the board meeting.
School boards should amend their meeting policies consistent with Act 65. Meeting agendas should affirmatively adopt the written agenda. Agenda makers may want to list all possible action items, ready or not. Last minute items can be removed from the agenda, but not added.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.