A Pennsylvania appeals court has ruled that the South Hanover Township Board of Supervisors did not violate the Sunshine Act when it appointed an individual to fill a vacancy where board members have informed discussions about who to approve.
The court’s opinion offers guidance to public school boards that may find themselves dealing with similar issues. For example, the court held that informal discussions about appointments for elected offices do not need to occur at open meetings and that official action taken at a later meeting cures a prior Sunshine Act violation.
Read more about Shipman v. South Hanover Township Board of Supervisors et al., No. 401 C.D. 2022 (Commw. Ct. Feb. 17, 2023, unpublished opinion.)
Resident Sues Over Appointment of Elected Official
On Nov. 23, 2021, a supervisor resigned from the South Hanover Township Board of Supervisors. The board announced it would accept letters of interest from township residents until the end of the year.
Henry Shipman submitted a letter of interest less than a week later. However, the board appointed Jack Studer to fill the position at its Dec. 14 public meeting following an executive session and without public deliberation over the candidates. When Shipman questioned the selection process, the board allegedly told him that the four supervisors had discussed and made the selection in informal telephone calls.
Ultimately, Shipman sued the board, alleging it violated the Sunshine Act when it appointed Studer. The Dauphin County Court of Common Pleas dismissed the complaint with prejudice after considering the board’s preliminary objections.
Public Vote Cured Any Violation
Shipman appealed, and the Pennsylvania Commonwealth Court agreed with the trial court’s decision. The appeals court concluded that Shipman failed to state a cause of action under the Sunshine Act because even though the deliberations did not occur publicly, the voting did.
On Jan. 3, 2022, South Hanover had published its agenda for a reorganization meeting and noted its proposal to appoint someone to fill the vacant position. The board did not request letters of interest and identified Studer as the only person to appoint. A public vote was held for Studer.
The court explained that “official action taken at a later, open meeting cures a prior violation of the Sunshine Act.”
The court also said the board did not violate the open meetings law by engaging in informal phone conversations about filling the vacancy in advance.
“Pennsylvania courts have concluded that straw votes, informal discussions, and information-gathering are not necessarily official actions that must take place at open meetings under the Sunshine Act,” the opinion said.
Bottom Line for Schools
Public school boards should ensure that they fill vacancies in elected offices and conduct other official business in strict accordance with Pennsylvania law. Although the court concluded that informal discussions are not necessarily official actions that must take place at an open meeting, the law remains that boards cannot “meet” in private to discuss filling a vacancy for an elected office.
Questions about the process of filling board vacancies should be directed to the board solicitor or a member of the KingSpry Education Law Practice Group.
