December 17, 2013 decision in Smith v. Township of Richmond affirms Commonwealth Court ruling in favor of Township and hones in on the nature of “deliberations.” (See MM September 2012 for additional details on the case.)
What Happened
In 2010, the Township of Richmond was involved in litigation with a cement company and a citizen group regarding the expansion of a limestone quarry into the township. At its March meeting, the township solicitor announce a planned series of “executive sessions” at which the Board of Supervisors would ask questions of various individuals and entities to learn more about the quarrying process and associated environmental concerns. At the April meeting of the Supervisors, the solicitor confirmed that the meetings had occurred, and that no decision had been made. The Board appointed a representative to accompany the solicitor in settlement discussions and directed them to report back to the Board. In May, a formal settlement proposal from the cement company was read during the Board’s public meeting. Following extensive public discussion, the Board voted to approve the proposal. Thereafter, Mr. Smith filed a civil complaint seeking a declaratory judgment that the Township had violated the Sunshine Act, requesting an injunction against future violations, and asking that the Board’s settlement action be invalidated. The discovery process established that all parties to the four private discussions participated with the sole purpose of obtaining information for use in making a future decision. Mr. Smith was unable to produce direct evidence that any deliberation or decision–making had occurred, although there was a brief exchange between two of the supervisors over the advisability of settling the quarry litigation.
What The Court Said
The Supreme Court granted the appeal solely to determine whether the Sunshine Act’s definition of “deliberations” is implicated when a public entity meets in private with outside entities to discuss a litigation matter. The Court determined that the Sunshine Act contains no prohibition against private (non-public) information-gathering sessions, even if they are attended by a quorum, so long as no deliberations occur. The Sunshine Law defines “deliberation” as “the discussion of agency business held for the purpose of making a decision.” Thus, the Court said, Board members may hold a private discussion so long as the discussion is not held for the purpose of making a decision. Examples of “deliberations” highlighted by the court included weighing the pros and cons of alternatives, and comparing various available options. Thus, even though the township obtained useful information from the private discussions at issue, because the information was to be used for purposes of a future decision, which ultimately was made in public, no violation of the law occurred. The Court reviewed and compared the Richmond Township process with that presented in a 2010 Commonwealth Court decision, Trib Total Media Inc. v. Highlands School District. In Trib Total Media, a school district met with its solicitor and opposing counsel to discuss settlement of a tax assessmentmatter. The meeting was dubbed an “executive session” for the purpose of discussing litigation. (The Trib case is discussed in detail in SLB 52.) Because the content and purpose of the meeting were admittedly targeted toward negotiating a settlement of the underlying matter, the Commonwealth Court determined that the litigation exception to the open meeting requirement did not apply. In contrast, the meetings in the Richmond Township case were explicitly designed to gather information for use in future public deliberations.
What This Means
Public entities may hold fact-finding meetings in private sessions. This decision overtly acknowledges that public officials have a duty to be informed, and may seek information outside of the public meeting process. The Court’s decision is not a departure from the Sunshine Law’s stated purpose of transparency in government decision making. Its conclusions are firmly rooted in the plain language of the statute that requires “official action” and “deliberation” to be done at a public meeting. Official actions by definition are decisions of the agency and “deliberation” is the discussion of agency business for the purpose of making a decision. “Discussion” by definition is formal consideration or debate. The Board may seek information from a consultant, administrator, solicitor or even a single board member without an exchange of ideas on an issue to be decided by the board in a private meeting so long as the private meeting is held for a non-deliberative purpose and no decisions or deliberations are made during the meeting. Lastly, the Court noted that public skepticism over private meetings is to be expected. Thus, public entities that hold private information-gathering meetings may anticipate public challenges to the validity of that process. Any public entity choosing to hold a private information-gathering session should seek the advice of counsel before proceeding.
This Municipal Minute is a publication of the KingSpry Municipal Law Practice Group. It is meant to be informational and does not constitute legal advice.
