Amy Sisk / StateImpact Pennsylvania
Benjamin Pontz
Pennsylvania has about 6,000 governmental agencies and elected bodies, responsible for operating everything from county government to school systems and historic architectural reviews. All are required to comply with the state’s Sunshine Law, which requires that deliberations and official action be conducted in meetings that are open to the public.
But with the coronavirus sparking orders to stay home and avoid gathering in public, government bodies are entering uncharted water as they consider how to comply with the law.
“We’re really going one day at a time,” Rick Schuettler, Executive Director of the Pennsylvania Municipal League said. “Everybody needs some guidance and direction on this either legislatively or coming from the governor.”
Schuettler says that his organization, which represents Pennsylvania cities, boroughs, townships, home rule communities and towns, is looking for explicit authorization for local governments to have more flexibility in how they conduct meetings. That might include the ability to hold meetings that are closed to the public but recorded for future viewing, allow remote public participation, and even cancel meetings that have no pressing agenda items.
Right now, he says, agencies are approaching the issue on a piecemeal basis and are looking for guidance as to how they can comply with the law and support public health.
Erik Arneson, executive director of the Pennsylvania Office of Open Records, said that it is important for agencies to understand that “the Sunshine Act still applies, agencies will have challenges complying with it, but technology can be used to overcome most of those challenges and it is important that public meetings remain public including public participation.”
His agency, which provides training on the Sunshine Act, has issued guidance to agencies about general best practices, but he acknowledges that vast disparities in resources and technological capabilities will pose challenges.
“This is a very fluid situation that does not lend itself to a one-size-fits-all approach, and agencies should make their best efforts to ensure they meet their obligations under the Sunshine Act bearing in mind that transparency builds trust, particularly in times of crisis,” he said in response to a question posed on his agency’s website.
Thus far, agencies have taken various approaches in how they are holding public meetings.
Some, such as the Adams County Commissioners, have closed their meetings to the public. They are allowing public comment by phone and will record the meetings and post video afterwards.
“We’re trying to avoid people gathering to keep with social distancing,” Adams County Manager Steve Nevada said.
In neighboring York County, members of the public are still permitted to come to commissioners meetings, but are strongly urged to watch meetings through Facebook Live and make comments there or by phone, York County Communications Director Mark Walters said. Video of all York County commissioners meetings also airs on White Rose Community Television.
Some counties are carrying on with in-person meetings. The Lancaster County Commissioners will ask the public to maintain appropriate distance at its Wednesday meeting, but they felt it was important to keep the in-person meeting public.
“We pride ourselves in transparency and openness,” said Joshua Parsons, Chairman of the Board of Commissioners. “It’s a balance. We’re leaning a little more to the public openness side right now than some places, but we think that’s still warranted.”
Franklin County’s Board of Commissioners moved its meeting to a larger venue that allows attendees to spread out more, Chairman Commissioner Dave Keller said. His Board recently began recording video of all of its meetings, and that will continue. He said that very few members of the public usually attend the meetings, so he does not anticipate any problems.
In Montgomery County, which has the second-highest number of confirmed cases of COVID-19 among Pennsylvania counties, members of the public must complete a temperature screening before being admitted to a commissioners meeting and may have to wait in an overflow space to ensure that no more than 10 people are in the meeting room at a time, a release on the county website says.
At the municipal level, where planning commissions, zoning boards, and shade tree commissions abound, many non-essential meetings are being canceled.
In Carlisle, for example, the Historic Architecture and Review Board (HARB) meeting scheduled for next Monday was canceled due to the coronavirus. The borough has not reached a decision about what to do with other meetings, though none are on the schedule this week, Borough Manager Susan Armstrong said.
In Susquehanna Township, all meetings through the end of the month except for a Board of Commissioners’ workshop on Thursday have been canceled. The Thursday meeting will still be open to the public, but several members of the Board will call in using GoToMeeting to participate remotely, Township Manager David Kratzer said.
In compliance with the Sunshine Law, those participating remotely will be able to hear everyone who is at the meeting in person, and those participating in person will be able to hear everyone participating remotely. Kratzer said that the township is looking into technology solutions that could allow the public to participate remotely in the future. He echoed the call for more state guidance.
“How do we continue to meet obligations that are statutorily defined? We’re still working to meet our obligations, but we continue to look for guidance on those issues,” he said, noting that he has reached out to state agencies about various issues and that, while they acknowledge that he is raising valid questions, they have not been able to give clear answers.
Giving local governments more direct guidance is at the heart of a legislative effort in the Pennsylvania House.
A proposal that would provide explicit authorization for agencies to hold meetings remotely when there is a disaster or emergency declaration was adopted unanimously on Tuesday afternoon and could pass the House as soon as Wednesday. The proposal would require:
- All members of a board to be able to speak and hear all speakers
- Public participation via a telecommunication device be permitted “to the extent possible”
- Agencies notify the public in advance of plans to hold meetings under the special rules,
- The meeting be livestreamed, recorded, or, at minimum, that draft minutes be made available within 48 hours of the meeting’s conclusion
Arneson, from the Office of Open Records, says that he knows local agencies have had a lot of questions, that providing more clarity is a “good goal,” and that the concept of having different rules in an emergency makes sense, but he is still working to think through how the language of the bill would work in practice.
“One thing that seems extremely clear in the bill is that it is limited to statewide emergency declarations by the governor and that these provisions would only apply during a time of statewide emergency,” he said. “I think that is an absolutely crucial part of any bill like this.”
Thus far, agencies appear to be making a good faith effort to comply with the Sunshine Law, said Melissa Melewsky, counsel at the Pennsylvania NewsMedia Association.
“What I’m hearing is that they’re making the right gestures to get people notified and giving them the opportunity to participate,” she said. “How that plays out remains to be seen.”
Arneson agrees.
“I’ve been heartened, overall, by the approach of local agencies,” he said. “They are taking the situation seriously, and they are doing their best to make sure that the principles that underlie the Sunshine Act are continued even during the emergency. I suspect that there will come a time when there is an exception to that, but, right now, I think that everybody seems to be doing a very good job of balancing the health emergency with the need to be compliant with the Sunshine Act.”