PA Supreme Court Identifies Broad Exception to Ban Against Voting on Items Not Included on Agenda

In 2021, the Pennsylvania Sunshine Act was amended by the General Assembly to provide additional notice requirements for public meetings. Under that amendment and Section 709(c.1), an agency must notify the public of business to be considered at an upcoming public meeting by publishing it on an agenda posted no fewer than 24 hours prior to the meeting. Further, under Section 712.1 of the Act, an agency is prohibited from taking action on business not included on an agenda published pursuant to Section 709(c.1). 

There are exceptions to Section 712.1’s general prohibition. Under Section 712.1(a), the General Assembly stated that the prohibition would not apply in cases arising under subsections (b), (c), (d), or (e).

• Subsection (b) provides an agency may act on business not published pursuant to Section 709(c.1) if the item relates to a real or potential emergency. 
• Subsection (c) provides an agency may act on business not published pursuant to Section 709(c.1) if the item arose within the 24 hours prior to the meeting and the item is de minimis. 
• Subsection (d) provides an agency may act on business not published pursuant to Section 709(c.1) if the item is brought to the agency’s attention by a resident or taxpayer during the public meeting and the item is de minimis or does not involve the expenditure of funds or entering into a contract or agreement.
• Subsection 712.1(e) provides, “upon majority vote of the individuals present and voting during the conduct of a meeting, an agency may add a matter of agency business to the agenda. …The agency may subsequently take official action on the matter added to the agenda.” This subsection was largely interpreted not as a separate exception to Section 712.1, but rather as the mechanism to effectuate an exception properly arising under subsections (b)-(d).
  

However, in its recent decision of Coleman v. Parkland School District, the Pennsylvania Supreme Court held this is not the case. Instead, the Court determined subsection (e) is a separate exception to Section 712.1, calling it “the is the broadest exception.” Under the Court’s holding, subsection (e) allows for any business to be added to the agenda if the agency follows all required procedural steps to do so. Those steps include a preceding vote to amend the agenda and announcement of the reasons for the change. After the preceding vote and announcement are made, the substantive vote may be taken. Thereafter, an Agency must post an amended agenda no later than the next business day following the meeting as well as reflect the amendment in the meeting minutes. 

Finally, in Coleman, the Court went on to explain that a preceding vote to amend the agenda is not necessary for an exception arising under subsections (b)-(d) writing, “under the first three exceptions, an agency is permitted to take official action under the circumstances described without any requirement to retroactively modify the meeting’s agenda for post hoc publication by majority vote.”

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