On August 5, 2010, the Pennsylvania Commonwealth Court issued an opinion regarding who may attend executive sessions held to discuss litigation matters. The Sunshine Act, 65 Pa, C.S. §§701-716, provides five exemptions for agencies to hold meetings outside of public view. Section 708(a)(4) of the Sunshine Act exempts discussions of ongoing and potential litigation matters as follows:

(a) Purpose. An agency may hold an executive session for one or more of the following reasons:

(4) To consult with its attorney or other professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed.

The Sunshine Act’s definition of “executive session” authorizes an agency to “admit those persons necessary for the purpose of the meeting”.

In Trib Total Media, Inc. V. Highlands School District, No. 1588 CD. 2009 the District met in executive session with a property owner to discuss the owner’s tax assessment appeal. A news-reporting agency alleged the meeting was in violation of the Sunshine Act and filed for a permanent injunction to prohibit similar meetings in executive session. The Commonwealth Court agreed with the newspapers reasoning that the plain language of Section 708(a)( 4) not only sets forth a specific limited purpose of the meeting, consultation of litigation matters, but, specifically identifies only the agency’s attorney and other professional advisors with whom it may consult. Furthermore, the Commonwealth Court rejected the argument that as long as the District’s solicitor was present, the meeting did not violate the Sunshine Act. The Commonwealth Court reasoned that Section 708( a)( 4) was to authorize private meetings to discuss litigation strategy covered by the attorney client privilege. By admitting a third party, the privilege was waived. Furthermore, the Commonwealth Court dismissed the notion that private conversations between a litigant and the agency’s governing body are necessary to settle litigation matters. The Commonwealth Court reasoned that such private discussions could be performed by counsel and if needed, the attendance of a representative of the governing body. The Commonwealth Court held that Section 708(a)( 4) specifically limits the purpose of the executive session to consultation, and, further specifies the consultation may only be with the agency’s attorney and other professional advisors. Therefore, by admitting the property owner to the executive session, the District violated the Sunshine Act.

Conclusion
The decision clearly prohibits a third party’s admittance to an executive session to discuss litigation matters. Therefore, initiated and threatened litigation can no longer be used as a justification to hold a private meeting with a third party. Such meetings should be held in public, or in private with representatives of the governing body and solicitor. The solicitor and the representative(s) can then consult with the entire governing body regarding the private meeting in executive session under Section 708(a)(4), consistent with the Sunshine Act. Furthermore, by limiting the purpose of the executive session under this exception to consultation with attorneys and advisors, the governing body should avoid discussion of litigation matters in executive session when the agency’s solicitor or the appropriate professional advisor is not in attendance.

Vincent M. Pompo
Voice (610) 430-8000
Fax (610) 692-6210
vpompo@lambmcerlane.com

Robert T. McClintock
Voice (610) 430-8000
Fax (610) 692-6210
bmcclintock@lambmcerlane.com