UPDATED: Public Meetings and Open Records for Municipalities in the Age of the Coronavirus (COVID-19)

We at Gross McGinley, LLP have a lot of experience with municipal law. Our attorneys collectively have decades of experience in this area of the law, but it’s fair to say that none of us have had to deal with the unfortunate events that have been imposed upon us by the Coronavirus (COVID-19). The restrictions of social distancing are burdensome and causing dramatic changes in almost everyone’s life by requiring the closure of businesses and social gatherings.

What is required for municipal meetings in PA?

That said, municipal governments do not have the ability to simply “shut down” like many other businesses.  Municipalities, Zoning Boards, Planning Commissions and Municipal Authorities provide vital services that are required by their respective residents and thus cannot simply shut down. Many of these municipal bodies are required to hold Public Meetings under Pennsylvania’s open records act, commonly referred to as the “Sunshine Act” (65 Pa.C.S.A. § 701 et seq.).  The Sunshine Act requires that many “Agencies” as defined by the Sunshine Act, such as Municipalities and their respective Boards, Commissions and Authorities, hold public meetings which are held at designated times as advertised in Public Notices.

Emergency provisions for municipalities

However, there is a provision under the Pennsylvania Emergency Management Services Code (35 Pa.C.S.A. § 7101 et seq.) which allows for the suspension of bureaucratic “red tape” under emergency circumstances. Specifically, 35 Pa.C.S.A. § 7501(d) states that local government agencies are:

…[A]uthorized to exercise the powers vested under this section in the light of the exigencies of the emergency situation without regard to time-consuming procedures and formalities prescribed by law (excepting mandatory constitutional requirements) pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, the levying of taxes and the appropriation and expenditure of public funds.

This provision requires an emergency decree by the Governor of the Commonwealth to be activated (presumably to avoid local entities from using this provision to avoid public formalities).  Based on the declaration of Governor Wolf on March 6, 2020, as shown here, this provision of the Emergency Management Services Code has been activated.

Upholding the Sunshine Act

However, the suspension of these formalities does not alleviate the need for public interaction, or relieve a municipal entity from the obligations of the Sunshine Act.  Because of the language contained in 65 Pa.C.S.A. § 710.1 requires public participation in these meetings, the meeting notices should contain information allowing for some form of electronic interaction. There are several services available, but it is recommended that whatever service is used by the municipal entity be advertised in the Notice of Hearing as required by 65 Pa.C.S.A. § 709.  Additionally, all votes should be recorded as required under 65 Pa.C.S.A. § 705 and the meeting should be kept as a record (presumably this can be recorded by the software being used for two-way interactions, but if not, some record must be kept) pursuant to 65 Pa.C.S.A. § 706.

The Open Records Office of the Commonwealth of Pennsylvania has come to a similar conclusion and has published the following article supporting our research and conclusions on this matter.  That article can be found here.

Will legislation be added or updated?

Pennsylvania had been considering an amendment to House Bill 1564 which would have provided additional clarity to this issue.  However, many people in the Senate believe that the existing statute already provides the authority to meet and work remotely.

Based on this, the Senate, at this time will not to move forward with HB 1564, which would have dealt with this issue explicitly. The following additional guidance has been provided, and contains good advice as to general practices of remote meetings:

• Consult with your solicitor and/or association
• Consider the Governor’s Declaration has Commonwealth-wide impact
• Consider Title 35 Section 7501
• Consider guidance issued by Erik Arneson at the Office of Open Records
• Consider the attached communication from the Pennsylvania District Attorney’s Association

Moreover, as it appears HB 1564 is not moving forward, there will be no additional legislation addressing permitting issues which may be problematic for many municipalities or developers.  At this time, legislation addressing permitting, much like Pennsylvania’s Development Permit Extension Act, originally passed in 2010 and amended in 2012 and 2013 is not being considered.

Therefore, all municipal permits will be subject to the requirements of the Governor’s March 19, 2020 Essential Business Order.  Any extensions or requests should be processed under the municipality’s development Ordinances.

Jason A. Ulrich, Senior Counsel, provides legal counsel on a variety of municipal matters. He has served in the capacity of Solicitor to several municipal entities throughout Pennsylvania.

John F. “Jack” Gross, Managing Partner, counsels businesses and municipalities in general and complex matters pertaining to day-to-day operations.