Subchapter C. INTERPRETATION OF THE SUNSHINE ACT OF 1986 AS APPLIED TO EXECUTIVE AGENCIES
Sec.
1.41. Requirements.
1.42. Agencies.
1.43. Official action.
1.44. Deliberations.
1.45. Executive sessions.
1.46. Personnel matters.
1.47. Labor relations.
1.48. Purchase or lease of property.
1.49. Consultation with professional advisors.
1.50. Privileged, confidential, investigatory and quasi-judicial matters.
1.51. Academic admission or standing.
1.52. Minutes.
1.53. Notice.
1.54. Emergency meetings.
1.55. Rules and regulations.
1.56. Use of recording devices.
1.57. Conferences.
1.58. Administrative action.
1.59. Exemptions.
1.60. Violations.
1.61. Force and effect.
Source The provisions of this Subchapter C adopted October 22, 1976, 6 Pa.B. 2640, reserved by Executive Order 1983-3, dated March 15, 1983, 13 Pa.B. 1575; readopted January 16, 1987, effective January 17, 1987, 17 Pa.B. 286, unless otherwise noted. Immediately preceding text appears at serial pages (113742) to (113743).
§ 1.41. Requirements.
(a) General provisions. A meeting of an agency at which official action or deliberations by a quorum of the members of an agency take place shall be open to the public unless exempt from this subchapter or closed for an executive session. The agencies official actions and deliberations which are covered by this subchapter are defined by § § 1.42, 1.43 and 1.44 (relating to agencies; officialaction; and deliberations). Exemptions from this subchapter are set forth in subsection (i), and executive sessions may be closed as provided by § 1.45 (relatingto executive sessions) .
(b) Voting. Votes taken at open meetings shall be publicly cast and, in the case of role call votes, recorded in the minutes of the agency. Agencies may take official action by notational voting as provided by § 1.43(c).
(c) Minutes. Written minutes of open meetings prepared as set forth in § 1.52 (relating to minutes) shall be kept and made available as a public record for examination and copying.
(d) Public notice. Public notice in the manner provided by § 1.53 (relating to notice) shall be given at least 3 days in advance of an agency’s first regular meeting of each calendar or fiscal year and at least 24 hours in advance of a special meeting or rescheduled meeting.
(e) Emergency meetings. Advance public notice is not required in the case of an emergency meeting as provided by § 1.54 (relating to emergency meetings).
(f) Schedule of regular meetings. An agency shall give public notice of their schedule of regular meetings for the calendar or fiscal year, either prior to or immediately following the agency’s first regular meeting.
(g) Rules of order. An agency may adopt rules and regulations necessary for the conduct of meetings and the preservation of order as provided by § 1.55 (relating to rules and regulations).
(h) Recording devices. Subject to rules and regulations adopted by an agency, as provided by § 1.56 (relating to use of recording devices), a person attending an open meeting of the agency has the right to use recording devices to record proceedings of the meeting.
(i) Exemptions. An agency is not required to conduct open meetings to hold conferences under § 1.57 (relating to conferences), to take administrative action as provided by § 1.58 (relating to administrative action) or, as set forth in § 1.59 (relating to exemptions), to take official action or conduct deliberations regarding a matter which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including the investigation of violations of law and quasi-judicial deliberations.
(j) Meeting locations. An agency shall conduct open meetings at locations reasonably accessible by members of the public and with adequate seating and other facilities to allow effective public observation and, if appropriate, participation in agency deliberations. A meeting site shall be accessible to handicapped individuals and shall either be within a public building or at a location fully open and available to members of the general public. A meeting may not be conducted at a private club or another location not customarily accessible by members of the public.
(k) Violations. An agency is not authorized to conduct formal adjudications of complaints regarding alleged violations of this subchapter, but if an agencydetermines that it has violated this subchapter, the agency may cure the defective procedure in the manner provided by § 1.60 (relating to violations).
§ 1.42. Agencies.
(a) General provisions. This subchapter applies to an agency of the executive branch of the government of the Commonwealth which:
(1) Is created by or under a statute.
(2) Performs, or has for its purpose the performance of essential governmental functions.
(3) Exercises governmental functions through the joint action of two or more individual members of the agency.
(4) Takes official action.
(b) Advisory agencies. This subchapter applies to an agency of the executive branch which exercises solely advisory functions to the extent the rendering of advice by the agency affects substantive or procedural, personal or property rights, privileges, immunities, duties, liabilities or obligations of the public or a part thereof. The rendering of advice has such effect in situations including, but not limited to, those in which the offering of advice is legally necessary for the exercise of essential governmental functions by another agency or by law forms a part of a legally reviewable record for subsequent adjudicative or regulatory proceedings.
(c) Joint actions. This subchapter applies to a group composed of two or more agency heads or public officials which by law perform essential governmental functions through the joint action of its members. This subchapter does not apply to the group to the extent its members are separately required to review, approve or offer advice, comment or consultation regarding an official action and do not constitute a single legal entity for the purpose of jointly taking the action.
(d) Governor’s Cabinet. This subchapter applies to the Governor’s Cabinet when meeting on official policymaking business. Official policymaking business refers to discussions, deliberations or decisions vested in the cabinet by law or executive order with regard to the formation, endorsement, ratification or approval of a program or general plan for the conduct of governmental functions. Except as otherwise provided by this subchapter, this subchapter applies to meetings of the Human Resources Committee of the Cabinet, the Economic Development Committee of the Cabinet and the Governor’s Task Force on Regulatory Relief. This subchapter does not apply to informal meetings of the cabinet, such as breakfasts, luncheons, dinners and receptions conducted primarily to exchange information regarding the general administration of State government or for predominantly social purposes.
(e) Committees. This subchapter applies to a committee composed from the membership of an agency if the committee has been authorized by the agency to take official action on behalf of the agency or to render advice to the agency onmatters of agency business. Advisory committees are subject to this subchapter to the same extent and subject to the same limitations as advisory agencies.
(f) Departments. Departments and other agencies of the executive branch headed by a single executive officer and meetings between department heads and other officers, investigators and employes for the purpose of making determinations or soliciting information are not subject to this subchapter.
(g) Staff meetings. This subchapter applies to a committee or group of agency staff members authorized by law to take official action through the joint action of its members. This subchapter does not apply to a committee or group of staff members providing advice or assistance to the agency or authorized by the agency to take official action.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements).
§ 1.43. Official action.
(a) Covered activities. Official action by a quorum of the members of an agency shall be subject to this subchapter if the members of the agency at a meeting vote or otherwise make a decision regarding one of the following:
(1) The adoption of recommendations made under a law or executive order.
(2) The establishment of policies of general or widespread prospective applicability.
(3) The adoption of a motion, proposal, resolution, rule, regulation, report or order.
(4) The creation of liability by contract or otherwise.
(5) The adjudication of rights, duties or responsibilities.
(b) Hearings. This subchapter does not apply to the conduct of investigative or adjudicative hearings at which neither formal action nor deliberations take place. The hearings shall be governed by 2 Pa.C.S. (relating to administrative law and procedure) or other appropriate Commonwealth statutes.
(c) Notational voting.
(1) Unless otherwise provided by law, the members of an agency may cast votes by the use of notational or round-robin voting whereby members vote individually and separately upon a recommended written motion, proposal, resolution, rule, regulation, ordinance, report or order prepared by the staff or an individual member of the agency and circulated for approval to the members of the agency.
(2) An agency may utilize notational voting only to expedite decision making or to remove uncontested or noncontroversial matters from the agenda of public meetings in order to facilitate public deliberations of contested or significant items. An agency may not utilize notational voting for the purpose of avoiding the public discussion of significant issues or to conceal the actual casting of votes by members of an agency at an open meeting.
(3) An agency may utilize notational voting for the purpose of adopting a written opinion which explains or documents a decision made by the agency at an open meeting.
(4) Notational votes may not be cast during a recess called during an open meeting.
(5) At the first public meeting following the making of decisions or the adoption of written opinions by notational voting, an announcement shall be made that matters have been considered by notational voting and the substance of official actions taken by notational voting and the record of votes cast by individual members upon the matters shall be entered upon the minutes of the meeting.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); and 4 Pa. Code § 1.52 (relating to minutes).
§ 1.44. Deliberations.
(a) Scope. Deliberations by a quorum of the members of an agency shall be subject to this subchapter if the members of the agency discuss agency business for the purpose of making a decision.
(b) Presumption. It shall be presumed that whenever a quorum of an agency meets by prearrangement to discuss agency business that the meeting occurs for the purpose of making a decision unless based upon clear and convincing evidence the meeting does not satisfy the criteria in subsection (b).
(c) Covered discussions. Discussions are held for the purpose of making a decision if the following exist:
(1) The agency is scheduled to take or reasonably anticipates taking official action involving a decision on agency business in the reasonably immediate future.
(2) The agency has formulated recommendations, policies, motions, proposals, resolutions, rules, regulations, reports or orders relating to agency business upon which decisions will be made or with reasonable specificity has indentified courses of agency action upon which the recommendations, policies, motions, proposals, resolutions, rules, regulations, reports or orders will be prepared.
(3) The discussions involve direct or indirect indications of how individual members of the agency will vote upon matters subject to official action by the agency.
(4) The discussions occur at a prearranged gathering of the members of the agency held for the purpose of deliberations upon agency business or the meeting is held for another purpose and the meeting includes a significant or substantial amount of deliberation among a quorum of the members of the agency.
(d) Informal meetings. This subchapter does not apply to informal meetings of a quorum of the members of an agency, such as breakfasts, luncheons, dinners and receptions conducted primarily to exchange information about general agency operations or for predominantly social purposes. Agency members shall avoid discussions at meetings which directly or indirectly indicate how individual members will vote upon matters subject to official action by the agency.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements).
§ 1.45. Executive sessions.
(a) Purpose. An agency may hold a meeting from which the public is excluded for one or more of the purposes in § § 1.46—1.51.
(b) Attendance. An agency may admit to an executive session persons necessary to carry out the purpose of the meeting. The persons may include, but are not limited to, agency staff, legal and technical advisors and individuals and their representatives who may be affected by matters to be discussed at an executive session. An agency may also meet with auditors and legislative investigatory committees in an executive session.
(c) Procedure. An executive session may be held during an open meeting, at the conclusion of an open meeting or may be announced for a future time at an open meeting. If an agency conducts an executive session which was not announced at an open meeting, the agency shall give each of its members at least 24 hours’ notice in advance of the time of the meeting unless all of the members of an agency by unanimous agreement waive the requirement for the notice.
(d) Notice. At the open meeting occurring immediately prior or subsequent to an executive session, the agency shall announce and include within its minutes, the date, time, location and purpose of the executive session. The purpose of an executive session may be explained by a general reference to the types or categories of subjects discussed at the session and need not identify with specificity persons or matters considered during the meeting.
(e) Official action. Unless otherwise provided by law or exempt under § 1.59 (relating to exemptions), a meeting at which a quorum of the members of an agency take official action with regard to matters discussed at an executive session shall be open to the public.
(f) Minutes. The agency shall keep minutes of each executive session in the same manner required by § 1.52 (relating to minutes) for open meetings. The minutes of executive sessions do not constitute records available for public inspection and copying.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); 4 Pa. Code § 1.46 (relating to personnel matters); 4 Pa. Code § 1.47 (relating to labor relations); and 4 Pa. Code § 1.52 (relating to minutes).
§ 1.46. Personnel matters.
(a) Scope. An agency may hold an executive session to discuss a matter related to the employment, appointment, termination of employment, evaluation of performance, promotion or disciplining of a specific prospective, current or former public officer or employe employed by the agency.
(b) Closed hearings. An executive session may include, at the discretion of the agency, a closed hearing attended by the individual subject to the proceedings and the individual’s legal representative. Unless otherwise provided by law, the record of the hearing is not a record available to the public for copying and examination.
(c) Requests for open meetings. Unless otherwise provided by law, the individual whose rights could be adversely affected by discussions at an executive session regarding personnel matters may request, in writing, that the matters be discussed at an open meeting. The request shall include a specific waiver of the rights to confidentiality regarding personnel records, reports and other matters material to the proceedings to the extent the records, reports or other matters are discussed at an open meeting. The agency may grant or deny a request to conduct discussions in an open meeting. The agency shall deny the request to conduct the discussions at an open meeting if the meeting would impair the progress of an investigation by the agency into other or related matters concerning the official duties of the agency or would operate to the improper prejudice or impairment of another person’s personal safety or reputation.
(d) Official actions and suspensions. Unless otherwise provided by law and as required under § 1.45(e) (relating to executive sessions), a meeting by a quorum of the members of the agency at which official action is taken to hire, appoint, terminate, reward, promote or discipline an employe shall be open to the public. The agency may, pending the formal action, temporarily suspend an employe or public official under procedures established by the Office of Administration or the Executive Board.
Cross References This section cited in 4 Pa. Code § 1.45 (relating to executive sessions).
§ 1.47. Labor relations.
(a) Scope. An agency may conduct an executive session to hold information, strategy and negotiation sessions related to the negotiation or arbitration of a collective bargaining agreement or, in the absence of a collective bargaining unit, related to labor relations and arbitration.
(b) Attendance. An executive session to consider labor relations matters session may be attended, at the discretion of the agency, by representatives of employes or their bargaining organizations.
(c) Official actions. Unless otherwise provided by law and as required under § 1.45(e) (relating to executive sessions), a meeting by a quorum of the members of the agency to adopt a collective bargaining agreement or other labor contract, award or agreement shall be open to the public. The agency may make decisions regarding strategy and offers made in the court of negotiation at an executive session.
Notes of Decisions Grievance Subject to Arbitration
The arbitrator correctly relied on the past practice of the district court in granting rescission of sabbatical requests over an 8-year period and in finding the dispute arbitrable. The arbitrator’s decision not only did not conflict with any language of the agreement, but it also met the ‘‘essence test’’ in that the collective bargaining agreement contained no integration clause nor any language eliminating past practices as a consideration. Centennial School District v. Centennial Education Association, 26 D.&C. 4th 567 (Pa. Com. Pl. 1994).
Cross References This section cited in 4 Pa. Code § 1.45 (relating to executive sessions).
§ 1.48. Purchase or lease of property.
(a) Scope. An agency may conduct an executive session to consider the purchase or lease of real property up to the time an option to purchase or lease the real property is obtained or up to the time an agreement to purchase or lease the property is obtained if the agreement is obtained directly without an option. Agencies should utilize executive sessions to consider the acquisition or lease of real property only in circumstances in which the public disclosure of the considerations is likely to lead to speculation, collusion among sellers or other events likely to increase the cost to the Commonwealth of acquiring or leasing real property.
(b) Attendance. An executive session to consider the purchase or lease of real property may be attended, at the discretion of the agency, by a seller or lessor of the property or his representative or agent.
(c) Official actions. A meeting at which an option or agreement to buy or lease real property is executed by a quorum of the members of the agency shall be open to the public. An agency may at an executive session give preliminary acceptance to an offer of an option or agreement to buy or lease real property subject to the ratification of the contract at an open meeting.
Cross References This section cited in 4 Pa. Code § 1.45 (relating to executive sessions).
§ 1.49. Consultation with professional advisors.
(a) Scope. An agency may hold an executive session to consult with its attorney or other professional advisor in connection with litigation or with issues upon which identifiable complaints are expected to be filed. Other professional advisors include, but are not limited to, accountants, actuaries, architects, engineers, health care professionals, investment advisors and scientific experts. Consultations may occur in an executive session whenever complaints or actions affecting the interests of the agency have been filed before a court or an administrative agency or can be expected to be filed in the reasonably foreseeable future.
(b) Official action. A meeting at which a quorum of the members of an agency authorize agency counsel to initiate or intervene in an action, defend the agency or otherwise formally participate in legal proceedings shall be open to the public. An agency decision regarding specific instructions to counsel regarding the content of pleadings, motions, memoranda of law or other matters relating to the progress of litigation or administrative proceedings may take place at an executive session.
Cross References This section cited in 4 Pa. Code § 1.45 (relating to executive sessions); and 4 Pa. Code § 1.60 (relating to violations).
§ 1.50. Privileged, confidential, investigatory and quasijudicial matters.
(a) Privileged matters. An agency may conduct an executive session to review and discuss agency business which, if conducted in public would violate a lawful privilege including, but not limited to, confidential communications with attorneys, executive officers of State government, physicians, clergymen, licensed psychologists, school personnel and sexual assault counselors.
(b) Confidential matters. An agency may conduct an executive session to review and discuss agency business which if conducted in public would lead to the disclosure of information or confidentiality protected by statute including, but not limited to, matters relating to:
(1) Business or personal finances.
(2) A report, return, assessment or determination relating to the payment of taxes.
(3) Business trade secrets.
(4) The physical and emotional health of individuals.
(5) Information which would operate to the prejudice or impairment of a person’s personal reputation or personal security.
(6) Information the disclosure of which could result in the loss of Federal funds by the Commonwealth or its political subdivisions.
(7) Benefits received by indigent or needy individuals.
(8) The review of contractor qualifications, bids or proposals.
(9) Criminal history information and investigative files not available for public examination and copying.
(10) Other information the confidentiality of which is protected by statute.
(c) Investigations. An agency may conduct an executive session to review and discuss matters which, if discussed in public, would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties and impair the progress of the investigation or the initiation of civil or criminal proceedings to enforce the statutes of the Commonwealth.
(d) Quasi-judicial deliberations. Unless otherwise provided by statute, an agency conducting a formal adjudication under 2 Pa.C.S. (relating to administrative law and procedure) or similar statutes may, to the extent the adjudicative proceedings are not exempt from the requirements of this subchapter by § 1.59 (relating to exemptions), deliberate within executive sessions except insofar as agency deliberations involve general rules or other orders in the nature of regulations. Deliberations involving general rules or other orders in the nature of regulations may be discussed in an executive session only insofar as the discussions, if conducted in public, would violate a lawful privilege or lead to the disclosure of confidential information as provided by subsections (a), (b) and (c).
(e) Open meetings. An agency may conduct at its discretion open meetings to discuss privileged or confidential matters if all parties entitled to assert the privileges or rights to confidentiality expressly authorize, in whole or in part, the matters to be discussed at an open meeting.
(f) Official action. A meeting of a quorum of the members of an agency to take official action with regard to matters discussed at executive sessions under this section shall be open to the public unless exempt from the requirements of this chapter by § 1.59.
Cross References This section cited in 4 Pa. Code § 1.45 (relating to executive sessions); and 4 Pa. Code § 1.59 (relating to exemptions).
§ 1.51. Academic admission or standing.
The constituted committees of a board or council of trustees of a State-owned, State-aided or State-related college or university or community college or the Board of Governors to the State System of Higher Education may hold executive sessions to discuss matters of academic admission or standing.
Cross References This section cited in 4 Pa. Code § 1.45 (relating to executive sessions).
§ 1.52. Minutes.
(a) Content. Written minutes of open meetings shall contain the following information:
(1) The date, time and place of the meeting.
(2) The names of members present.
(3) The substance of official actions and a record by individual members of the roll call votes taken.
(4) The names of citizens who appeared officially and the subject of their testimony.
(5) Evidence of compliance with the notice requirements of § 1.53 (relating to notice) or § 1.54(b) (relating to emergency meetings).
(6) The justification for an emergency meeting as required by § 1.54(a).
(7) A record of an executive session conducted or planned as required by § 1.45(d) (relating to executive sessions).
(8) Whether an official transcript or recording has been prepared or whether the use of recording devices by other persons has been registered under § 1.55(c) (relating to rules and regulations).
(9) A record of notational voting conducted by the agency under § 1.43(c)(4) (relating to official action).
(10) Other information required by law, this subchapter or which the agency determines is appropriate to include in the record of agency proceedings.
(b) Official testimony. The agency is required to include within its minutes the names and the subject of testimony of persons who indicate to the agency they wish to provide official testimony. The agency is not required to include within its minutes a listing of persons attending an open meeting or persons offering informal comments to the agency. If persons offer written official testimony to the agency, the statements shall be included together with the minutes as a public record of the agency.
(c) Public records. Minutes of agency proceedings, testimony attached to the minutes and official recordings or transcripts of agency proceedings at an open meeting shall be records available to the public for examination and copying.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); 4 Pa. Code § 1.45 (relating to executive sessions); and 4 Pa. Code § 1.55 (relating to rules and regulations).
§ 1.53. Notice.
(a) Publication. In accordance with procedures established by the Department of General Services, an agency shall publish notice of the place, date, time and purpose of an open meeting in a newspaper of general circulation, as defined by 45 Pa.C.S. § 101 (relating to definitions), which is published and circulated in the political subdivision where the meeting will be held or in a newspaper of general circulation which has a bona fide paid circulation in the political subdivision equal to or greater than a newspaper published in the political subdivision.
(b) Posting. The agency shall post a notice of the place, date, time and purpose of a meeting prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held.
(c) Direct notice. The agency shall supply a copy of the notice of an open meeting directly to individuals with a direct and substantial interest in the proceedings of the agency and, upon request, to other interested parties, including, but not limited to, members of the public, newspapers of general circulation, radio and television stations. A party requesting direct notice of meetings shall register with the agency, but the agency may not require the provision of stamped, self-addressed envelopes as provided by section 9(c) of the Sunset Act (65 P. S. § 279(c)).
(d) Capitol newsroom and General Assembly. An executive agency shall also provide copies of meeting notices to the supervisor of the newsroom in the State Capitol Building in the manner provided by section 9(d)(1) of the Sunshine Act, to the Office of the Secretary of the Senate and the Chief Clerk of the House of Representatives and to the Chairperson and Minority Chairpersons of standing committees of the Senate and the House of Representatives designated as responsible for oversight of agency activities under the Regulatory Review Act (71 P. S. § § 745.1—745.15).
(e) Agency contact. A notice provided under this section shall include the name, address, title and phone number of a responsible agency official who will be available to answer questions about a scheduled public meeting.
(f) Use of recording devices. If an agency, under § 1.56(b) (relating to use of recording devices), requires advance notification of the intent of persons to utilize recording devices at an open meeting in order to provide adequate facilities and arrangements to facilitate the use of the devices, the information shall be included within notices provided under this section, together with instructions that the individuals shall notify the agency contact as provided by subsection (e) about their plans and requirements.
(g) Relocation of meetings. If, due to overcrowding, the malfunction of utilities or the unavailability of an originally scheduled meeting room it becomes necessary to relocate a meeting, new and separate notice under this section is not required if the new meeting site is within the same building or within reasonable proximity of the originally scheduled meeting site and, if the following exist:
(1) Notice is prominantly posted at the original site announcing the relocation of the meeting.
(2) The start of the meeting is delayed a sufficient period of time in order to allow individuals arriving at the original meeting site to move to the new meeting site.
(3) If possible and appropriate, direct notice of the change in location is given to the Capitol Newsroom, persons offering official testimony at the meeting, persons registering the use of recording devices under § 1.56(b)(1) and persons with a direct and substantial interest in agency proceedings to be conducted at the meeting.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); 4 Pa. Code § 1.52 (relating to minutes); and 4 Pa. Code § 1.54 (relating to emergency meetings).
§ 1.54. Emergency meetings.
(a) Purpose. An agency may conduct a meeting to deal with a real or potential emergency involving a clear and present danger to life or property without compliance with the notice requirements of § 1.53 (relating to notice). At an emergency meeting, the agency shall explain with specificity the justification for conducting an emergency meeting and include the justification within the minutes of the agency proceeding.
(b) Notice. Prior to conducting an emergency meeting, the agency shall take whatever actions are practical and appropriate to provide actual advance notice regarding the meeting, especially to individuals or organizations with a direct and substantial interest in official action scheduled to be taken at the meeting. The notification may include press releases, personal notification of affected parties, the provision of notices to the supervisor of the newsroom in the State Capitol Building and the posting of notices at the site of the emergency meeting.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); and 4 Pa. Code § 1.52 (relating to minutes).
§ 1.55. Rules and regulations.
(a) Conduct of open meetings. An agency may adopt, by official action taken at a public meeting, rules and regulations or bylaws necessary for the conduct of its meetings and the maintenance of order. The regulations may include procedures for:
(1) Public participation in meetings including the presentation of official testimony under § 1.52(b) (relating to minutes), as well as the presentation of unofficial comments by members of the public.
(2) The manner in which topics may be placed upon an agency agenda for deliberations and official action.
(3) Limiting debate and discussion of agency business.
(4) Delegating responsibility to committees of the agency and to individual agency officials.
(b) Public participation. Although agencies are encouraged to develop regulations or bylaws designed to maximize effective public participation in open meetings and to provide information to the public about agency proceedings, unless otherwise required by law, agencies are not required to recognize or take testimony from members of the public at open meetings or to share with members of the public copies of internal agency records distributed to agency members.
(c) Regulatory deliberations. For the purpose of effectively conducting proceedings regarding the content of regulations under review under the Regulatory Review Act (71 P. S. § § 745.1—745.15) or the Commonwealth Attorneys Act (71 P. S. § § 732-101—732-506), the agency may at an open meeting designate one or more official representatives to execute regulatory documents implementing general instructions provided by the agency and to meet with representatives of other agencies, the General Assembly, the Independent Regulatory Review Commission and the public to discuss and make changes to proposed regulations and enter into tentative agreements regarding changes to final rules. Agreements regarding changes to final regulations shall be subject to review and approval by the agency prior to final adoption of regulations, but the commitment of an agency representative may be offered for the purpose of obtaining approval of documents under the Regulatory Review Act. A meeting at which a quorum of the members of an agency meet to adopt a final regulation shall be open to the public.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); and 4 Pa. Code § 1.52 (relating to minutes).
§ 1.56. Use of recording devices.
(a) Permissible activities. A person attending an open meeting of an agency shall have the right to take written or stenographic notes of agency proceedings or utilize audio or video recording devices to record proceedings at an open meeting.
(b) Rules and regulations. An agency may adopt rules and regulations governing the use of recording devices. The regulations may:
(1) Require prior registration with the agency by individuals wishing to utilize recording devices who require special accommodations within the meeting room in order to provide adequate facilities and arrangements to facilitate the use of the devices. The regulations may not prohibit the use of recording devices without prior registration.
(2) Limit the use of recording devices to certain areas within a meeting room in order to avoid blocking the public view of agency proceedings or the creation of a distraction or interference with agency proceedings and prohibit the unreasonable use of noisy or distracting recording devices if the use of the devices interferes with the effective conduct of an open meeting. The regulations may not deprive members of the public of reasonable access necessary to record agency proceedings.
(c) Minutes. If an agency does not prepare an official recording or transcript of its proceedings, it shall include within the minutes of its proceedings, with the consent of the persons utilizing recording devices, the name and address of parties registering the use of recording devices at an open meeting and what portions of the meeting were recorded by the persons.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); and 4 Pa. Code § 1.53 (relating to notice).
§ 1.57. Conferences.
(a) Scope. The quorum of the members of an agency may participate in a training program or seminar which is organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities without compliance with this subchapter. A conference may be organized by the agency, its staff or other persons, groups or organizations and may be attended either solely by members and staff of the agency or may include other persons, groups or organizations.
(b) Prohibited activities. A conference attended by a quorum of the members of an agency is subject to this subchapter if the conference includes a significant or substantial amount of deliberation among members of the agency. A conference is not subject to this subchapter if the purpose and predominant activity for which the meeting is held is to provide information to members of the agency needed in order to conduct future deliberations or take future formal actions. Incidental discussions regarding agency business may permissibly occur at conferences not subject to this subchapter, but agency members shall avoid discussions at conferences which directly or indirectly indicate how members will vote upon matters subject to official action by an agency.
(c) Attendance by less than a quorum. This subchapter does not apply to the participation in training programs or seminars by less than a quorum of the members of an agency.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements).
§ 1.58. Administrative action.
(a) Scope. Official action and deliberations by a quorum of the members of an agency are not subject to this chapter if the official action and deliberations predominantly and primarily involve administrative action. Administrative action is the execution of policies relating to persons and things previously authorized or required by official action of the agency adopted at an open meeting of the agency. Administrative action includes, but is not limited to:
(1) Matters related to internal agency operations.
(2) The issuance of permits or licenses based upon nondiscretionary criteria.
(3) Matters related to intergovernmental coordination and cooperation within the executive branch.
(b) Limitations. An agency is not engaged in administrative action if the execution of previously authorized policies meets one of the following:
(1) Requires new and significant decisions on important policymaking matters, including the adoption of statements of policy, guidelines and interpretations of law or regulations.
(2) Involves decisions relating to new and significant factual applications of current policies which establish precedents for future agency action.
(3) Relates to the formal adoption of contracts or agreements creating rights, duties or obligation of the Commonwealth and other parties.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements).
§ 1.59. Exemptions.
(a) Scope. This subchapter does not apply to meetings of the quorum of the members of an agency to conduct deliberations or official actions regarding matters for which the taking of official action at an open meeting will violate a lawful privilege as defined by § 1.50(a) (relating to privileged, confidential, investigatory and quasi-judicial matters) or lead to the disclosure of information or confidentiality protected by law (as defined by § 1.50(b)), including matters related to the investigation of possible or certain violations of statute (under § 1.50(c)) and quasi-judicial deliberations (under § 1.50(d)). If an agency may take official action at an open meeting without violating a lawful privilege or disclosing confidential information, official actions and deliberations with regard to the matters are subject to the requirements of this subchapter, but deliberations regarding such matters may occur at an executive session under § 1.50.
(b) Quasi-judicial deliberations. Unless otherwise provided by statute, official actions with respect to formal adjudications conducted under 2 Pa.C.S. (relating to administrative law and procedure) or similar statutes are exempt from this subchapter unless the adjudications involve general rules or other orders in the nature of regulations.
(c) Budget preparation meetings. Meetings of quorum of the members of an agency to conduct official actions and deliberations with regard to budget recommendations to be submitted to the Secretary of the Budget are not subject to this subchapter unless the Governor waives the privilege to confidentiality with regard to recommendations received from the agency.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements); 4 Pa. Code § 1.45 (relating to executive sessions); and 4 Pa. Code § 1.50 (relating to privileged, confidential, investigatory and quasijudicial matters).
§ 1.60. Violations.
(a) Formal adjudications. An agency may not conduct a formal adjudication regarding the question of whether meetings have been conducted in compliance with this subchapter. Original jurisdiction to determine whether the actions of an agency has complied with this subchapter is vested in Commonwealth Court under section 15 of the Sunshine Act (65 P. S. § 285).
(b) Complaints. Upon receipt of a complaint that the actions of an agency allegedly violated this subchapter, the agency shall refer the matter to its chief counsel to render an advisory opinion. The Chief Counsel shall investigate whether or not the agency has complied with this subchapter and provide advice in the form of a confidential attorney-client communication to the agency. The agency may review the advice received from its counsel in an executive session conducted under § 1.49 (relating to consultation with professional advisors).
(c) Corrective action. If, following the review of the advice of counsel in an executive session, the agency determines that it may have violated this subchapter, the agency shall announce the finding at an open meeting and develop and implement a plan of corrective action. Implementation of a plan of corrective action which provides for required public deliberations and official actions may be deemed by the agency to ratify good faith actions allegedly taken in violation of this subchapter. The ratification of prior agency action may validate the action effective upon the date of completion of remedial action and may at the discretion of the agency apply retroactively to the date of original agency action. If an agency deems a ratification of previously defective actions to apply retroactively, the action may not impair vested rights or obligations until the date upon which corrective action is complete.
(d) Deemed approval. Except under the order of a court of competent jurisdiction, whenever under a statute or regulation the failure of an agency to take official action constitutes approval of a request for agency action, the failure of an agency to comply with this subchapter in disapproving the request does not constitute an approval of the request.
Cross References This section cited in 4 Pa. Code § 1.41 (relating to requirements).
§ 1.61. Force and effect.
This subchapter constitutes legal advice rendered to executive agencies of the Commonwealth under the jurisdiction of the Governor under section 301(3) of the Commonwealth Attorneys Act (71 P. S. § 732-301(3)). This legal advice is codified in this subchapter as a statement of policy which is permanent and general in nature containing an interpretation of a statute issued without reliance upon express or implied rulemaking authority as provided by 1 Pa. Code § § 1.4 and 3.26a (relating to definitions; and statements of policy). As a statement of policy, this subchapter is directory, rather than mandatory, and is not intended to have the force and effect of law. This subchapter is intended to provide advice and guidance to agencies under the jurisdiction of the Governor regarding the execution of statutory duties and responsibilities.
No part of the information on this site may be reproduced for profit or sold for profit.
This material has been drawn directly from the official Pennsylvania Code full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
