Pennsylvania joined a majority of states in adopting an exception to our Open Meetings Law known as the Sunshine Act that permits the state, municipalities and school districts to discuss security measures without public access. Senate Bill 1078 of 2018 (the “Exception Act”) was sponsored by Senator Robert (Tommy)Tomlinson (R-Bucks). This exception to open meetings is significant because it reflects a policy that transparency of public discussion by the local agency is less important than allowing the agency to discuss its security measures without giving someone “who intends to commit an act of violence against our schools or our local communities access to the plans being adopted to prevent such an incident” according to Senator Tomlinson. Public schools and government units have been compelled to adopt security measures in light of shootings that became part of our public consciousness in 1999 with Columbine High School in Colorado and continue through 2018 with Marjorie Stoneman Douglas High School in Florida.
The Sunshine Act requires agencies (with a quorum of members in attendance) to deliberate agency business and take official action in open meetings, willful violations of which are subject to criminal prosecution and payment of an objector’s attorney fees. Official actions are (1) recommendations by an agency pursuant to statute, ordinance or executive order, (2) establishment of policy, (3) decisions on agency business made by the agency, or (4) a vote taken by an agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order. The Sunshine Act requires that the deliberations on agency business be made in open meetings. Open meetings are held pursuant to public notice in newspapers of general circulation so that discussions and actions must be anticipated and meetings be made open to attendance by the public. How, then, are sensitive security measures discussed at a meeting without public attendance?
Lawful alternatives to the open meeting rule are classified as conferences, working sessions, executive sessions and specific exceptions for the General Assembly. A conference could include meetings of agency associations where no specific agency business is discussed, such as a meeting of the Pennsylvania State Association of Boroughs with all members of a borough council in attendance. Working sessions are those of boards of auditors while examining, discussing and deliberating various accounts without taking official action. Excluded for the General Assembly are discussions in meetings of caucuses or any ethics committee created by the Rules of the Senate or House of Representatives. These exceptions do not facilitate deliberations on security.
Executive sessions are meetings closed to the public to facilitate full discussion of sensitive topics. Executive sessions are authorized (1) to discuss matters of employment, (2) to discuss information, strategy and negotiation matters regarding collective bargaining, or labor relations or arbitration in the absence of a collective bargaining unit, (3) to consider the acquisition of real estate or an option to purchase or lease real estate, (4) to consult with an attorney about litigation or identifiable complaints about to be filed, (5) to review and discuss agency business that would either violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, or (6) to discuss admission or standing by a State-owned or State-related college or university or a community college. These six exceptions do not authorize an agency to discuss security measures confidentially.
A review of security responses can help frame the policy for a seventh executive session. Security measures include, for example, identifying weaknesses in public safety at an institution where many people gather and the tools for security to overcome those weaknesses. Security includes physical security such as controlled access to buildings (locks and fences) and specialized personnel to address breaches. Also considered are individual security measures such as photo identification badges, uniforms and digital passwords. Further considered are internal security measures such as metal detectors, sniffing dogs for drugs and security cameras to monitor activity. Finally, a public institution could have plans for addressing natural disasters, bomb threats, shootings, suicide threats, chemical, biological, and radiological threats, pandemic flu, reuniting affected students with their parents, and counselling. A statistical discussion of school responses has been published by the National Center for Education Statistics, part of the Institute of Education Sciences, entitled “Indicators of School Crime and Safety: 2017,” which can be found at https://nces.ed.gov/pubs2018/2018036.pdf.
Given the need for secrecy and candid discussion regarding security measures at public institutions, the Exception Act is an appropriate legislative response. It permits a seventh executive session “[t]o discuss, plan or review matters and records that are deemed necessary for emergency preparedness, protection of public safety and security of all property in a manner that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection.” This executive session alternative requires an agency to anticipate the topics to be discussed about security measures and apply them to the elements of the authorized exception. Fortunately, this executive session description provides wide discretion to agencies. Accordingly, the language of the Exception Act can be readily applied to a discussion of security measures by an agency, including its security committee, which would otherwise be constrained to hold open meetings.
The Exception Act does not cover official action on security measures identified in executive session. Following an executive session on security matters, any plan or contract must be adopted in open meeting. Accordingly, the agency must take official action in an open meeting to purchase, for example, metal detectors or surveillance equipment, or to adopt policies or to hire personnel. Although this transparency might seem to conflict with the policies underlying an executive session exception based on security, the limited exception fulfills the need of agencies to discuss its threats and specific responses to threats outside the hearing of those who would commit an act of violence sought to be prevented.
When the Senate approved the Exception Act, Senator Jake Corman (R-34) discussed the balance of policies it represents. “This measure balances openness and transparency with our desire to safeguard our children while they are at school. This sensible approach will help our school districts, local governments and first responders as they develop new school safety plans and procedures that will hopefully become national models.” Further, these protections for school boards apply equally to security measures discussions of other agencies, including state government, borough councils, boards of supervisors and of commissioners, city councils and their committees. Governor Wolf approved the Exception Act on October 24, 2018, and it will take effect 60 days later.
© 2018 Robert J. Hobaugh, Jr.