The Commonwealth Court recently held in Coleman v. Parkland School District, that in order for a local agency to add any item to a published meeting agenda, the agency must first determine that the issue is (1) emergency business, (2) de minimis business not involving fund expenditure or entering into a contract that arises within 24 hours preceding the meeting, or (3) de minimis business raised by a resident/taxpayer during the meeting that does not involve fund expenditure or entering into a contract. Only then may the agency add it to the agenda by majority vote. Coleman v. Parkland Sch. Dist., No. 1416 C.D. 2022 (Pa. Cmwlth. Nov. 8, 2023).

The Pennsylvania Sunshine Act, 65 Pa. C.S. § 701 et seq., requires agencies subject to the Act to publish their meeting agendas and set restrictions on taking official action on items not listed on the published agenda. The Act specifically required that agencies publish a copy of the meeting’s agenda, including a list of the matters of agency business that will be subject to deliberation or official action, no later than 24 hours in advance of the meeting. See 65 Pa. C.S. § 712.1(a); § 709(c.1).

The Act also included Section 712.1(e)(1), which courts interpreted as a “catch-all” provision that allowed agencies to add any item to the agenda so long as that item was added by a majority vote and so long as the agenda was revised and republished within 24 hours of the meeting. See Schmid v. Ringgold Sch. Dist. (C.P. Wash. No. 2022-1028, Dec. 9, 2022).

However, the Pennsylvania Commonwealth Court recently rejected this interpretation of Section 712.1(e)(1). Instead, the court determined that, for an agency to take official action on an item not included in the originally published agenda, the item must: (1) meet one of the three exceptions outlined in Sections 712.1(b), (c), or (d), and (2) be added to the agenda by a majority vote in accordance with Section 712.1(e). Coleman v. Parkland Sch. Dist., No. 1416 C.D. 2022 (Pa. Cmwlth. Nov. 8, 2023).

Under Sections 712.1(b), (c), and (d), in order to add an item to the agenda, an item must be:

(1) a matter relating to a real or potential emergency involving a clear and present danger to life or property;

(2) a matter brought to the attention of the agency within the 24-hour period prior to the meeting, so long as the matter is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement; or

(3) a matter brought to the attention of the agency by a resident or taxpayer to be considered for the purposes of referring it to staff, researching it for inclusion on the agenda of a future meeting, or official action on a matter that is de minimis in nature and does not involve the expenditure of funds or entering into a contract or agreement.

65 Pa. C.S. § 712.1(b)-(d).

While many agencies have been operating with the understanding that Section 712.1(e) serves as a “catch-all” provision allowing any item to be added to an agenda by majority vote, this practice may now be a violation of the Sunshine Act and may result in fines of up to $1,000 for a first offense, or up to $2,000 for a second or subsequent offense. See 65 Pa. C.S. § 714.