Usually, most individuals and organizations in Pennsylvania arrive at this point because their local governmental entity is out of control and unaccountable to the citizens that elect them. Many Pennsylvania townships are ill-organized and ill-run, with many of the individuals that currently serve using the office as a means by which to achieve other ends.

    Many township meetings (or other local municipality meetings which the Sunshine Act covers - i.e. school boards, etc.) do not attempt to conform to the requirements of the Sunshine Act, simply because the Supervisors know from experience that the citizens lack the legal or technical tools to enforce the Sunshine Act against them.

    The Sunshine Act is fairly simple in its application - it requires that time be allotted for public comments at meetings, that all meetings be recorded, and that decisions be made in an orderly, open manner, at regularly scheduled meetings. Special meetings under the Act may be only held to discuss very specific confidential matters. Thus, the Act seeks to remedy much of the non-conforming activity currently occurring in Pennsylvania’s local government entities.

    This Handbook is designed to give ordinary citizens and citizen organizations the tools and legal information necessary to enforce the Sunshine Act in County Courts. This manual is not intended as an "end all, be all", and should be used in coordination with the staff attorney of the Community Environmental Legal Defense Fund (CELDF), at (717) 709-0457 or in coordination with a local, bar certified attorney.

II. The Sunshine Act

    The provisions of the Sunshine Act are listed below, with a small explanation of each section’s relevance and applicability below each section.

Section 1. Short title

This act shall be known and may be cited as the Sunshine Act.

1986, July 3, P.L. 388, No. 84, effective in six months.

Section 2. Legislative findings and declaration

Section 3. Definitions

    The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Administrative action." The execution of policies relating to persons or things as previously authorized or required by official action of the agency adopted at an open meeting of the agency. The term does not, however, include the deliberation of agency business.

"Agency." The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following: the General Assembly, the executive branch of the government of this Commonwealth, including the Governor’s Cabinet when meeting on official policy making business, any board, council, authority or commission of the Commonwealth or of any political subdivision of the Commonwealth or any State, municipal, township or school authority, school board, school governing body, commission, the boards of trustees of all State- aided colleges and universities, the councils of trustees of all State owned colleges and universities, the boards of trustees of all State-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs, or has for its purpose the performance of, an essential governmental function and through the joint action of its members exercises governmental authority and takes official action. The term does not include a caucus nor a meeting of an ethics committee created under rules of the Senate or House Representatives.

"Agency business." The framing, preparation, making or enactment of laws, policy or regulations, the creation of liability by contract or otherwise or the adjudication of rights, duties and responsibilities, but not including administrative action.

"Caucus." A gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action in the General Assembly.

"Conference." Any training program or seminar; or any session arranged by State or Federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities.

"Deliberation." The discussion of agency business held for the purpose of making a decision.

"Emergency meeting." A meeting called for the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.

"Executive session." A meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.

"Litigation." Any pending, proposed or current action or matter subject to appeal before a court of law or administrative adjudicative body, the decision of which may be appealed to a court of law.

"Meeting." Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.

"Official action."

1. Recommendations made by an agency pursuant to statute, ordinance or executive order.
1. The establishment of policy by an agency.
1. The decisions on agency business made by an agency.
1. The vote taken by any agency~ on any motion, proposal, resolution, rule, regulation, ordinance, report or order.

1.   For a meeting:

1986, July 3, P.L. 388, No. 84, effective in six months.

 It is important to read the above section extremely carefully - note the positioning of words such as "prominently" in the provisions above. Also notice the very expansive definitional sections, which cover almost all aspects of local governmental and agency decisionmaking.

Section 4. Open meetings

    Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 7, 8 or 12 1986, July 3, P.L. 388, No. 84, effective in six months.

Section 5. Recording of votes

    In all meetings of agencies, the Vote of each member who actually votes on any resolution, rule,     order, regulation, ordinance or the setting of official policy must be publicly cast and, in the case of roll call votes, recorded.

1986, July 3, P.L. 388, No. 84, effective in six months.

Section 6. Minutes of meetings, public records and recording of meetings

Written minutes shall be kept of all open meetings of agencies. The minutes shall include:

1. The date, time and place of the meeting.
1. The names of members present
1. The substance of all official actions and a record by individual member of the roll call votes taken.
1. The names of all citizens who appeared officially and the subject of their testimony.

Section 7. Exceptions to open meetings

Section 8. Executive sessions

1. To discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency’s decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law, including those granted by Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure).
1. 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.
1. 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 such property is obtained if the agreement is obtained directly without an option.
1. 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.
1. To review and discuss agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matters related to the initiation and conduct of investigations of possible or certain violations of the law and quasi-judicial deliberations.
1. For duly 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 of the Board of Governors of the State System of Higher Education to discuss matters of academic admission or standings.

 Notice the fairly narrow reading for when an "executive session" is allowed to be held by the governmental entity. Basically, the authorization for an "executive session" only occurs when litigation is pending and the governmental unit must confer with an attorney; or when employment matters are being discussed which relate to the governmental unit as an employer.

Section 9. Public notice

1. The supervisor of the newsroom of the State Capitol Building in Harrisburg is supplied for distribution to the members of the Pennsylvania Legislative Correspondents Association with a minimum of 30 copies of the notice of the date, time and place of each session, meeting or hearing.
1. There is a posting of the copy of the notice at public places within the Main Capitol Building designated by the Secretary of the Senate and the Chief Clerk of the House of Representatives.

Section 10. Rules and regulations for conduct of meetings

    Nothing in this act shall prohibit the agency from adopting, by official action, the rules and regulations necessary for the conduct of its meetings and the maintenance of order. The rules and regulations shall not be made to violate the intent of this act. 1986, July 3, P.L. 388, No. 84, effective in six months.

Section 10.1. Public participation

Notice that the governmental entity must allow a period of participation for the public to give comments.

Section 11. Use of equipment during meetings

Section 12. General Assembly meetings covered

    Notwithstanding any other provision, for the purpose of this act, meetings of the General Assembly which are covered are as follows: All meetings of committees where bills are considered, all hearings where testimony is taken and all sessions of the Senate and the House of Representatives. Not included in the intent of this act are caucuses or meetings of any ethics committee created pursuant to the Rules of the Senate or the House of Representatives. 1986, July 3, P.L. 388, No. 84, effective in six months.

Section 13. Business transacted at unauthorized meeting void

    A legal challenge under this act shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which the act was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. The court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this act, it may in its discretion find that any or all official action taken at the meeting shall be invalid. Should the court determine that the meeting met the requirements of this act, all official action taken at the meeting shall be fully effective. The court may impose attorney fees for legal challenges commenced in bad faith. 1986. July 3. P.L. 388, No. 84, effective in six months.

Notice the broad, expansive penalty for violating the provisions of the Sunshine Act during a governmental meeting. The penalty provides for a ruling that all actions taken at the meeting may be declared invalid. This section also contains the statute of limitations for the Act, which includes a 30 day statute of limitations on bringing suit against alleged violations occurring during a meeting open to the public; or 30 days from the discovery of the allegedly illegal action which was conducted at a meeting not open to the public.

Section 14. Penalty

    Any member of any agency who participates in a meeting with the intent and purpose by that member of violating this act commits a summary offense and shall, upon conviction, be sentenced to pay a fine not exceeding $100 plus costs of prosecution. 1986, July 3, P.L. 388, No. 84, effective in six months.

This section applies to criminal prosecution, and allows the County District Attorney or the state Attorney General to assess a fine upon the individuals guilty of violating the Sunshine Act.

Section 15. Jurisdiction and venue of judicial proceedings

The Commonwealth Court shall have original jurisdiction of actions involving State agencies and the courts of common pleas shall have original jurisdiction of actions involving other agencies to render declaratory judgments or to enforce this act, by injunction or other remedy deemed appropriate by the court. The action may be brought by any person where the agency whose act is complained of is located or where the act complained of occurred. 1986, July 3, P.L. 388, No. 84, effective in six months.

Note that this section provides for the "citizen suit" aspect of litigation - authorizing "any person" to bring an action under this Act to enforce the provisions of the Act.

Section 16. Confidentiality

    All acts and parts of acts are repealed insofar as they are inconsistent herewith, excepting those statutes which specifically provide for the confidentiality of information. Those deliberations or official actions which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matter related to the investigation of possible or certain violations of the law and quasi-judicial deliberations, shall not fall within the scope of this act.

1986, July 3, P.L. 388, No. 84, effective in six months.

III. Filing Your Complaint

Where: The County Court of Common Pleas in which the local governmental entity is located.

When: Within the Time Limitations Provided in the Sunshine Act

What: A Complaint and Service of Process on the Defendant

    Any litigation is initiated by the filing of a document known as the "Complaint". The Complaint is a numbered listing of allegations made in a given case. The Complaint is headed by a "caption", which simply includes the name of the Plaintiff(s), the Defendant(s) and the Court in which the case has been brought; and is signed at the end by the Plaintiff(s) who are bringing the lawsuit.

    Accompanying the Complaint will be two items that are explained in fuller detail below: (1) a Certificate of Service of Process, and (2) a Notice to Defend.

    Litigation is commenced when the Complaint is filed with these items with the proper County Court - which will be the County in which the local government entity is situated.
 
A Sample Complaint:

    The Plaintiffs in this above captioned action petition this Court for equitable and declaratory relief under the statutory provisions of Pennsylvania’s Sunshine Act, 65 P.S. §271 et. seq. Specifically, Plaintiffs allege that the Defendants, as a municipal entity, and as individuals attempting to circumvent the provisions of the Sunshine Act, did violate the provisions of that Act in a series of events occurring from December 8, 1997 to the filing of this instant complaint. The Plaintiffs request that this Court find that the Defendants did willfully violate the provisions of the Sunshine Act, and that this Court declare null and void any actions taken by the Marysville Borough Council that were made in contravention of the Sunshine Act. Plaintiffs also request that this Court impose civil penalties, as allowed under the Act, against the individual Defendants who have violated the provisions of the Act.

1.  Jurisdiction in this Court is invoked under 42 Pa.C.S. §931 (general jurisdiction) and under 65 P.S. §285 (specific jurisdiction under Sunshine Act provisions).

24. On December 8, 1997, a regularly scheduled open meeting was held by the Marysville Borough Council at the Marysville Fire Company Building located at 326 Cameron Street, Marysville, Pennsylvania 17053 beginning at 7:30 p.m.

25. Non-Borough residents were denied admission to the Borough Council meeting.

    In consideration of the Sunshine Act violations committed by the Marysville Borough Council as a whole, and by individual members acting in their individual and official capacity, the Plaintiffs respectfully request that this Court:

Notice several points about this Complaint:

1. The numbered allegations make it possible for the Defendant to respond to each point and for the Court to understand the reasons for the litigation;
1. The Jurisdictional section establishes the statute under which the County Court has jurisdiction to hear the case;
1. The separate "Counts" section draws the Court’s attention to the primary allegations and why the actions of the local governmental body violated sections of the Sunshine Act.

    Statutes of Limitations are established within the law so that legal actions must be brought within a specific amount of time. Otherwise the Plaintiff(s) are seen as "waiving" their right to bring the case. It is essential, therefore, for the Plaintiff(s) to file within the time limits set forth under the Sunshine Act.

    Under the Act, two separate statutes of limitation are set forth. These are (1) thirty days from the date of an open public meeting, and (2) thirty days from the discovery of a Sunshine Act violation in a closed meeting, not to exceed one year from the date of the actual meeting. Notice the reasons for the distinction between these two statutes of limitation - one applies to regularly scheduled open meetings; and the other applies to specially scheduled closed meetings or actions that were taken by the local governmental entity without any meeting or official action at all.

    Determination of the properly applied statute of limitations should be fairly simple - you must examine the type of meeting at which the Sunshine Act was violated, and then determine which statute of limitation will apply.

B. Technical Aspects of Filing - Service of Process, Notice of Being Sued

    At the time of filing of the Complaint, you’ll be forced to choose the type of service of process that you wish to use. You can handle the service of the Complaint in one of two ways - either by having the sheriff serve the Complaint upon the local governmental entity, or by having a non-party over the age of 18 serve the Complaint and file an affidavit as proof that they carried out the service of process.

An affidavit would look like this:

I, _________________, do hereby swear and affirm that I hand delivered the foregoing COMPLAINT and NOTICE TO DEFEND to the municipal offices of the Marysville Borough Council under the Service provisions of Pennsylvania Rule of Civil Procedure 422 (b)(2), and that eight (8) stamped, original copies of the complaint were served to that office. In addition, by the following method, the additional individuals below were also served.

HAND DELIVERY

Mr. William Dissinger, Esq.
Solicitor for Marysville Borough Council
316 Maple Avenue
Marysville, Pennsylvania 17053

I swear and affirm that I am not a Plaintiff in this litigation, and that I am of legal age to effect original process upon the Defendants in this case.

Signed,

__________________________

Name
Address
Phone Number

Signed this __________Day of March, 199X.
Notary:

The Complaint must have, as its first page, a document known as a "Notice to Defend". This Notice will appear similar to this:

    You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.

• Lawyer Referral Services for Perry County

• Legal Services

Note: It is essential that you include the Notice to Defend as the first page of the Complaint. Otherwise, you run the risk that the Complaint will be dismissed in the early stages of litigation.

    After the initial Complaint has been served, all future legal documents prepared by the Plaintiffs can be served by mail to the attorney that will be handling the case for the Defendants. To prove to the Court that you’ve served the documents by mail, you’ll have to file a "Certificate of Service of Process" with each legal document that you serve on the Defendants during the course of the litigation.

The Certificate of Process will look like this:

I, _________________, do hereby swear and affirm that I served the foregoing MOTION FOR EXTENSION OF TIME to the Defendants listed below by the method listed:
FIRST CLASS PRE-PAID U.S. MAIL

Mr. William Dissinger, Esq.
Solicitor for Marysville Borough Council
316 Maple Avenue
Marysville, Pennsylvania 17053

Signed,
 

__________________________

Joseph Martin, Pro Se
Address
Phone Number
 

Signed this __________Day of March, 199X.

C. Filing as an Organization or as Individuals?

    One of the decisions to be made in the early stages of the process is whether the Plaintiffs should file as individuals or organizations. The Fund advises that both classes of Plaintiffs should be included in the Complaint, for several reasons, including:

1. If only an organization is listed as a Plaintiff, there remains a judicial question of whether an individual, proceeding pro se , can represent the organization. In most of these cases, the case has been dismissed based on U.S. Supreme Court caselaw that only an attorney can represent an organization.
1. If only an organization is listed as a Plaintiff, the organization may not be able to appeal an adverse ruling if it cannot afford an attorney to pursue an appeal. Once again, courts rely on the ruling outlined above - that an individual cannot represent an organization for purposes of an appeal.
1. If only individuals are listed as Plaintiffs, then the Defendant(s) may attempt to challenge the "standing" of the individuals listed in an attempt to dismiss the case from the Court. It is much easier to attack the "standing" of individuals to bring suit, rather than organizations, because organizations can use any member of that organization to show that standing has been satisfied; whereas an individual must meet an individualized test.

IV. What to Expect Next - Answer or Preliminary Objections?

    After filing the Complaint, Plaintiffs can expect one of two courses of action by the Defendants. First, the Defendant may file an Answer to the Complaint, which will respond allegation by allegation and will be numbered according to the numbering used within the Complaint. Second, the Defendant may elect to file "preliminary objections" to the Complaint, which basically means that the Defendant will attempt to dismiss the Complaint because the Defendant contends that even if all the allegations in the Complaint are true, that the local governmental entity still has not violated any provisions of the Sunshine Act.

    If an Answer is filed, then the Plaintiffs will proceed to enter Discovery (whereby the Plaintiffs can ask questions and gather documents from the Defendants) or immediately to Summary Judgment (if the case can be decided by the Judge "on its face"—without supporting documents or discovery material).

    If Preliminary Objections are filed, the Plaintiffs must respond to these Objections by submitting a "Motion in Opposition to Preliminary Objections" and a "Brief in Support of the Motion in Opposition to Preliminary Objections" within twenty days of the receipt of the Preliminary Objections. Forms of Motions and Briefs are covered below. Simply put, a Motion is simply a request to the Court for a certain action; a Brief explains why the Motion should be granted, and uses both factual and legal arguments in support.

V. "Discovering the Truth"

    Discovery is always an important part of any piece of litigation. There are three primary categories ("tools") of Discovery. These include "Interrogatories", "Request for Document Production", and "Depositions", all of which are summarily described below:

    Testimony and documentation gained through these Discovery tools will later be used when the Plaintiffs submit their Summary Judgment Brief as a conclusion to the litigation. Basically, materials derived from these various Discovery tools will be paired with the sections of the law established by the Sunshine Act, to make a successful case that will result in a victory for the Plaintiffs.

VI. Briefing for a Summary Judgment Conclusion

    After Discovery is completed (or after the Answer is filed by the Defendant if no Discovery is conducted by the Plaintiff(s)), the Plaintiff(s) will file a Motion for Summary Judgment and a Brief in Support of the Motion for Summary Judgment with the Court. The purposes of a Motion and Briefs are briefly described below.
 

1.  A Motion - A request to the Court for a particular action. For instance, if the Plaintiff(s) need an extension of time in which to file a particular document, they would make a "Motion for Extension of Time" to the Court. Motions are usually one to three pieces of paper, the first page of which contains the case’s "caption" and the title, like this:

    The other pages to file would simply contain your request, and the reasons supporting your request. The next section will list some common Motions that you might encounter during litigation, and the proper format for each.

    There are several common Motions that the Pro Se Plaintiff may find useful during the course of the litigation. These common motions are:

AND NOW, come the Plaintiffs in the above captioned litigation and respectfully request this Court to grant a thirty day Extension for the Plaintiffs to file Preliminary Objections for the following reasons:

1. Plaintiffs are proceeding pro se in this Court;
1. Plaintiffs have not requested any prior extensions of time in this action;
1. Plaintiffs have several job related requirements over the next several weeks that will consume large amounts of time.
1. Plaintiffs have contacted opposing counsel, who do not oppose this Motion.

Signed,

________________________

Alexander Goodheart, pro se
Address
Phone Number

1. that the discovery or deposition shall be prohibited;
1. that the discovery or deposition shall be only on specified terms and conditions, including a designation of the time and place;
1.  that the discovery or deposition shall be only by a method of discovery or deposition other than that selected by the party seeking discovery or deposition;
1. that certain matters shall not be inquired into;
1. that the scope of discovery or deposition shall be limited;
1. that discovery or deposition shall be conducted with no one present except persons designated by the court;
1. that a deposition shall be sealed and shall be opened only by order of the court . . . .

AND NOW, come the Plaintiffs in the above captioned litigation and respectfully request this Court issue a Protective Order against the Defendants under Pa.R.Civ.Pro 4012 for their misuse of Discovery for the following reasons:

1. On December 1, 1997, the Defendant gave Plaintiffs notice of a Deposition to be held December 31, 1997.
1. Plaintiffs attended the deposition and were asked questions by the Defendant which dealt with a prior business owned by a Plaintiff.
1. Plaintiffs refused to answer these questions.
1. Plaintiffs believe that this line of questioning is irrelevant to the allegations made in this litigation.
1. Plaintiffs have included, with this Motion, the language of the specific questions that were asked by the Defendant, and the subsequent refusal of the Plaintiffs to answer the questions.

Respectfully Submitted,

_________________________

Alexander Goodheart, pro se
Address
Phone Number

AND NOW, come the Plaintiffs in the above captioned litigation and respectfully request this Court to apply Sanctions against the Defendant for the following reasons:

1. Plaintiff sent a set of written interrogatories to the Defendant on June 5, 1998. The Interrogatories are attached to this Motion for the Court’s convenience;
1. As of the date of this filing, answers to the written interrogatories have not been filed with the Plaintiffs, after repeated requests to Defendant’s counsel;
1. Upon information and belief, Plaintiffs believe that the Defendant’s counsel has not given the interrogatories to his clients for answer and return to the Plaintiffs.

Dated this ______Day of July, 1998.

Respectfully Submitted,

________________________

Alexander Goodheart, pro se
Address
Phone Number

Note: Each of the Motions submitted by the Plaintiff must be accompanied by a separate Certificate of Service of Process, a form copy of which is given in the first section of this Manual. The Certificate serves as "proof" to the court that the Motion was also given to opposing counsel.

VIII. Oral Argument and Case Conclusion

    After submission of your Summary Judgment Brief, Plaintiffs will receive a Response to their Brief submitted by the Defendants. Plaintiffs will then have an opportunity to submit a Reply to the Defendant’s Response. The Reply will probably be the last document filed by the Plaintiffs in this case.

    The Court may order a date and time be reserved for "Oral Argument" of the issues discussed within the Briefs. Oral arguments usually consist of fifteen minute periods of argument in which the Plaintiff proceeds first, the Defendant then gives argument, and then the Plaintiff has an opportunity to reply to the Defendant.

    Basically, oral argument is a time in which both sides present the strongest portions of their arguments. The oral argument also gives the judge time to ask clarifying questions of both sides so that the Judge can issue a final decision in the case.

    Preparation: The Fund advises all pro se Plaintiffs to type out a ten-fifteen minute statement that argues the strongest points of their Briefs and to practice giving the statement prior to entering into the Courtroom to deliver their argument. Having the pre-typed statement ensures that all primary arguments are covered by the Plaintiffs, and ensures that nervousness and interruptions by the Judge will not interfere with a clean delivery of the case’s strongest points.

    The Fund also advises all pro se Plaintiffs to find a location which mimics a courtroom and to practice their courtroom argument in that location. For Plaintiffs close to Harrisburg, the Fund advises a practice "run-through" with the staff attorney for the Fund at a Harrisburg law school’s moot court room. This will better prepare the Plaintiff for the oral argument. To schedule an appointment, contact the Fund at (717) 709-0457.

Congratulations! You’ve now completed your first piece of pro se litigation!