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COVID-19 Update: Guidance Regarding Memo on House Bill 1564

access_time Posted on: March 27th, 2020

To Municipal Clients

As some of you may be aware, a memo has been circulating regarding Pennsylvania House Bill 1564, which proposes to allow municipalities to conduct fully electronic meetings, as well as suspending some permit application deadlines, among other things. The memo that indicates that the Pennsylvania municipal codes have been amended by House Bill 1564. This, unfortunately, is simply not true.

The Bill has passed the House of Representatives unanimously, but no action has been taken by the Pennsylvania Senate. As we all know, a bill does not become a law unless passed by the both the House of Representatives and the Senate, and then signed by the Governor. At this time, it appears very unlikely that House Bill 1564 will even be taken up by the Pennsylvania Senate.

Below is an email from the Chairman of the Pennsylvania Senate Local Government Committee, Sen. Scott Martin regarding the Bill:

Good afternoon, 

On March 18, 2020, the Senate Local Government Committee shared a recommendation for local governments asking about their ability to meet remotely and not maintain a physical quorum. Since the recommendation was given, we have heard that some local solicitors still felt new legislation was needed, though others were comfortable and were already relying on existing statute to support their ability to meet remotely, which I personally agree with given the Governor’s statewide emergency declaration, his social distancing directives and his stay at home orders. I believe these orders and directives have caused regular business to become emergency business in terms of how local governments operate. 

As you may be aware, on Friday, March 20, 2020, I hosted a conference call with stakeholders to gauge their comfort level on relying on Title 35 Section 7501 and guidance from the Office of Open Records and why it is believed that this is sufficient. On that call, some stakeholders felt that something in writing from the Pennsylvania District Attorney’s Association (PDAA) or Attorney General’s office on the matter would be helpful. 

The Attorney General’s office has opted not to weigh in, however, PDAA has provided comments on the matter, which I have attached to this email. In summary, they recommend officials make a good faith effort to comply with the spirit of the law to provide for public accessibility. Local officials should weigh the impact of social distancing directives, stay at home orders in some counties, and the extent to which aspects of even an agency’s regular business can or cannot be put off to a later date in determining the best way to achieve this goal. 

Therefore, in consultation with our Caucus General Counsel, we will not be pursuing legislation at this time to address remote meetings and continue to recommend the following to our local entities: 

  • 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

I hope this provides some clarity but should you have any questions, please don’t hesitate to reach out to me. In addition, we will continue to get feedback and engage in dialogue with stakeholders regarding other legislative efforts that are occurring and on what timeline actions can be taken.

Please reference the guidance from the Pennsylvania District Attorney’s Association (below) that Sen. Martin references in his email.

At this time, the provisions in House Bill 1564 should not be followed as if they are law. If that does change at any time in the future, we will be sure to let you know. Please do not hesitate to contact me if you have any questions.

Guidance from the District Attorneys Association

You have asked whether individuals might be prosecuted under Pennsylvania’s Sunshine Act if, during the present COVID-19 emergency, individuals covered by the statute do not comply with each of its statutory requirements. 

As an initial matter, please know that this document does not constitute legal advice, nor is it binding. The decision whether to prosecute an individual lies squarely within the province of the appropriate prosecutor with jurisdiction over the matter. Individuals with concerns should consult with those with whom they normally consult, or anyone else for that matter. 

Because this is not a formal or binding legal document, we will not be providing an overly detailed analysis or recitation of the applicable law. Instead, we will provide some brief comments on the statute and its relevant exemptions, as well as some general common-sense thoughts given the emergency we all face. 

As you know, section 714 of the Sunshine Act provides, among other things, that “[a]ny member of any agency who participates in a meeting with the intent and purpose by that member of violating this chapter commits a summary offense. . . .” But the law also permits political subdivisions included in a Governor’s declaration of disaster emergency to “exercise the powers vested under this section without regard to time-consuming procedures and formalities prescribed by law. . . .” See 35 Pa.C.S. § 7501(d). Such powers contemplated by this exception are specifically set forth in this subsection. 

With all that said, the best advice we can provide is non-technical. We would recommend that when officials are not able to comply with the Act, they seek other ways of complying with the spirit of the law, which is to ensure that the public at large has an opportunity to view their government in action. This may be accomplished through conference calls, video chats, transcription of meetings or otherwise recording the meeting and making the recording publicly available or otherwise accessible. 

Public participation pursuant to Section 710.1 is a necessity. Common-sense should also prevail here. There may be no singular way to meet this statutory requirement, but no doubt government officials working together can identify ways to permit their constituents to have a voice in a manner that is achievable given whatever technology and other methods of communication are available in their communities. 

Last, one should ensure that any action that deviates from any applicable statutory provision is necessitated because of the emergency. What can happen in the ordinary course of business should happen in the ordinary course of business with full and complete transparency after the emergency has ended. But that which must be done immediately (even if not related to the pandemic, but nonetheless still needs to be done), or that which must be done in order to respond to the emergency, would seem to constitute situations where appropriate deviation would comport with the spirit of the law and its exceptions. 

Although this document is informal and non-binding, we hope it provides both some guidance and suggestions for navigating through these difficult and challenging times. 

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