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Frequently Asked Questions

Please note that nothing contained within this site may be construed as "legal advice" from the Office of Legal Counsel. Some of the material found here has been condensed from statutes, regulations, court decisions, policies of the Commonwealth of Pennsylvania and of the State System, and other sources. Users should always consult with appropriate licensed counsel if specific legal or factual issues are involved. The materials here are presented for informational purposes only.

Contracting:

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Student Affairs:

University Governance:


CONTRACTS

I am a university Purchasing Agent and I submitted a contract for legal review and approval 3 weeks ago. How do I find out the status of that contract?
Generally, contracts that have not been returned to the university within 30 days are still with the Office of General Counsel or the Office of Attorney General. However, if you must find out the status of a particular contract, please contact: Jocelyn "Jocie" Winterborne at (717) 720-4030 or jwinterborne@passhe.edu.


Which contracts must be submitted for legal approval?
Legal review and approval is required for any contract for goods and/or services (including "agreements" and "memoranda of understanding") between a university and another party, except those contracts in amounts under $1,500 made exempt from review. The Commonwealth Attorneys Act authorizes the Office of Attorney General and the Governor's Office of General Counsel to review and approve our contracts, licenses, agreements of sale, deeds and leases. Exceptions must be based on written statements of authorized personnel.


Are all contracts reviewed by the Office of Attorney General and the Office of General Counsel?
The Office of Attorney General reviews all original Service Purchase contracts in excess of $20,000, and all bluebacks and amendments regardless of the dollar amount. Renewal contracts, provided there are no amendments other than those established by the original contract (i.e., change of price based on a predetermined formula or a change of term), only require the signature of university legal counsel.

The Office of General Counsel reviews contracts where the original term is in excess of $500,000.

Both offices retain the right at any time to review any contract should they request to do so.


Our university desires to enter into an agreement in which no dollar amounts are involved. Must this agreement be submitted for legal approval?

With limited exceptions, university legal counsel is required by the Commonwealth Attorneys Act to review and approve contracts and agreements entered into by the State System universities.


May I direct a contractor to perform services prior to approval?
Generally no, unless it falls within the statutory definition of emergency contracting as noted in the Commonwealth Procurement Code. State System employees may not approve the purchase of goods or services without a properly authorized contract. Moreover, no such employee is authorized to commit the agency to any contractual relationship covered by the appropriate statutes, regulations, and policies without the approval of legal counsel. Contractors proceed at their own risk of nonpayment if they initiate provision of goods or services prior to receipt of a contract requiring, where applicable, the approval of university legal counsel, the Office of the Chancellor, the Office of General Counsel, and/or the Office of Attorney General. Invitations to bid, requests for proposals, and other contact with vendors should make this clear, and explicitly provide that the university reserves the right to reject any and all bid, RFP's, etc.

However, recent amendments to the Procurement Code permit binding letters of intent before a contract for construction is effective. Such a letter permits the contractor to prepare to start work to the extent authorized by the letter and incur costs in preparation and performance of the contract. However, no work on the construction site shall begin and no payment can be made until the contract is fully executed. In the event that a contract is not signed, the contractor is entitled for actual expenses reasonably incurred. No payment should be made absent discussion with legal counsel and the signing of a release for claims.


Does the Procurement Code apply to all expenditures of contractual funds by a University?
Almost. There are three exceptions: a) if the funds are expended in compliance with federal requirements, b) if it involves a contract between Commonwealth agencies or other governments (except as provided in Chapter 19 of the Procurement Code), and c) if the expenditure is in compliance with funding by a gift, grant, bequest or cooperative agreement.


Do all purchases require formal bidding?
No. The non-bid ceiling for formal bidding as set forth in the Procurement Code is $10,000 for small procurements.


When must I bid?
With some exceptions, all contracts in excess of $19,100 must be competitively bid. (Competitive bidding is highly recommended for those contracts under $19,100.) Exceptions include, but are not limited to (1) contracts funded by federal funds or private donations regardless of the amount; (2) purchases from the Department of General Services’ master contracts by use of a purchase order; and (3) contracts where the contractor is the sole source of the requested service. The Office of Attorney General, however, sometimes requires that we demonstrate the accuracy of a sole source determination by showing that one, or preferably two, of what are the closest to what might be other apparently qualified bidders were contacted and failed to bid. Listing three contacts is the preferred procedure.


Where are procurement records to be kept?

The State System must establish and maintain a central office for the retention of information subject to public access under the Procurement Code. However, it is believed that Act 188 would permit decentralization of this function to university purchasing departments.


Is the public entitled to see procurement information?
The Procurement Code provides public access to any documents created by or provided to any Commonwealth agency for any procurement to the extent currently provided for in the Pennsylvania Right to Know Law. However, all such requests are to be reviewed with your university legal counsel.


Who has authority to sign contracts on behalf of the university?
Only those individuals designated by the university president as having contracting authority may sign contracts. Designations must be made in writing, specifying the dollar amounts to which such authority is given, and filed with the Office of the Chancellor. No other individuals should sign anything binding the university.


Does a contract ever require two signatures by university officials?
Yes. All purchases of goods and services in excess of $10,000 require the signature of a pre-designated individual who has fiscal authority at the university. Generally, this is the comptroller. The purpose of this signature is to verify that funds exist for payment pursuant to terms of the contract.


May a comptroller certify to fiscal responsibility AND bind the university if they have contracting authority to do so?
No. For the sake of the integrity of the process, the “comptroller” or person certifying the availability of funds and the fiscal appropriateness of the contract should be an individual separate and apart from the university official who signs on behalf of the university. This is designed as a check and balance system.


If bidding instructions are silent and DO NOT provide for any other individuals other than officers to sign on behalf of the corporation, may a university accept other signatures if a certified board resolution is provided? Must it reject the bid for noncompliance?
The bid need not be rejected for noncompliance if a certified board resolution is attached to the submission evidencing the authority of the signing individuals. For contracts, we permit the contractor to provide alternate signatures so long as they have proper documentation to support authority. Therefore, it should be reasonable to allow it in this instance also.

Statutory authority supports this position. The law provides that a document is properly executed by a corporation when “signed by one or more officers or agents having actual or apparent authority to sign it, OR by the President or Vice-President and Secretary or Treasurer. . . .” 15 Pa.C.S.A. §1506(a).


Does the Procurement Code define how long procurement records must be kept?
Yes. All procurement records shall be maintained for a minimum of three years. This requirement includes, but is not limited to, the following types of records a) determinations and other documents related to competitive sealed bidding, b) determination and other documents related to competitive sealed proposals, c) determination and other documents related to sole source procurement, d) determination and other documents related to emergency procurement, and e) determination and other documents related to competitive selection procedures for certain services.


I need to make an emergency repair and cannot wait. Does the Procurement Code allow me to do this and if so, how?
An emergency procurement is the need to purchase goods or services when circumstances do not permit the delays intrinsically involved in the mandatory competitive bidding practices. The contracting officer or his designee may make an emergency procurement when there exists a threat to public health, welfare or safety or circumstances outside the control of the university. Under no circumstances will bad planning be considered an "emergency" justifying this form of procurement.

Emergency contracts will not require the pre-approval of university legal counsel. However, great care must be taken to insure that any such contract would pass legal review based on the statutory criteria and any questions and concerns should be directed to counsel prior to the contractor commencing work. Rejection of the contract for failure to comply with emergency procurement criteria draws the university and contractor into an unavoidable, and preferably avoidable, contractual dispute.

All emergency contracts must be certified by the contracting officer or his designee by the pre-approved form prepared by the office of Chief Counsel when submitted for legal review. Unfortunately, any contracts failing to contain the mandatory certification will be returned to the university.

Although no formal bidding is mandated, informal solicitation methods such as attempting to secure at least 3 telephone bids/proposals, is still required.
 

There is only one known contractor I know that can provide the services I need. The contract is over $10,000. Do I really need to competitively bid this?
It depends. The procurement of a good, service, or construction item on a " sole source" basis involves the award of a contract without competition, where there is only one vendor available to provide such good, service, or item. Section 515 of the Procurement Code sets forth the requirements for sole source procurement. Note that you will be required to certify that only one vendor is capable of providing the goods or services.


Who should be signing sole source and emergency certifications?
The person signing either of these certifications on behalf of the university should have the contract authority to bind the university contract at the monetary level of the contract. For example, if the contract for which a certification is being submitted is anticipated to be $100,000, then the individual signing the certification must have contracting authority up to and including $100,000.


What is the time frame for an actual or prospective bidder to file a protest and how are such protests filed?
Actual or prospective bidders, offerors or contractors who believe that they are aggrieved may file a written protest to the Office of the Chancellor with a copy to the president of the issuing university within seven days after the claimant knows or should have known of the facts giving rise to the protest. Failure to do so is an untimely submission that can be disregarded.

Within 15 days of receipt of a protest, a university president may submit to the Office of the Chancellor and the protestant a response to the protest, including any documents or information he/she deems relevant to the protest. The protestant may file a reply to the response within ten (10) days of the response.

The Office of the Chancellor, or its designee, shall review the protest and any response or reply, and may request and review such additional documents or information he/she deems necessary to render a decision, and may, at its sole discretion, conduct a hearing. The Office of the Chancellor, or its designee, shall provide to the protestant and the contracting officer a reasonable opportunity to review and address any additional documents or information deemed necessary by the Office of the Chancellor, or its designee, to render a decision.

Upon completing an evaluation of the protest in accordance with the preceding paragraphs, the Office of the Chancellor, or its designee, shall issue a written determination stating the reasons for the decision. The determination shall be issued within 60 days of the receipt of the protest, unless extended by written consent of the Office of the Chancellor, or its designee, and the protestant. The determination shall be the final order of the purchasing agency.

Within 15 days of the mailing date of a final determination denying a protest, a protestant may file an appeal with the Commonwealth Court. Issues not raised by the protestant before the State System of Higher Education are deemed waived, and may not be raised before the court.

During the pending protest and until all avenues of appeal have been exhausted, the university may not proceed with the solicitation or with the award of the contract, unless it is determined by the contracting officer or designee that the protest is clearly without merit or that the award of the contract without delay is necessary to protect the substantial interests of the Commonwealth. University Legal Counsel should be consulted prior to any determination and subsequent action.


In what ways have procedures changed in regards to filing an action with the Board of Claims?
If a controversy arises between a contractor and a university as a result of a contractual relationship (i.e., breach of contract, mistake, misrepresentation or other cause for contract modification or recession), a claim must first be filed in writing with the contracting officer within six months after it accrues. If the contractor fails to file a claim or files an untimely claim, the contractor is deemed to have waived its right to assert a claim in any forum. The contracting officer has the authority to settle or resolve this action without the necessity of bringing the matter before the Board of Claims for formal adjudication. However, all settlements must be reviewed and approved by Chief Counsel.

If the controversy is not settled within 120 days, the contracting officer or designee must issue an opinion in writing unless both parties agree to an extension. That decision must state the reasons for the decision made as to the dispute and inform the contractor of its right to administrative and judicial review by the Board of Claims. The decision is to be served by registered mail.

The decision of the purchasing head shall be final, unless the contractor files a claim with the Board of Claims within 15 days of the mailing date of the final determination or within 135 days of filing a claim if no extension is agreed to by the parties, whichever occurs first. If the university does not issue a timely decision, the contractor may proceed to court as if an adverse decision was rendered.


Does the lowest responsible bidder always mean the lowest price?
Not necessarily. It depends on the criteria established in order to determine the successful bidder. If price is one of several criterion, then it is possible that a contractor with a more expensive bid may be awarded the contract.


Who is considered a lowest, responsible bidder?
The Procurement Code defines a responsible bidder as "a bidder that has submitted a responsible bid and that possesses the capability to fully perform the contract requirements in all respects and the integrity and reliability to assure good faith performance." The courts of the Commonwealth have uniformly held that the question of who is the lowest responsible bidder is one for the sound discretion of the contracting officer, and does not necessarily mean the one whose bid on its face is lowest in dollars. Other criteria to be considered includes financial responsibility, also integrity, efficiency, industry, experience, promptness, and ability to successfully carry out the particular undertaking, and that a bond will not supply the lack of these characteristics.


Can we consider someone not responsible based on rumors and award a contract to a higher bidder?
No. To award the contract to a higher bidder capriciously without a full and careful investigation is an abuse of discretion. Where a full investigation discloses a substantial reason that appeals to the sound discretion of the contracting officer, the university may award a contract to one not in dollars the lowest bidder. The sound discretion, which is upheld, must be based upon a knowledge of the real situation gained by a careful investigation.


A mistake was made by the university in the bidding process and a project is now economically unfeasible. Can a request for proposals or an invitation to bid be cancelled by the university?
Yes. An invitation for bids, a request for proposals or other solicitation may be canceled or any and all bids or proposals may be rejected when it is in the best interest of the Commonwealth. Bids may be rejected in part when specified in the solicitation. The reasons for the cancellation or rejection myst be made part of the contract file. Universities are permitted to exercise their expertise in determining whether a project will sufficiently benefit the Commonwealth.


A contractor is doing a great job with a project. While he is on campus, can he take care of a similar project that would not constitute a small procurement and just amend the contract?
Probably not. The Commonwealth cannot amend a contract beyond the scope of what was provided for in the original. To procure such additional goods and/or services under the guise of "an extension of work" may be a violation of the competitive bidding requirements.


Will regulations be promulgated regarding the Procurement Code and by who?
Department of General Services retains authority to promulgate regulations governing the procurement, management, control, and disposal of any and all supplies, services and construction to be procured by Commonwealth agencies, including the State System. This could include the authority of DGS to "audit" and "monitor" the implementation of its regulations and the requirements of the Procurement Code. The State System will have to monitor and participate in the regulatory review process in order to have input into those regulations authorized under the Procurement Code.


Does the Procurement Code regulate the behavior of Commonwealth employees?
In a manner. The Procurement Code incorporates the provision of the Public Official Ethics Act, and the State Adverse Interest Act. The Procurement Code also states that it is the duty of public employees to act impartially in regards to the procurement process. It is also unlawful for any employee to require that a bond be furnished by a particular surety company, agent, or broker. Anyone found in violation of this section could be found guilty of having committed a misdemeanor of the first degree. Lastly, Chapter 45 of the Procurement Code incorporates the provisions of the Anti-bid Rigging Act. Conviction under this chapter could result in both criminal and civil sanctions.


What is bid-rigging and how does it play a part in procurement?
Bid-rigging is when two or more individuals conspire together to determine in advance the winning bidder of a contract involving a government agency. It includes, but is not limited to, the following scenarios:
  1. Agreeing to sell items or services at the same price.
  2. Agreeing to submit identical bids.
  3. Agreeing to rotate bids.
  4. Agreeing to share profits with a contractor who does not submit the low bid.
  5. Submitting prearranged bids, agreed-upon higher or lower bids or other complementary bids.
  6. Agreeing to set up territories to restrict competition.
  7. Agreeing not to submit bids.
It is illegal for any person individually, or with another person, to engage in bid-rigging involving a contract for the purchase of goods, equipment, services or materials or for construction or repair and/or a subcontract for the purchase of equipment, goods, services or material or for construction or repair with a prime contractor or proposed prime contractor for a government agency.

Any university which discovers that it is the victim of bid-rigging as a result of any contractor, third party, and/or Commonwealth employee has the authority to sue in a civil action all participants for the recovery for the full amount of damages, which are then tripled. In addition, damages, which are awarded in a successful action, also include the cost of the suits plus reasonable attorney fees. The statute of limitations for such an action is four years from the date the action arose and cannot extend past ten years from the date the contract was signed by the parties. As far as criminal penalties are concerned, any entity found to have engaged in anti-bid rigging activities can be sentenced to pay a fine of up to one million dollars ($1,000,000). An individual can be fined up to fifty thousand dollars ($50,000) and/or serve a prison term of three years.


In the past, the university has been very impressed in regards to a contractor. Can I write my request in such a way that he would be a shoe-in? He is a known quantity and the university knows it will get value for its money.
No. A "not-so-distant cousin" to anti-bid rigging is specification rigging. This occurs when the writing of a specification is so restrictive that it virtually guarantees the awarding of the contract to a pre-selected individual. In that this is a pre-conceived arrangement, which requires advance knowledge of a contractor's capability and the intent to exclude others, this is technically a violation of the anti-bid rigging laws. Effort should be made to insure that this does not occur either intentionally or unintentionally.


Are all the procurement laws found in the Procurement Code?
No. There are four laws that were not incorporated into the Procurement Code but still require compliance. Although not in the Procurement Code, universities must still adhere to the Steel Products Procurement Act, the Prevailing Wage Law, the Separations Act, and the law relating to interest on delinquent payments to nonconstruction contracts.


Are there other new things in the Procurement Code not addressed here?
Absolutely, and all personnel who contract on behalf of the universities should reference the new edition of the Contract Manual which was initially distributed in February of 1999 and is regularly updated via the office of legal counsel's web page. Monthly checks of the web page are strongly encouraged to ensure receipt of modification and alterations.

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AFFILIATION AGREEMENTS

What is an "affiliation agreement"?
An affiliation agreement is between a university and another entity for purposes of providing an educational opportunity for students generally in a supervisory situation such as a clinical experience, an internship program, or a student teaching assignment. Such contracts can be with federal agencies (i.e. prisons or Veterans Administration Hospitals), other state entities, school districts or private companies/businesses. The purpose of such agreements is to memorialize each party’s rights and responsibilities in regards to this educational opportunity.


What is the difference between "affiliation" and "articulation" agreements?
An articulation agreement is between two academic institutions regarding the administration of a joint degree or a cooperative academic program, as opposed to an internship or clinical experience.


Do these agreements require attorney review and approval?
The Office of Legal Counsel has prepared several templates which cover a wide variety of affiliation experiences and are contained in the appendix of the Handbook for Academic Agreements. The manual is posted on the Office of Legal Counsel’s web site. If these agreements are utilized without any alternations (but for information to be inserted in the given blanks provided), legal review is not necessary. However, if these templates are altered in any capacity, or the affiliated entity desires to use their own agreement, legal review is required.


The hospital requires us to maintain insurance for the student interns? Must we comply?
The University cannot and does not procure professional liability insurance for its students because there exists no statutory authority for such. The agreement should be crafted to reflect that a student shall be responsible for the procurement of such insurance at levels acceptable to the affiliated entity.

If participation is contingent on compliance, a student should be advised of the requirement as a prerequisite to obtaining a placement at this site. If the site mandates that the University procure the insurance, then an agreement between the parties will not occur and an alternative placement will have to be secured.


The hospital requires us to purchase and maintain insurance for our employees who will be at the site. How do we resolve this issue since our employees are already covered by insurance?
There exists no statutory authority for a Commonwealth agency to procure insurance and it does not buy casualty, loss, liability, or fidelity insurance for its property, assets or employees as a general rule. The Department of General Services (DGS) through the Bureau of Risk and Insurance Management (BRIM) has the authority to administer the Commonwealth self-insurance program.

Provisions that require a student to purchase insurance are acceptable. Provisions that require faculty to purchase insurance are not permissible in that it results in a change in the terms and conditions of their employment. The following can be used where a contractor insists on substitute language for an insurance clause or can be provided to the affiliated entity by way of explanation as to the Commonwealth’s self-insurance program:
____________________ University of Pennsylvania, is a part of the State System of Higher Education, a body corporate and politic, constituting a public corporation and government entity. As such, it lacks the statutory authority to purchase insurance and it does not possess insurance documentation per se (i.e., certificates of insurance). Instead, it participates in the Commonwealth's Tort Claims Self-Insurance Program administered by the Bureau of Risk and Insurance Management of the Pennsylvania Department of General Services. The program covers Commonwealth/University-owned property, employees and officials acting within the scope of their employment, and claims arising out of the University's performance under this agreement, subject to the provisions of the Tort Claims Act, 42Pa.C.S.A. §8521, et seq.
If this is not acceptable, then it is possible that an agreement may not be reached.


May we enter into an affiliation agreement that includes a term for 10 years?
Any contract in excess of five years must have good cause and the expressed written approval of Chief Counsel prior to submission of the contract.


We are considering a foreign placement with a school in Ontario, Canada. That school's form agreement provides that the laws of Ontario will govern. Is this permissible?
A contract will not meet with legal approval if it requires that the laws of another state or country apply to its interpretation. All contracts involving Commonwealth contracts entered into by any Commonwealth agency are obligated to be interpreted and enforced under Pennsylvania law, in courts and agencies of appropriate jurisdiction in this Commonwealth or else various legal protections could be compromised. There are no exceptions to this requirement. If necessary, the alternative is for the agreement to say nothing as to this issue.


How do we resolve the issue when a hospital insists that we indemnify or hold them harmless from any claims, costs, etc. due to the actions of our students or employees?
This is always a challenging situation. The best thing to do is to educate the affiliated entity that the university cannot waive its statutory right of sovereign immunity.

Clauses, which demand that the university not hold an affiliator legally responsible for any actions or to reimburse the affiliator for any damages, are strictly prohibited. These are commonly noted as “Indemnification and Hold-Harmless Clauses.” As an alternative, the language below is commonly substituted and is to be included in every affiliation agreement as standard language. This clause acknowledges that each party has the right to pursue whatever remedies are available to them as provided by law. In that the law strictly prohibits certain litigation or the awarding of certain damages against the Commonwealth (sovereign immunity), the university is, for the most part, protected by statutory authority. The language below can be offered as an alternative:

Liability. Neither of the parties shall assume any liabilities to each other. As to liability to each other or death to persons, or damages to property, the parties do not waive any defense as a result of entering into this contract. This provision shall not be construed to limit the Commonwealth's rights, claims or defenses which arise as a matter of law pursuant to any provisions of this contract. This provision shall not be construed to limit the sovereign immunity of the Commonwealth or of the State System of Higher Education or the University.


The affiliated entity has not returned a signed agreement and the semester starts tomorrow. Can we place the student while waiting for the contract to be returned?
No student should be placed absent having a fully executed agreement which includes the review and approval of your university attorney if such review is required. If legal review is not required because of utilizing a pre-approved form from the handbook, the contract must be in the possession of the University with the affiliated entity’s signature.


Who can sign affiliation contracts on behalf of the university?
Only the President of the University may sign an agreement and any other party specifically delegated by the President in writing. No person should sign an agreement on behalf of the University unless they are specifically delegated to do so. A person without delegation who signs an agreement will be acting outside the scope of his or her employment and can be held personally liable for obligations created by the inappropriate signing of the agreement.

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DETERMINATION OF RESIDENCY FOR TUITION PURPOSES

How do I qualify as an in-state resident for tuition purposes?
Residency for tuition purposes is defined and solely controlled by regulations of the Board of Governors of the State System of Higher Education. In order to qualify under the regulations, an individual must be able to demonstrate an established intent to reside permanently or indefinitely in the Commonwealth of Pennsylvania. There are numerous factors that may be considered in determining whether or not an individual has this appropriate intent.


What does "domicile" mean?
"Domicile" is a legal term that is defined as the place where an individual intends to remain and live permanently or indefinitely. It is the place where a person intends to return to after any absence. A person may live in a place for temporary purposes, such as a vacation or attending college. Once the goal of the temporary purpose is accomplished, however, the person does not intend to remain in that place. Since the person's presence is only for temporary reasons, the individual cannot be considered an in-state resident for tuition purposes.


How can I show that I intend to live in Pennsylvania either permanently or indefinitely?
Because the intent to reside in-state is subjective, only you can know your true intent. Your actions and conduct, however, can demonstrate to others whether you possess such intent. You alone have the burden of proving by clear and convincing evidence that you possess the requisite intent to reside in Pennsylvania either permanently or indefinitely. Based upon the evidence that you submit or that may otherwise be available, a university administrator or committee will decide whether it is more likely than not that you intend to remain in Pennsylvania on a permanent or indefinite basis. Your overall conduct and actions will be reviewed and no single factor can demonstrate the appropriate intent to remain living in state.

A decision will be made by looking at your total circumstances as to whether your conduct and actions show that you are not merely living in Pennsylvania for the temporary purpose of attending college. There is no checklist of conduct or actions that will automatically result in anyone being reclassified as an in-state resident. In an application for classification, you will, however, be asked a number of questions. The items of information requested are not equally demonstrative of one's intent to reside in Pennsylvania. Certain actions can be easily taken, although a person only intends to temporarily reside in Pennsylvania. Thus, it will be the quality and not the quantity of information you submit that will lead to a determination.

Among the information you will be requested to submit for review is the following:
  • Do you have financial aid based upon maintaining a residency in a state other than Pennsylvania?
  • Do you lease or own a permanent, independent residence in Pennsylvania?
  • Do you pay Pennsylvania and local taxes, particularly during temporary absences from the state?
  • Have you transferred back accounts, stock, automobiles and other registered property in state?
  • Did you obtain a Pennsylvania driver's license and register your automobile in Pennsylvania?
  • Do you have permanent, full-time employment in Pennsylvania?
  • Do you have memberships in social, civic, political, athletic and religious organizations in state?

This list of questions should not be considered a checklist, nor are you limited to furnishing only the information requested on an application for classification form. The questions here and on the form are only intended to give an indication of the type of action or conduct that can be considered in deciding residency status. You have the opportunity to provide any and all evidence that you believe supports your position that you intend to reside in Pennsylvania on a permanent or indefinite basis. In particular, you will want to demonstrate that your presence in the state is not merely for the purpose of attending college.


If I have not lived in Pennsylvania for 12 months prior to registering as a college or university student, can I still establish residency for tuition purposes?
If you have continuously resided in Pennsylvania for a period of twelve months prior to enrolling in a Pennsylvania institution of higher education, you are presumed to be a Pennsylvania resident. But, if you have resided in Pennsylvania for a shorter period of time, there is a presumption that you are not a Pennsylvania resident. This is not a conclusive presumption, however, only a rebuttable presumption. This means that the presumption may be overcome by demonstrating through clear and convincing evidence your intent to reside in the state on a permanent or indefinite basis. In order to establish Pennsylvania residency, you will have to show evidence that sufficiently convinces a reasonable person that it is more likely true than not that you are in fact residing permanently or indefinitely in Pennsylvania. Your evidence should prove that you are not in Pennsylvania solely to attend college.


I have lived in Pennsylvania for 12 months, why was I classified as an out-of-state student?

You will continue to be classified as an out-of-state student for as long as you are unable to prove that you intend to reside permanently or indefinitely in Pennsylvania. If your circumstances show that you are merely in Pennsylvania to attend college, you will not be reclassified to in-state status. Certain factors, such as temporary summer or part-time school year employment in Pennsylvania, are not significant factors and are merely a consequence of your primary purpose to attend college.


I am 20 years old and am registered to vote, why does the university still consider me to be a minor?
Residency for tuition purposes is completely controlled by the regulations of the Board of Governors of the State System of Higher Education. The regulations specifically state that the age of majority for the determination of residency for tuition purposes is twenty-two years of age. Other laws, such as voter registration, may have a different age for obtaining majority status, but these laws do not apply to determinations of residency for tuition purposes.


May I ask the university to re-classify me as an in-state student?
Yes, if you are unsatisfied with the original classification determination by the university, you may challenge it by filing a written petition stating the reasons for your claim of in-state status with the appropriate university administrator or committee. This must be done within 30 days of the original determination. You will also have to provide a notarized reclassification data form for the university to consider your petition.

You may also petition for the university to review your classification in a subsequent year of enrollment, but only if there has been some significant change of circumstances that would indicate that you have established the intent to permanently or indefinitely reside in Pennsylvania. This means that you must be able to show that your purpose for continuing to be in Pennsylvania is not solely to attend school. Factors such as temporary employment or a change in family circumstances will generally not be considered a significant change in circumstances to change a classification.


If I disagree with the university's determination, may I file an appeal?

If you continue to disagree with the university's determination of your classification, you may make a written appeal to the Office of the Chancellor within 30 days of the date that the university's decision is mailed to you. The Office of the Chancellor will designate a hearing officer to review the appeal and make recommendations for the Chancellor's decision. You, as well as the university, will be permitted to submit additional information to be considered and a written argument to support your position. The Chancellor's written decision on appeal will be decided within 90 days of receipt of your appeal and will be the final decision within the State System of Higher Education.

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EMPLOYMENT

A university supervisor observed a faculty member "borrowing" boxes of paper from the storage room, placing them in the trunk of his car and using the petty cash fund for questionable purposes. Last year, the university had reprimanded this same faculty member for similar actions. In light of the previous misconduct and considering the fact that there is a witness to the more recent events, is the university able to immediately issue a letter of suspension informing the faculty member not to return to work for two weeks?
No. Although the university wants to suspend the faculty member (as opposed to terminating him or her), it is highly recommended that the university hold a pre-disciplinary conference before taking action. The purpose of a pre-disciplinary conference is to ensure a faculty member's constitutionally guaranteed right to due process is not violated. Protection of one's due process rights is accomplished by informing the employee of the charge and giving the employee an opportunity to explain his or her side of the story before any decision is made regarding discipline. Put another way, the pre-disciplinary conference is an initial check against mistaken decisions, which allows the university to determine if there are reasonable grounds to support the charges against the faculty member before any action is taken.

Of course, it is always a good idea to review the termination and suspension provisions in the collective bargaining agreement in place between the State System and the Association of Pennsylvania State College and University Faculties ("APSCUF") before taking any employment action. See Article 15.F.1 and 2.


A university scheduled a pre-disciplinary conference with a faculty member for insubordination. The faculty member refuses to attend the conference unless she is permitted to have an attorney present. Must the university acquiesce to her demand?
No. Pursuant to the Sixth Amendment of the United States Constitution and Article 1, Section 9, of the Pennsylvania Constitution, an individual is only able to assert a right to legal counsel in criminal prosecutions.
 
It is worth noting, however, that faculty members in the State System are part of a unionized workforce, represented by APSCUF. As a result, faculty members possess the right to have a union representative present when a faculty member attends a meeting that he or she reasonably believes could lead to disciplinary action, even if the sole purpose of the interview is to get the faculty member's side of the story. See National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975) and Conneaut School District, 12 PPER ¶12155 (Final Order 1981). This right is specifically set forth in Article 43, Section C, of the collective bargaining agreement between APSCUF and the State System. Accordingly, it would be wise to refer to this article before undertaking any investigation of a faculty member for workplace misconduct.


A university recently received allegations of sexual harassment of a secretary by a faculty member. Instead of directly presenting her allegations to the university, the secretary filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Now that the university is aware of the allegations should it place an investigation in abeyance until pending the outcome of the EEOC complaint?
No. Once the university becomes aware of sexual harassment allegations, it should immediately conduct an internal investigation even if an employee initially filed a sexual harassment complaint with the EEOC. The fact that the employee did not invoke the university's internal complaint procedure does not mean that the university is absolved of its duty to investigate the allegations. Instead, doing a prompt, thorough investigation helps to limit potential liability against the university under Title VII of the Civil Rights Act of 1964. It also eliminates an employee's ability to file a complaint asserting that the university retaliated against an employee by failing to investigate sexual harassment allegations after the university became aware of them.

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LIABILITY AND INSURANCE

What is sovereign immunity?
An ancient legal term, "sovereign immunity" refers to the doctrine of English common law under which the King (sovereign) could not be sued for civil wrongs or torts. The Crown enjoyed legal immunity from such claims. After the American Revolution, this legal immunity was assumed by the state governments, including that of the Commonwealth of Pennsylvania. Generally speaking, the Commonwealth (which includes the State System and its constituent universities) has sovereign immunity from all tort claims, except for claims involving nine areas where such immunity has been specifically waived by the Legislature. These waived areas include, among others, dangerous conditions of Commonwealth-owned real estate, the care, custody and control of personal property, and vehicle liability. If a claim falls within one of the nine waived areas, no sovereign immunity exists, and the University and/or its employees could be held liable.


Can I be held personally liable for injuries that I may cause while I am employed with the State System?

Generally speaking, so long as an employee is acting within the scope of his employment and in good faith, he will be defended and indemnified by the Commonwealth for injury or damages caused to others. Determinations in this regard are made by the State System's Chief Counsel in consultation with the Office of General Counsel and the Attorney General's Office.


What and who does the Commonwealth of Pennsylvania's liability insurance program cover?
As a state agency, the State System participates in two self-insurance programs administered by the Bureau of Risk and Insurance Management (BRIM) of the Department of General Services. The Tort Claims Self-Insurance Program covers eligible losses resulting from tort claims made against Commonwealth agencies and/or employees for wrongful acts resulting in injury to persons and property. The Employee Liability Self-Insurance Program (ELSIP) covers claims or suits for civil rights errors and omissions made against specifically named state officials or employee defendants who are acting in good faith and within the scope of their employment.


Are volunteers eligible for legal defense and indemnification under the program?

Generally, individuals who are acting as duly registered and authorized volunteers in compliance with Board of Governors Policy No. 1991-04 are entitled to legal defense and indemnification by the Commonwealth for liability arising from their acts or omissions, provided they are acting within the scope of their official duties and in good faith, to the same extent as officials and employees of the State System.


Are students eligible for legal defense under the program?

Students are generally not eligible for either legal defense or indemnification unless they are acting as duly registered and authorized volunteers in compliance with Board of Governors Policy No. 1991-04.


If I am sued, will I be provided with an attorney?

Generally speaking, if you are a State System employee who is acting within the scope of your employment and in good faith, or if you are a duly registered and authorized volunteer in compliance with Board of Governors Policy No. 1991-04, and are named as a defendant in a civil claim or lawsuit arising out of your acts or omissions, you will be legally defended by the Commonwealth and indemnified from any resulting monetary judgment against you. Determinations concerning whether an employee or volunteer is acting within the scope of her employment and in good faith are made by the Chief Counsel of the State System in consultation with the Office of General Counsel and the Attorney General's Office.

Employees named as defendants in criminal actions arising from acts or omissions occurring while in the service of the Commonwealth are required to retain private (non-Commonwealth) counsel. In the event it is ultimately determined by the Chief Counsel of the State System, in consultation with the Office of General Counsel, that there is no basis for the criminal prosecution as a matter of law or fact, the Commonwealth may reimburse the employee for reasonable attorneys fees.

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Americans with Disabilities Act

It is also to ensure that no covered entity under the statute shall discriminate against a qualified individual with a disability, because of the disability, in regards to job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; and other terms and conditions of employment.
The ADA applies to state governmental entities.



What makes a person "disabled" under the Americans with Disabilities Act (ADA)?
The term disability encompasses one of three situations where a person has:
  1. a physical or mental impairment that substantially limits one or more of the major life activities of an individual;
  2. a record of an impairment that substantially limits one or more of the major life activities of an individual; or
  3. being regarded by others as having an impairment that substantially limits one or more of the major life activities of an individual even though no disability may actually exist. It is the perception of having a disability.
As a rule of thumb, brief and transitory illnesses or injuries that have no permanent or long-term effects on an individual’s life activities are not disabilities for purposes of the Act.


What is a "major life activity?"
Major life activities include (but are not limited to) functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. It also includes sitting, standing, lifting and reaching.

The restriction of the major life activity must be a result of an impairment. Advanced age, physical or personality characteristics, and environmental, cultural and economic disadvantages are not impairments that constitute a disability even if they substantially limit a major life activity.


What obligations does a university have to an employee who meets the definition of disabled under the ADA?
The obligation of the university is to provide a "reasonable accommodation." This is a flexible concept, and the provision of a reasonable accommodation must be done on a case-by-case basis.

A reasonable accommodation may not create an undue hardship that would impose a significant difficulty or expense upon the university. This not only encompasses financial hardship, but requests that are unduly extensive, substantial, or disruptive or would fundamentally alter the nature or operation of the university.


What constitutes a reasonable accommodation?
Three common categories of reasonable accommodations are:
  1. modifications of the job application process that enables a qualified applicant with a disability to be considered for the position such qualified applicant desires;
  2. modifications of the work environment or the manner in which a job is performed that enable a qualified person to perform the essential functions of that position; and
  3. modifications that enable disabled employees to enjoy the privileges and benefits of employment on an equal basis as other employees similarly situated.
Examples of modifications may include: making existing facilities accessible, job restructuring, part-time or modified work schedules, acquiring or modifying equipment, changing tests, training materials or policies, providing qualified readers or interpreters and reassignment to a vacant position. Of course, other items may be considered as reasonable accommodations and consideration of such should be made on a case-by-case basis.


Must the university provide the accommodation requested by the employee?
There is no requirement that the university must give the accommodation requested by the employee, so long as the employer’s chosen accommodation is effective. This means that the reasonable accommodation offered enables the person to perform the essential functions of the position and provides the individual an equal opportunity to enjoy the benefits and privileges or employment that employees without disabilities enjoy.


What if medicine or some other "mitigating measure" can be taken to eliminate the disability? Is an individual still deemed disabled under the Act?
In 1999, the United States Supreme Court determined that use of "mitigating measures," such as medication, glasses, or prosthesis, or the use of "mitigating behaviors," must be considered in assessing whether a person has a disability under the ADA. Although each individual’s needs must be assessed on a case-by-case basis, the Court concluded that mitigating measures or behaviors that alleviate a disability could result in a finding of no disability and therefore no requirement to provide accommodation.


A faculty member refuses to allow a student with a disability to tape record her class. May a faculty member, or any university employee, refuse to honor an accommodation found to be reasonable by the university administration?
No. An accommodation is required pursuant to federal statute. There is a statutory obligation on the part of the university to provide the accommodation once it has been determined to be reasonable.


A student has a disability that requires note takers. However, she is demanding that her classes be videotaped. Must the university provide the accommodation she requests?
No. There is no obligation to provide an accommodation that is unreasonable. An unreasonable accommodation can be:
  1. a request that would impose an undue administrative burden;
  2. a request that would impose a financial burden or hardship on the university; and/or
  3. a request that would require a fundamental alteration of the university’s academic program.
There is also no requirement that obligates the university to provide an accommodation as specifically requested by a student. However, the accommodation that is provided by the university must effectively meet the student’s needs and is to be determined on a case-by-case basis. If an alternative accommodation is provided but is not effective, it would be analogous to the university providing no accommodation at all. To be successful, this must be an interactive process between the university and the student.


A student desires a modification of the university’s academic program as his request for accommodation. Is this required?
A university must reasonably modify its polices, practices or procedures to avoid discrimination but, if it can demonstrate that the modifications would fundamentally alter the nature of its services, program or activity, the university is not required to make the modification. A qualified student, to be accorded an accommodation, must be able to meet and maintain academic standards, with or without the accommodation. There is no obligation to lower academic standards for any student.

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Discriminatory Behavior

Title VII of the federal Civil Rights Act of 1964 protects individuals against employment discrimination on the grounds of race, color, sex, national origin and religion.

Title VII makes it unlawful for an employer to discriminate against an employee or applicant because of his or her race, color, sex, national origin and/or religion in regards to hiring, termination, promotion, compensation, job training, or any other term condition or privilege of employment. Title VII also prohibits employment decision based on stereotypes or assumptions as well as neutral job policies that disproportionately exclude protected classes that are not related to the job.


Are there any protections afforded under state law?
In Pennsylvania, protections against discrimination are also afforded under the Pennsylvania Human Relations Act (PHRA). The PHRA protected classes include race, color, religion, ancestry, age (40 or older), sex, national origin, non-job related handicap or disability, use of guide or support animal because of blindness or deafness of the user, the handicap or disability of an individual with whom a person is known to have a relationship or association, or possession of a diploma based on a passing general education development (GED) certificate test as opposed to a high school diploma.

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Sexual Harassment

Sexual harassment are unwelcome sexual advances, requests for sexual favors and/or other verbal or physical conduct of a sexual nature that are either used as a basis for employment decisions and/or the conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.

What types of behavior have been found to constitute sexual harassment?
  1. repeated sexual innuendo, obscene or off-color jokes, slurs, lewd remarks and language;
  2. content is letters and notes, faxes, e-mail, graffiti that is of a sexual nature or sexually abusive;
  3. sexual propositions, insults and threats;
  4. sexually oriented demeaning names;
  5. persistent unwanted sexual or romantic overtures or attention;
  6. displaying pornographic pictures, calendars, cartoons, or other sexual material in the workplace;
  7. coerced or unwelcome touching, patting, brushing up against, pinching, kissing, stroking, massaging, squeezing fondling or tickling;
  8. subtle or overt pressure for sexual favors;
  9. coerced sexual intercourse (i.e., as a condition of employment or academic status).
Does teasing or "kidding around" constitute sexual harassment?
Simple teasing, off-hand comments, and isolated incidences, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment in order to constitute sexual harassment. However, though not legally actionable, this type of behavior that results in uncomfortable feelings within the workplace should be avoided as a matter of good employment practices.


What constitutes a hostile working environment?
EEOC investigators look at several factors to determine whether a working environment is hostile. Some of the factors considered include:
  1. whether the conduct was verbal, physical or both;
  2. how frequently it was repeated;
  3. whether the conduct was hostile or offensive;
  4. whether the alleged harasser was a co-worker or supervisor;
  5. whether others joined in perpetrating the harassment;
  6. whether the harassment was directed at more than on individual;
  7. what happened when senior management became aware of the situation;
  8. was the behavior dealt with immediately or condoned.


Who can create a hostile environment?
A hostile environment can be created by anyone in the workplace whether it is management or co-workers. However, in order to be legally actionable, it most occur on some sort of regular basis.


Can a co-worker, as opposed to a supervisor, be considered a harasser?
Yes. Sexual harassment can occur in two forms: "hostile environment" which is created by anyone in the workplace, such as a co-worker, when sexually oriented conduct creates an offensive and unpleasant working environment.
"Quid pro quo" harassment occurs between a worker and a supervisor when by the very nature of the supervisory relationship, decisions regarding employment are promised, threatened or given based on whether the employees will participate to the sexually oriented conduct.


Does a one-time event constitute sexual harassment?
Generally no, at least in the cases of sexual harassment based on a hostile working environment. However, in quid pro quo cases, one time may be enough if the action is so pervasive to alter the conditions of the victim’s employment such as in the case of a discharge, demotion or undesirable reassignment, changes in benefits or changes in employment.


Can sexual harassment occur between individuals of the same sex?
Yes. The Supreme Court ruled in the Oncale decision of 1998 that sexual harassment can occur between individuals of the same gender.


What should an individual do if he or she feels they are being sexually harassed?
Immediately follow the protocol outlined in the policy of the University.


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STUDENT PRIVACY/FERPA

What is FERPA?
FERPA is the acronym for the federal statute titled the Family Educational Rights and Privacy Act [20 U.S.C. §1029(f) and 20 U.S.C. §1232(g)], and is also commonly known as the “Buckley Amendment.” This statute protects the privacy of a student’s educational record and prohibits the release of student information to third parties absent the student’s consent, unless such information is defined as “directory information”. Directory information includes the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degree and award received, most recent previous educational agency or institution attended by the student, e-mail address, and other information as defined by university policy that is not contradictory to the statute.


Can a student refuse to the release of directory information?
Yes, if the student advises the university in writing. Even directory information can be withheld from release.


Are a student’s educational records never released under any circumstances?
No, a student’s educational record can be released, even absent the student’s consent, in several circumstances. A student’s educational record can be released to school officials who have a legitimate educational interest; in connection with a student’s application for, or receipt of financial aid; to accrediting organizations in order to carry out their accrediting functions; and when a university is issued a valid, enforceable subpoena, in addition to other limited situations. In that subpoenas from other states are not enforceable in Pennsylvania, information should not be released in such circumstances, and no information should be released pursuant to a subpoena absent consultation with university legal counsel.


Will a student know when educational records are released in the event of a subpoena?
Yes. The university has the obligation of advising a student in writing that records will be released prior to the release of the records to afford the student an opportunity to legally challenge the subpoena. The university should attempt to do so at the last known address of the student. However, the university is powerless in this situation. Unless a court order is served to the contrary, the university must comply with the subpoena and tender the information by the date and time noted. Information in these circumstances should be forwarded to university legal counsel who will review the information and forward it to the requesting party.


Are discipline records educational records?
Yes, discipline records are educational records, but as a result of statutory amendments made in 1998, a university can release such records under federal law that involves either a crime of violence or a non-forcible sexual offense. Federal law defines a crime of violence as being either “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or a “felony that by its nature involves a substantial risk of force.”

This release is permissible and not mandatory and is limited to the disclosure of the student’s name, the violation committed, and the imposed sanction. Information on any other student, including the victim or a witness, is prohibited and the ability to release such information may occur after all avenues of the student disciplinary process have been exhausted, including appeals.


If certain discipline records are permitted to be released under federal law, may the university do so in those limited circumstances?
Although federal law permits, but does not mandate, the disclosure of such information, the release of such information would still violate laws of the Commonwealth. The Pennsylvania Right to Know Law, 65 Pa.C.S.A. §66.1, et seq., exempts from public release records that may affect an individual’s personal security and reputation. Any requests for information that constitutes the educational record of a student should be discussed with university legal counsel prior to any action being taken.


Can parents be contacted/advised as to student discipline issues?
The 1998 amendments now permit the disclosure of information to a parent or legal guardian of a student who has violated a law or institutional policy involving the possession or use of alcohol or a controlled substance. The release can only be made if the student is both under the age of 21 and has been determined by the institution to be a violation of its disciplinary policy for the same behavior unless state law prohibits the disclosure. A review of Pennsylvania’s laws indicates no prohibition for the release of such information. However, information involving the identity of third parties is to be strictly protected.


Are there penalties for inappropriately releasing information that is defined as a student’s educational record?
Yes. A university can lose its federal funding.


May a university employee who is authorized by law to access a computer database browse its records?
No. Although an individual may be granted access to an entire database, access is not permitted to any student’s educational record unless there is consent or a legitimate need as defined by FERPA. Under FERPA, an official of an institution who has access to all student records does not have the right to browse the records that he or she has no employment-related reason to view. It is the actual perusal of the record, not simply the ability to access the record, that triggers FERPA.


A student organization recognized by a university requests a list of all foreign-born students by country of citizenship for the stated purpose of making the students feel at home. In addition, the group requests a directory of all students, listing their local and permanent addresses and telephone numbers. Should a custodian of the record comply with this request?
The first step in the analysis would be to determine whether the people in the student organization are school officials. Since the group is not part of the university, its leaders could not be characterized as “school officials.” Thus, the group would only be allowed access to directory information.


May a university’s development or alumni office be permitted to search student records for purposes of advancing the university’s educational mission?
No. The access of the information by the development and alumni offices are not an example of a “legitimate educational interest” because under FERPA regulations this interest relates specifically to the educational interests of the student as opposed to the university.


Campus police would like the educational record of a student believed to be a suspect in the breaking and entering of a dormitory room. Should the records be accessed?
No. Absent a subpoena or court order, no release should occur since the student’s records are not being used for a legitimate educational interest, but for purposes of law enforcement.


Does the USA PATRIOT Act of 2001 (relating to the prevention of terrorist activities in the United States) have any effect upon FERPA rights?
Yes. The 2001 Act amends FERPA to allow universities to disclose educational records to a federal law enforcement officer without student consent, where the officer has presented a valid court order. For a complete summary of the FERPA amendment, see the April 12, 2002 letter issued by the Family Policy Compliance Office of the United States Department of Education.


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OPEN MEETINGS (Sunshine) LAW

What is the purpose of the Sunshine Act?
The purpose of the Pennsylvania Open Meetings (Sunshine Act) Law, 65 P.S. §§ 271, et seq., as a matter of public policy, is to insure that Pennsylvania citizens have notice of, and the right to attend, all meetings of public agencies at which any agency business is discussed or acted upon.

Can a public body make decisions and decide official actions over lunch or in any other private setting?
No. Any official action and deliberations by a quorum of the members of any public agency shall take place at a meeting open to the public, unless it is permitted to be a closed meeting. Deliberation is considered to be the discussion of agency business for the purpose of making a decision. Agency business consists of the framing, preparation, making or enactment of laws, policy or regulations, the creation of a contractual liability, or the adjudication of rights, duties and responsibilities. This does not include administrative actions. Administrative actions are the execution of policies relating to persons or things that were previously authorized or official actions of the agency which were adopted at an open meeting. Administrative action does not include the deliberation of agency business.


How should votes be cast in a public meeting?
At open meetings, the vote of each member on any resolution, rule, order, regulation, ordinance or the setting of any official policy must be publicly made, and, in the case of roll call votes, recorded.


Should minutes be taken at public meetings?
Minutes should be recorded at all open meetings and must contain:
  • the date, time and place of the meeting
  • the names of members present
  • the substance of all official action
  • a record by individual member of the roll call votes taken and
  • the names of all citizens who appeared officially and the subject of their testimony.
Can attendees record public meetings?
Any person attending a meeting of an agency has the right to use recording devices to record all of the proceedings. However, the agency may adopt and enforce reasonable rules in these situations.


Must all business be conducted in a public meeting?
No. Some exceptions to the public meeting requirement are delineated in the Sunshine Act. There are three basic exceptions for the need of an open meeting. These exceptions include executive sessions, conferences and certain working sessions.


What is an executive session?
An executive session is a meeting from which the public is excluded, although the agency may admit those person necessary to carry out the purpose of the meeting. An agency may hold an executive session for one or more of the following reasons:
  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. However, the individual employees or appointees whose rights may be adversely affected may request, in writing, that the matter be discussed in an open meeting. This paragraph does not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office.
  2. 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.
  3. 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.
  4. 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 to be filed.
  5. 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 or investigation of possible or certain violations of the law and quasi-judicial deliberations.
  6. For duly constituted committees of a board or council of trustees of the 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.


When can an executive session be conducted?
The executive session may be held during an open meeting, at the conclusion of an open meeting, or may be announced for a future time. The reason for holding the executive session must be announced at the open meeting occurring immediately prior to or subsequent to the executive session. If the executive session is not announced for a future specific time, members of the agency shall be notified twenty-four hours in advance of the time of the convening of the meeting specifying the date, time, location and purpose of the executive session. Official action, as a result of the discussions at an executive meeting, shall be taken at an open meeting. An executive session may not be used as a subterfuge to defeat the requirements of an open meeting.


What constitutes a conference as an exception to open meetings?
Conferences need not be conducted at open meetings. A conference is any training program or seminar, or any session arranged by State or Federal agencies, organized and conducted for the sole purpose of providing information to agency members directly related to their official responsibilities.


What constitutes a working session as an exception to open meetings?
Board of Auditors may conduct working sessions, not open to the public, for the purpose of examining, analyzing, discussing and deliberating various accounts and records for which such boards are responsible, so long as official action of a board with respect to such records and accounts is taken at a meeting open to the public and subject to the provisions of this Act.


Do public meetings have to be advertised?
Yes, an agency must give public notice of its first regular meeting of each calendar or fiscal year not less than three days in advance of the meeting, and shall give public notice of the schedule of its remaining regular meetings. An agency shall give special notice of each special meeting or each rescheduled regular or special meeting at least twenty-four hours in advance of the time of the convening of the meetings specified in the notice.

Public notices must be timely submitted for publication or circulation to permit the notice to be publicly distributed in a proper time-frame before the meeting. In addition, the agency holding a meeting shall supply, upon request, copies of the public notices to any newspaper of general circulation in the political subdivision in which the meetings will be held, to any radio or television station which regularly broadcasts into the political subdivision, and to any interested parties if any of these people or entities provide a self-addressed, stamped envelope prior to the meeting.


What should be contained in a public notice, where should it be placed and who should receive it?
A public notice must:
  • contain the place, date and time of a meeting in a newspaper of general circulation which is published and circulated in the political subdivision where the meetings 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 any newspaper published in the political subdivision;
  • be posted, containing the information above, prominently at the principal office of the agency holding the meeting or at the public building in which the meeting is to be held; and
  • be given to all parties who requested notice by previously providing a self-addressed, stamped envelope to the agency.


What happens when there is an emergency? Can a public hearing be held and done so without advertising?
Emergency meetings, which do not fall under the exceptions for an executive session, may be held without advertising if it is for the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property. In that a minimum of twenty-four hours notice is required for an executive session, a true emergency meeting should be convened in less than twenty-four hours or be advertised.


What happens if business is conducted in violation of the Sunshine Act?
Any legal challenge to a meeting must be filed within thirty days from the date of a meeting which is open, or within thirty days from the discovery of any action that occurred at a meeting which was not open at which the Act was violated. In the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of the meeting in question. If a court determines that a meeting did not meet the requirements of the Sunshine Act, it may, in its discretion, find that any or all official actions taken at the meeting were invalid. The court may impose attorney fees for legal challenges commenced in bad faith.


Are there penalties for failure to abide by the Sunshine Act?
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 to exceed $100.00, plus the cost of prosecution.


Can Trustees communicate with one another by e-mail to discuss university business without violating the Sunshine Law?
Trustees may communicate with one another via e-mail without violating the Sunshine Act, so long as a quorum of Trustees are not involved. If a quorum of Trustees are included in the e-mail discussion, then it becomes subject to the Sunshine Law and may constitute an inappropriate discussion of agency business in secret, which the law prohibits. The law does allow for the mere providing of information in private without any actual discussion or other official action, but Trustees are cautioned against reliance on this provision to justify use of e-mail to communicate with one another about agency business.