# Interview transcript — Melissa Melewsky

**Source:** Melissa Melewsky, in-house media-law counsel, Pennsylvania NewsMedia Association
**Interviewer:** Brian Nuckols (Public Source)
**Date:** November 17, 2025
**Recording:** `Pittsburgh Water Melissa.m4a` — https://drive.google.com/file/d/1MDgsNqzlkSHPeWvTEaXhHXv231eSeIxA/view

On the record. Lightly cleaned from the recording; wording verbatim. (A transcription artifact at
the very top of the source file, spliced from another recording, has been removed.)

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**Brian Nuckols:** Can you tell me your background in Sunshine Act work?

**Melissa Melewsky:** I'm in-house counsel with Pennsylvania NewsMedia Association, the trade association that represents print and digital news organizations in the Commonwealth. I've been in that role for almost 20 years. One of the biggest hats I wear is staffing their legal hotline. I answer around 2,000 calls a year. A solid half of those are public-access related — Sunshine Act, Right to Know Law, freedom of information, First Amendment, court access. I'm a media law attorney and have been for almost two decades.

**Brian:** In my interview with the board vice chair, she said the reason there isn't much deliberation is that before meetings there's at least an hour-long executive session discussing the same topics that will be on the day's public agenda, allowing board members to ask questions about resolutions before the public meeting. What's your reaction?

**Melissa:** No, it's not the way the Sunshine Act is supposed to work, and there's no executive session that allows public officials to essentially have the public meeting before they have the public meeting. Penn State University's Board of Trustees was sued this year for similar practices. Anytime we see an agency where the public meeting is largely pro forma — nothing happening, nobody's involved, no deliberation, everybody already agrees — that is a red flag that deliberation is happening outside the public meeting where it's not supposed to happen.

The general rule is, anytime a quorum of an agency deliberates agency business or takes official action, it must happen at a public meeting. There are a few narrow exceptions, because the intent of the law is to allow the public to witness and participate in the formation of public policy. The deliberation is what gives the public its ability to understand and provide meaningful input before decisions are made. This is not the first situation I've heard of. I hear it many times at every level of public agency. Sometimes lawsuits result, though that's rare because the Sunshine Act is extremely difficult to enforce.

**Brian:** Can you follow up on the teeth of the Sunshine Act?

**Melissa:** The case law interpreting the act has said the goal of enforcement is not punishment, it's compliance. But sometimes punishment is necessary if an agency is doing things wrong again and again. The cure remedy is purely court-created. There's nothing in the Sunshine Act itself that says agencies can violate the law and get out of jail free. What the courts have said is that if an agency believes it's done something wrong and comes out at a subsequent public meeting and does it right, that cures the violation, which makes it difficult, if not impossible, to get a finding in a court of law. Agencies and their solicitors understand it is very difficult to enforce the law, and sometimes that can encourage them to play fast and loose. A law is only as good as its enforcement mechanism. It doesn't matter if the penalty is $100 or $1 million if it's never imposed.

**Brian:** The chair says the closed meetings are for education and information gathering, not deliberation.

**Melissa:** I hear agencies make this fact-finding, information-gathering argument all the time, but what that devolves into is deliberation. The case law allows a one-way street of information coming from some source to the public officials and stopping there. Once that information is discussed amongst the board, that crosses the line into deliberation. There's a case from the Supreme Court, around 2012, *Smith v. Richmond Township*, where the court said this wasn't deliberation, it was information gathering. I think the court got it wrong there. But the court was careful to say each case is unique. There is no fact-finding or information-gathering exemption in the Right to Know Law or the Sunshine Act. It doesn't exist.

**Brian:** They also say there's more discussion on the recording than in the minutes. How important are the minutes?

**Melissa:** The Sunshine Act requires the minutes to contain certain basic information, but it does not require a verbatim transcript. The Sunshine Act sets the floor for minutes, not the ceiling. But we have decisions from the Office of Open Records that say if an agency makes a recording of a public meeting, it is immediately public — the next day — as long as it is in existence. The law doesn't require them to make it, but if they do, it's accessible to the public. Many agencies put those recordings on their website as a way to facilitate public access, and that's a best practice.

**Brian:** What are the biggest red flags, and the green flags?

**Melissa:** The big red flags are agencies that have no deliberation at a public meeting, treating it as a formality rather than a requirement of the law. Agencies that impose restrictive conduct policies on public comment — time limits, subject limits. Three minutes might be fine for a single issue, but wholly inadequate for a $70 million budget. Anytime an agency takes an action that inhibits or discourages public participation is a red flag, and unfortunately I see that more often than the other side. You have to understand what I do for a living — people don't call me when things go right. But good examples exist: agencies providing their agendas and board packets well in advance, putting their recordings and frequently requested records on their website, and just being responsive. If somebody says, "I missed last night's meeting, can you email me the recording?" — send the email. The cornerstone of these transparency laws is that government functions best when it is aided by an informed and involved citizenry.

**Brian:** One of their arguments is that other boards do it worse.

**Melissa:** From what I heard, they don't sound compliant with the Sunshine Act. So what makes them think they're crushing it? The Sunshine Act sets the minimum bar for compliance. If they're not meeting it, the extra things they're doing don't negate the lack of compliance. It doesn't say if you put your minutes online you don't have to have public deliberation. You can compare them with what other agencies are doing, and that can be a powerful tool, but ultimately the law sets the bar, not what other agencies do. Wrong is wrong. There's compliance and there's non-compliance.

**Brian:** If there's an education and deliberation process, that needs to be public?

**Melissa:** If they are just receiving information, not saying anything about it — a one-way street from some expert to the board, they're just listening — then by definition the Sunshine Act does not apply, because it applies when there's a quorum deliberating on agency business. That one-way street doesn't have to happen outside a public meeting; it can, it just doesn't have to. But when they cross that line and start to discuss that information amongst the quorum, that's what triggers public access.

**Brian:** Anything you want to put on the record that I haven't asked?

**Melissa:** It sounds like they're doing some things right and some things wrong, and I don't want to discourage the things they're doing right. But in the same breath, they still have to comply with the law. It's not a formality. It sounds like that agency would benefit from Sunshine Act training. The Pennsylvania Office of Open Records is statutorily required to provide Sunshine Act training to all Pennsylvanians free of charge, geared specifically toward public agencies. I would encourage this agency and any others with Sunshine Act questions to take that training and have their solicitor attend as well.