SECTION FOUR
Legal Concerns
Important Disclaimer Regarding Legal Issues
The information provided in this section is meant to encourage discussion and deliberation. Conservation districts should use this information as a guide only. Tailor it to your needs, coordinate with county policies (where possible) and seek advice from appropriate professional and legal counsel before taking action.
Personal Liability Protection
Conservation District Law (Act 217)
Government employees and public officials may be subject to lawsuits, whether or not those claims ultimately have merit. Section 9 of the Conservation District Law (Act 217) authorizes conservation districts “to sue and be sued in the name of the district.” While the outcome of any legal action depends on the specific facts and applicable law, district directors and staff should understand their rights and responsibilities when named in a lawsuit arising from district activities.
Delegated Programs
Under the Conservation District Law, the Commonwealth is required to defend and indemnify conservation district directors, associate directors, and employees for actions taken in the course of duties performed under formally delegated programs, to the same extent such protection is provided to Commonwealth employees.
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Defend means that the Commonwealth will provide legal representation if the individual is sued.
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Indemnify means that the Commonwealth will pay court-ordered damages or settlement costs, if applicable.
As a general rule, liability protection applies when an individual is acting reasonably and within the scope of their duties as defined by the applicable delegation agreement. This protection does not extend to actions that are willful, malicious, fraudulent, or criminal. A willful act is one in which the individual knew, or reasonably should have known, that the action was unlawful.
To ensure eligibility for this protection, district responsibilities related to delegated programs should be clearly documented in:
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The district’s annual plan of work;
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Employee job descriptions and performance standards; and
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Applicable policies, procedures, and guidance issued by the Department of Environmental Protection (DEP) and the State Conservation Commission.
Directors and staff performing duties under delegated authority are expected to comply with all relevant statutes, regulations, and agency guidance.
Illustrative Examples
Example 1: A district director votes to approve a nutrient management plan for a farm. Subsequently, a neighbor files a lawsuit alleging health impacts from odors, and a separate incident involves a manure spill that results in water pollution. Lawsuits are filed against both the district and the director.
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Because the director acted within the scope of their delegated responsibilities and followed established procedures, the Commonwealth would provide legal defense and, if necessary, indemnification.
Example 2: A district manager fails to respond to a Right-to-Know Law request, including a formal appeal, despite clear policies and guidance issued by the State Conservation Commission. A court imposes a fine for noncompliance.
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In this case, the manager’s actions would likely be considered willful and outside the scope of authorized duties. As a result, the Commonwealth would likely not provide defense or indemnification.
Districts are strongly encouraged to follow all delegation agreements and the accompanying guidance issued by DEP and the State Conservation Commission to ensure the availability of liability protection.
Non-Delegated Programs
For programs or activities that are not formally delegated by the Commonwealth, conservation district directors and staff are generally protected under the Political Subdivision Tort Claims Act. This statute provides liability protection similar to that described above, provided the individual was acting reasonably and within the scope of their official duties. In these cases, liability protection is provided by the conservation district rather than the Commonwealth.
Under this law, directors and employees may request legal defense and indemnification from the district. Directors and district managers may assert a statutory defense based on discretionary, policy-making authority.
Each district should establish procedures for responding to lawsuits arising from non-delegated programs. Typically, this includes retaining a district solicitor to provide legal defense and to advise on appropriate levels of insurance coverage.
Procedures if You Are Sued
If a director or staff member is named in a lawsuit related to conservation district activities, the following steps should be taken immediately:
1. Notify the district solicitor without delay.
2. Delegated programs: Notify the State Conservation Commission and, depending on the program, the legal office of DEP or the Department of Agriculture. This initiates the process for determining eligibility for defense and indemnification by the Commonwealth.
3. Non-delegated programs: Work closely with the district solicitor to coordinate the legal defense. Review applicable insurance policies promptly, as they may include specific notification requirements.
Understanding and adhering to statutory authority, delegation agreements, and established policies is the most effective means of ensuring personal liability protection for conservation district directors and staff.
Liability Minimization
Liability minimization should not be viewed as a burden for conservation districts or district directors. Effective risk management is achieved primarily through a clear understanding of roles, responsibilities, and legal obligations.
Directors are expected to be familiar with their duties as defined by the Conservation District Law (Act 217), the district’s annual plan of work, any adopted director position descriptions, and the policies and guidance contained in this handbook.
A thorough understanding of these responsibilities, coupled with consistent and transparent decision-making, provides the strongest protection against personal and organizational liability.
Other ways to minimize your liability include:
Act in Good Faith
District directors are not required by law to make perfect decisions. They are required to act in good faith. Acting in good faith means exercising honest judgment, demonstrating a sincere intent to fulfill official responsibilities, and avoiding any intent to obtain or confer unfair advantage.
Consistency is the primary measure of good faith. Directors who understand the law, apply their duties consistently, and treat all individuals and entities equitably are meeting this standard.
Promote Consistency Through Adopted Policies
The board can strengthen consistency and reduce risk by adopting clear, written policies to guide decision-making. Effective policy statements typically define the purpose of the assistance or service being provided, eligibility criteria or qualifications; and priorities used to determine the order or level of assistance.
Policies are adopted to serve the public interest as a whole. Exceptions made to benefit specific individuals or entities may undermine consistency and increase exposure to legal or ethical challenges.
Maintain Complete and Accurate Records
Conservation districts are required to maintain complete and accurate records of their activities. Board meeting minutes must be recorded, approved by the board, and retained permanently as part of the district’s official records. Other district records should be maintained in accordance with applicable retention requirements.
With limited statutory exceptions, conservation district records are subject to public inspection. Accurate documentation of board actions, policies, and the use of public funds is essential in demonstrating compliance with legal and fiduciary responsibilities.
Comprehensive recordkeeping protects directors, staff, and the district as a whole and is critical in the event of audits, public inquiries, or legal proceedings.
Liability minimization is best achieved through informed leadership, consistent policy application, and diligent recordkeeping. When directors understand their responsibilities and act transparently and in good faith, they significantly reduce both personal and organizational risk.
Insurance
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Conservation districts should maintain appropriate insurance coverage to protect the district, its directors, employees, property, and operations. District boards should first consult with their county government to determine whether insurance coverage is available through county policies and, if so, the scope of that coverage.
If the district is not included under county insurance programs, or if existing coverage is insufficient, the board must evaluate and secure appropriate independent coverage.
At a minimum, district boards should consider the following types of insurance:
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Surety Bonds: Surety bonds are required for any individual who is entrusted with district funds or property, maintains financial records, or prepares financial statements, audits, or annual reports. Bond coverage should be sufficient to cover the maximum amount of district funds held at any one time during the fiscal year.
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Property Insurance: Districts should insure all district-owned property, including but not limited to office equipment, vehicles, and buildings, against loss or damage.
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Errors and Omissions Insurance: Errors and omissions (E&O) insurance provides protection against claims arising from alleged mistakes, omissions, or negligent acts committed in the course of professional duties.
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General and Event-Specific Liability Insurance: Districts should consider liability insurance for programs, events, and activities—such as tours, field days, or demonstrations—that may not be covered under formal delegation agreements or existing policies.
Insurance needs vary among conservation districts based on program scope, staffing levels, property ownership, and operational risk. Each district board is responsible for periodically reviewing its insurance coverage to ensure that it is adequate and appropriate for the district’s activities and level of exposure.
Personnel Issues
Conservation district directors assume legal responsibilities as employers and must maintain a working knowledge of applicable employment laws. Directors should be familiar with laws governing equal employment opportunity, non-discrimination, wage and hour compliance, and employee rights.
Sound personnel practices—including fair hiring, effective supervision, appropriate discipline, and equitable grievance procedures—are essential to minimizing legal risk and maintaining a productive workplace.
Key federal and state employment laws affecting conservation districts include, but are not limited to:
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Americans with Disabilities Act of 1990
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Civil Rights Act of 1964
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Immigration Reform and Control Act of 1986
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Pregnancy Discrimination Act
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Family and Medical Leave Act
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Fair Labor Standards Act
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Equal Pay Act
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Pennsylvania Minimum Wage Act
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Pennsylvania Wage Payment and Collection Law
Employment Law Overview
The Building for Tomorrow Leadership Development Program periodically offers seminars on Employment Law Basics for Conservation Districts. The information summarized in this section is drawn from the 2025 Employment Law Seminar Reference prepared by employment attorney Adam Long of McNees Wallace & Nurick LLC.
Directors should consult qualified employment counsel before taking personnel actions or adopting personnel policies involving legal risk. Districts should also monitor legal developments and consult counsel as needed.
Best Practices for Hiring
Effective hiring procedures reduce the risk of discrimination claims and future workplace disputes. Districts should periodically review recruitment and selection practices to ensure compliance with applicable laws.
Key considerations include:
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Advertisements: Use inclusive, non-discriminatory language and include equal employment opportunity statements.
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Job Applications: Limit inquiries to lawful, job-related information; avoid questions regarding protected characteristics; include at-will employment disclaimers where applicable.
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Interview Process: Ask consistent, job-related questions; avoid improper inquiries; document interviews.
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ADA Pre-Employment Inquiries: Do not conduct medical examinations or ask disability-related questions prior to a conditional offer of employment.
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References and Background Checks: Obtain job-related information while complying with applicable state and federal laws.
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Offer Letters: Clearly define job terms, conditions of employment, and at-will status.
Best Practices for Managing Employees
Districts should apply personnel policies consistently and document employment decisions carefully.
Recommended practices include:
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Clearly communicating job expectations and performance standards.
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Conducting regular performance evaluations.
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Applying policies uniformly unless justified by documented circumstances.
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Maintaining accurate documentation of performance issues, discipline, and complaints.
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Ensuring disciplinary actions and terminations are supported by legitimate, non-discriminatory reasons.
Termination Practices
Termination decisions should be deliberate, objective, and well-documented. Prior to termination, districts should ensure that:
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All relevant facts have been gathered and recorded.
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The employee understands job expectations and deficiencies.
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Progressive discipline or prior warnings have been provided when appropriate.
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The decision is consistent with past practices.
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The termination is handled privately, professionally, and safely.
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Final pay and benefits information is prepared and communicated accurately.
Immediate suspension pending investigation may be appropriate in cases involving serious misconduct.
Wage and Hour Compliance
Federal and state wage and hour laws regulate minimum wage, overtime, recordkeeping, and employee classification. Improper classification of employees or contractors can result in significant liability.
Key considerations include:
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Correct classification of exempt and non-exempt employees.
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Accurate calculation of hours worked, including training, travel, and on-call time.
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Payment of overtime at one-and-one-half times the regular rate for non-exempt employees.
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Regular self-audits of payroll practices to ensure compliance.
Medical Issues, Attendance, and Leave
Districts must comply with laws governing employee medical conditions and leave rights.
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The Americans with Disabilities Act (ADA) and Pennsylvania Human Relations Act (PHRA) require reasonable accommodations for qualified individuals with disabilities.
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Employers must engage employees in identifying reasonable accommodations unless undue hardship exists.
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Mental Health is treated equivalently to physical disabilities under applicable laws.
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The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of job-protected leave for qualifying reasons.
Employment Policies
Districts should maintain written personnel policies that reflect current legal requirements and operational practices, including:
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Employee handbook with at-will disclaimer
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Equal employment opportunity and non-discrimination policies
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Discriminatory harassment prevention and reporting procedures
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Conduct and disciplinary guidelines
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Attendance and leave policies
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Electronic resources and social media policies
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Drug and alcohol policies
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Pay deduction safe-harbor provisions
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Remote work policies
Policies should be reviewed regularly and updated as laws and practices change.
Discriminatory Harassment Training
Districts should implement preventive measures to address workplace harassment, including:
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Clear written policies
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Regular employee and management training
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Prompt and thorough investigation procedures
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Visible leadership commitment to a respectful workplace culture
Grievance Policy
Conservation districts should maintain a grievance policy that ensures employees are treated fairly and equitably. Employees must have the right to raise concerns without fear of retaliation and to receive a timely response. Additionally, filing a grievance must not be considered adversely in evaluating employee performance or loyalty.
A grievance procedure should:
1. Encourage informal resolution when possible.
2. Provide a formal written process when informal resolution is unsuccessful.
3. Ensure timely review and response by designated staff or board members.
4. Require final determination by the district board within a reasonable timeframe.
5. Coordinate with county or union grievance procedures when applicable.
Employment Law for Conservation Districts 2025 Reference
Ethics and Conflicts of Interest
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Pennsylvania’s Public Official and Employee Ethics Act (Act 134 of 2006) is intended to assure the citizens of the Commonwealth that the financial interests of public officials and employees do not conflict with the public trust.
The Act promotes transparency through financial disclosure, establishes minimum standards of conduct related to conflicts of interest and financial impropriety, and created the State Ethics Commission to administer and enforce its provisions.
Conservation district directors are classified as public officials and are therefore subject to all applicable provisions of the Public Official and Employee Ethics Act. Public office is deemed a public trust, and any attempt to realize personal financial gain through the use of public office constitutes a violation of that trust. Conservation district directors are required by law to file an annual Statement of Financial Interests. Filing is mandatory and not optional.
Definitions
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Public Official: Any individual appointed by a governmental body, including conservation district directors appointed by a county governing body.
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Public Employee: Any individual employed by the Commonwealth or a political subdivision, including conservation districts, who is responsible for taking or recommending official action of a non-ministerial nature related to:
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Contracting or procurement;
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Administration or monitoring of grants or subsidies;
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Planning or zoning;
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Inspection, licensing, regulation, or auditing; or
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Any other activity that has an economic impact greater than a de minimis amount on the interests of any person.
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Restricted Activities
Conservation district directors and employees are prohibited from engaging in conduct that constitutes a conflict of interest. A conflict of interest generally involves the use of the authority of one’s office, employment, or confidential information obtained through official duties for the substantial private pecuniary benefit of the official or employee, a member of the individual’s immediate family or spouse, or a business with which the individual, spouse, or immediate family member is associated.
Restricted activities include, but are not limited to, the following:
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Seeking Improper Influence:
An official, employee, immediate family member, spouse, or associated business may not accept anything of monetary value with the understanding that an official action or judgment will be influenced.
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Accepting Improper Influence:
An official or employee may not solicit or accept anything of monetary value based on an understanding that such value would influence the discharge of official duties.
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Contracts:
An official, employee, spouse, child, or associated business may not enter into a contract valued at $500 or more with the governmental body with which the individual is associated, or a subcontract of the same value, unless the contract is awarded through a publicly disclosed and competitive process, in compliance with applicable law.
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Former Officials and Employees:
No former public official or employee may represent a person, with promised or actual compensation, before the governmental body with which the individual was associated for one year following separation from service.
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Voting Conflicts:
A public official who is required to vote on a matter that would result in a conflict of interest must abstain from voting and publicly disclose, in writing, the nature of the conflict to the individual responsible for preparing the meeting minutes. If the abstention prevents the body from taking action (i.e. - results in a tie vote), the conflicted member may vote provided that full disclosure is made in accordance with law.
State Ethics Commission
The Public Official and Employee Ethics Act established the State Ethics Commission to administer and enforce the Act. The Commission has authority to conduct investigations, hold hearings and take testimony, issue subpoenas and compel witness attendance, issue findings and orders.
If a violation of the Act resulting in financial gain is found, the Commission may order restitution with interest and may refer the matter to law enforcement authorities for criminal prosecution. Investigations must be initiated within five years of the alleged violation.
Penalties and Remedies
Violations of the Ethics Act carry significant penalties:
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Any individual who engages in a conflict of interest or seeks or offers improper influence commits a felony and, upon conviction, may be subject to a fine of up to $10,000 and/or imprisonment for up to five years.
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Violations involving other restricted activities or failure to comply with financial disclosure requirements constitute a misdemeanor, punishable by a fine of up to $1,000 and/or imprisonment for up to one year.
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Any individual who realizes financial gain as a result of a violation must pay an amount equal to three times the value of the gain to the Commonwealth or the applicable political subdivision, as provided in 65 Pa. C.S. §1109(c).
The Act also provides remedies for individuals harmed by the wrongful or frivolous filing of ethics complaints, including recovery of costs, attorney fees, defamation damages, actual pecuniary losses, and damages for emotional distress.
Pennsylvania Sunshine Law
The Pennsylvania Sunshine Law requires that official actions and deliberations of a quorum of members of a governmental agency, including conservation district boards of directors, be conducted at meetings open to the public. The law establishes procedural requirements intended to promote transparency, inform the public, and maintain confidence in governmental decision-making.
A meeting is defined as “any prearranged gathering of an agency which is attended and participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action."
The Sunshine Law applies to meetings when one or more of the following conditions are met:
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Quorum: whenever a majority of the voting members of the board are present.
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Official Action: includes establishing policy, making decisions on district business, voting, or making recommendations authorized by statute. It also includes deliberation - discussion of district business held for the purpose of taking official action.
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Agency: includes the conservation district board and any committee created by the district that is authorized to take official action or provide advice on agency business.
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Agency Business: means (a) preparing or enacting policy or rules, (b) the creation of liability by contract or otherwise, or (c) the adjudication or rights, duties and responsibilities. This does not include mere administrative action.
Administrative action consists of executing or implementing policies, contracts, or decisions previously approved by the board and does not, by itself, trigger Sunshine Law requirements.
Requirements of the Sunshine Law
1. Public Notice of Meetings
At the beginning of each calendar year, the district must provide public notice of the schedule of its regular meetings. Notice must be published in the legal notice section of a newspaper of general circulation of the political subdivision where the meeting will take place, or in a newspaper of larger paid circulation than every newspaper published in the political subdivision where the district’s principal office is located or where the meeting will be held. Special, rescheduled, or unscheduled meetings require a minimum of 24 hours’ public notice.
2. Public Notice of Agendas
Meeting agendas must be posted on the district’s website at least 24 hours in advance of the meeting. The agenda must be posted at the location of the meeting and the principal office of the agency. Copies of the agenda must be made available to individuals in attendance at the meeting. A district may not take official action on a matter of official business if the item was not included on the publicized agenda
3. Conduct of Meetings and Public Participation
The district may adopt its own rules for meeting conduct; however, meetings must provide a reasonable opportunity for public comment. The board may limit public comment to specific agenda items or to a designated portion of the meeting, provided the opportunity is reasonable. Recording devices must be permitted. All official votes must be conducted in public and recorded.
4. Meeting Minutes
The district is required to keep written minutes of all meetings. Minutes must be available for examination and inspection by citizens of the United States in accordance with the law.
5. Executive Sessions
The board may convene executive sessions without complying with public notice and participation requirements only under limited circumstances permitted by law. Executive sessions may be held solely for purposes authorized by statute and may not be used to take official action.
Open Meetings: The Sunshine Act
Sunshine Law Frequently Asked Questions for Conservation Districts
Question: For what purposes may a conservation district board enter executive session? A board may convene an executive session only for the following purposes: •Discussion of personnel matters, including hiring, promotion, evaluation, discipline, or dismissal of employees; •Consideration of information, strategy, or negotiations related to collective bargaining agreements or arbitration; •Discussion regarding the purchase or lease of real estate; •Consultation with legal counsel concerning litigation or potential litigation; and •Discussion of district business that would result in the disclosure of confidential information, including investigations of possible violations of law or quasi-judicial deliberations.
Question: Does the Sunshine Law apply to conservation districts? Yes. Section 5(2) of the Conservation District Law defines conservation districts as “a public body corporate and politic exercising public powers of the Commonwealth as an agency thereof.” As such, conservation districts are subject to the requirements of the Pennsylvania Sunshine Law when conducting official business.
Question: What information must be included in official meeting minutes to comply with the Sunshine Law? Official minutes must include: •The date, time, and location of the meeting; •The names of board members present; •The substance of all official actions taken, including motions and a record of all votes, including roll-call votes when applicable; and •The names of citizens who appeared officially and the subject matter of their testimony.
Question: Must the public be permitted to speak at conservation district board meetings? Yes. The Sunshine Law requires that citizens be provided a reasonable opportunity to be heard. Boards may adopt rules governing public comment, provided those rules are reasonable and applied consistently.
Question: What are the consequences of failing to comply with the Sunshine Law? Actions taken in violation of the Sunshine Law may be declared invalid, requiring the board to reconvene and take corrective action at a properly conducted public meeting. In cases where a violation is found to be willful or undertaken with wanton disregard of the law, a court may award attorneys’ fees and costs to the prevailing party.
Question: Must executive sessions be advertised in a newspaper of general circulation? No. Executive sessions are not subject to public notice requirements; however, the fact that an executive session is being held and the general purpose for it must be announced at a public meeting.
Question: Are conservation districts required to retain audio recordings of meetings? No. The Sunshine Law does not require the retention of audio recordings, although district policy may establish retention requirements.
Question: May the board prohibit recording devices at public meetings? No. Boards may not prohibit recording devices but may adopt reasonable rules governing their use.
Question: May an executive session be held at a time other than during an official public meeting? Yes. An executive session may be held at another time, provided the session and its purpose are announced at a public meeting either before or after the executive session occurs.
Question: Are minutes required for executive sessions? No. Minutes are not required for executive sessions.
Question: May a conservation district board vote by secret ballot? No. The Sunshine Law requires that all votes be cast publicly.
Question: What are the requirements for rescheduling a cancelled meeting? A rescheduled meeting must be advertised in the same manner as a regular meeting. Notice of the rescheduled meeting must be posted at the meeting location and published in a newspaper of general circulation at least 24 hours in advance. Notice of cancellation of the original meeting should also be posted at the meeting location.
Question: May the district chair vote on board actions? Yes. The chair is a voting member of the board and may vote on all matters. While the chair’s vote is often unnecessary, it may be used to break a tie or, in some cases, to create a tie, effectively postponing action to allow additional deliberation.
Pennsylvania's Right to Know Law
Pennsylvania’s Right-to-Know Law (Act 3 of 2008) establishes the public’s right to access records of Commonwealth and local agencies, including conservation districts. The law defines what constitutes a public record, identifies permissible exemptions, and prescribes the procedures agencies must follow when responding to requests for records.
The Right-to-Know Law requires agencies to respond to written requests for public records within specific statutory timeframes. Agencies must either grant access to the requested records, deny the request in whole or in part with a legal justification, or invoke an allowable extension. The law is intended to promote transparency and accountability in government operations.
The Act also provides a formal appeals process for requesters who believe access to records has been improperly denied. Appeals are reviewed by the Office of Open Records or, in certain cases, by a court of competent jurisdiction. Conservation district boards and staff must be familiar with the requirements of the Right-to-Know Law and ensure that requests are handled in a timely, consistent, and legally compliant manner.
Right to Know Law Resources:
PA Office of Open Records: About the Right to Know Law
Right To Know Law Process Chart
Right to Know sample record request form
Right to Know sample record request fee schedule
Right to Know Law Frequently Asked Questions for Conservation Districts
Question: What does the Right to Know Law say? The Right to Know Law requires government agencies, including conservation districts, to make public records available to the public in accordance with established procedures. Amendments enacted in 2008 created a presumption that all records held by a government agency are public records unless an exception applies. To assist districts in meeting these requirements, the State Conservation Commission adopted an approved model Right to Know policy dated November 18, 2008.
Question: Why do conservation districts have to adopt a formal procedure? Amendments to the law in 2008 established strict timelines and procedural requirements for responding to Right to Know requests. Failure to comply with these requirements may result in penalties imposed by a court.
Question: What if we cannot find the document requested? The law requires districts to make available only those records that are in their possession. Districts are not required to create new records, such as compiling information from multiple documents. However, districts must make a good-faith effort to locate requested records or to obtain copies of lost documents if such records are likely to be maintained by the district.
Question: Can a district charge fees for the expenses involved in obtaining records? A district may charge certain fees to fulfill Right to Know requests, although the law limits which fees may be assessed. Districts may not charge fees for determining whether a record is a public record. The official fee schedule is maintained by the Office of Open Records.
Question: Does the district’s procedure always have to be followed? No. The law allows districts to fulfill verbal requests and written requests that do not reference the Right to Know Law in any manner they choose. However, for a requester to obtain legal remedies under the Right to Know Law, the request must be submitted in writing and must state that it is being made pursuant to the Right to Know Law. When such a written request is received, the district’s adopted procedures must be followed closely.
Question: Does each district have to adopt the State Conservation Commission’s model policy exactly as written? No. While districts are not required to adopt the model policy verbatim, it should be followed as closely as possible. Districts may modify elements such as fee schedules, update existing policies to incorporate the model provisions, or adopt a county Right to Know policy, provided it is consistent with the Commission’s model policy. There is no requirement to maintain separate policies for county and district purposes.
Question: What legal support is available to districts on Right-to-Know-related issues? The Department of Environmental Protection and the Pennsylvania Department of Agriculture provide legal support to the State Conservation Commission and to conservation districts for delegated programs. This support includes assistance with responding to requests, managing appeals, and addressing other legal actions.
Question: Can a district use the district solicitor for legal assistance? A district should use their district solicitor for RTK requests for contracted programs or other district business not associated with a delegated program.
Question: What documents are considered public records? A public record is any document that records a transaction or activity of the district and is created, received, or retained pursuant to law or in connection with district business. Public records may exist in paper or electronic form and include emails, photographs, and audio recordings. The law includes approximately thirty exceptions, which are identified in Section 708 of the statute and in the Commission’s model Right to Know policy. These exceptions include records reflecting pre-decisional deliberations, communications with legal counsel, certain investigative records, and portions of records containing personal information such as social security numbers or home telephone numbers. Districts may, at their discretion, release non-public records to promote transparency, a practice routinely used by DEP.
Question: Can a conservation district refuse access to a document based on the requester’s motive? No. The Right to Know Law expressly prohibits requiring a requester to explain or justify the reason for a request. Districts may not deny access based on the intended use of the information, such as marketing or sales purposes. If concerns arise related to biosecurity, terrorism, or similar issues, districts should consult with DEP legal, the SCC, or the district’s solicitor depending on the nature of the request.
Question: How should conservation districts handle requests for conservation plans? Requests for conservation plans involve complex legal considerations and should be coordinated with the appropriate DEP regional legal office. Whether a conservation plan is a public record depends on how the plan is used and whether it is part of a regulatory or funding decision. In programs such as DEP’s Biosolids and Concentrated Animal Feeding Operation programs, a conservation plan may be relied upon to meet regulatory requirements and may be included in a permit or approval file. In such cases, if the district maintains a copy and a decision has been made based on the plan, it is a public record. In the Act 38 Nutrient Management Program, conservation plans are not required to be submitted. However, if a district retains a copy of a conservation plan as part of its review of a nutrient management plan, that copy becomes a public record once the plan is approved. Conservation plans that remain solely in NRCS files are not public records of the district. Conservation plans required for grant programs, including Growing Greener, Chesapeake Bay, or agricultural easement programs, are generally public records. Conservation plans written by districts under federally funded programs are not public records unless they are used as part of a regulatory or grant decision. NRCS considers conservation plans in its files to be confidential. Districts should not copy these plans into their own files unless they are provided by the farmer or an authorized representative, or unless a signed release and waiver is obtained. Districts that reference NRCS plans for farmland preservation purposes are not required to release those plans unless the district maintains a copy and the plan was required for easement approval. District boards that formally approve conservation plans at public meetings may create Right to Know issues; districts may wish to revise procedures so boards acknowledge or accept NRCS approvals rather than formally approving the plans.
Question: What about nutrient management plans? In 2001, the Pennsylvania Environmental Hearing Board ruled that conservation districts must provide access to nutrient management plans once they are administratively complete. The Commission has an established policy governing access to draft plans prior to approval. When access is provided to a plan that has not yet been approved, the requester should be informed of its approval status. Updates to nutrient management plans are subject to the same Right to Know requirements as initial submissions.
Question: Does this law change how districts organize their records? Not necessarily. The law does suggest that districts may benefit from separating files containing public records from those containing non-public records, such as attorney communications and investigative files. DEP maintains separate official public files for this purpose. Districts may also wish to clearly distinguish district files from NRCS files. Districts co-located with NRCS offices should consult with their NRCS District Conservationist to establish clear separation of files for Right to Know purposes.
Question: Does this law change how districts retain their records? No. Districts may continue to follow document retention policies that allow for the destruction of records after a specified period, provided those policies comply with delegation agreements and contractual requirements. If a district does not have a retention policy, or does not follow its policy, any records that are public remain subject to disclosure for as long as they exist.
Question: When do conservation district meeting minutes become public records? Meeting minutes become public records after the next regularly scheduled board meeting.
Question: Are financial statements public records? Yes. Financial Statements are public records and subject to RTK.