COMMENTARY: It Doesn’t Always Take Two To Tango
FRANK GIBSON, TN Coalition for Open Government
Tuesday, September 21, 2010 6:27 am
Kudos to The Greeneville Sun for the way it reported in its Aug. 11 edition the anatomy of a sunshine law violation and the lengths to which one Alderman went in getting city budget committee meetings opened after failing to give notice of five previous meetings.
The alderman showed it doesn’t always take two to tango -- my words, not the Sun’s.
In the calls we get from reporters and citizens around the state, it is obvious that some public officials play a numbers game when calculating how many members of a “governing body” it takes to violate the law. If they would read the first four, short sections of the statute or get some basic training, they would learn that numbers are irrelevant except in certain circumstances.
Meanwhile, the folks in the Rutherford County government deserve a “laurel” for the way they have handled one recent sunshine issue, but they get “darts” for the way they handled two other sunshine issues. They should perhaps get a third “dart” for having three sunshine controversies raging simultaneously.
I used the Greeneville case as an exhibit when the Hendersonville League of Women Voters asked me to talk about government transparency in Tennessee and where we are headed. Since I don’t have a crystal ball, I passed on making any predictions and focused on problems that need to be fixed.
Education is the key to citizens enjoying the full benefit of open government under a once-model law. The strongest law is worthless, however, if officials don’t read it. Since training is not mandatory and there are no obvious penalties for violations, there is little incentive to follow the “spirit” or requirements of the law.
Greeneville and one of the Rutherford County cases illustrate how selective interpretation of the law leads to controversy and sometimes public embarrassment.
The Sun laid out the details from both sides in the Greeneville dispute and let the readers hear all the side after the chairman of the city’s Budget and Finance Committee asked an alderman to leave a committee meeting. The chairman said having two of the five members of the Board of Mayor and Alderman present would violate the law.
Ironically, the visiting Alderman was there to deliver research he had done to show the committee was already violating the law by not giving public notice of its meetings.
The Sun laid out the sequence of events after announcing: “The meetings of the Budget and Finance Committee will from now on be announced in advance and will be open to the public, including the news media, according to Alderman Darrell Bryan, chairman of the committee.
“Bryan, a former Greeneville mayor, emphasized late Tuesday afternoon in an interview that any violation of the Open Meetings Act had been unintentional, and had been based on an apparent misunderstanding on his part of what the state law required.
“He explained that he had thought that, as long as no more than one elected official of the town was present, a committee such as the Budget and Finance could legally meet in private.”
The committee consisted of one alderman and two private citizens. They were charged with developing a city budget. Their first meeting was announced and open, but no notice had been given for the five subsequent meetings. There was no mention of whether the committee -- with only one alderman on it -- had been structured to get around the notice provisions.
The visiting alderman went to the meeting armed with excerpts from the law he had obtained anonymously from TCOG and an opinion from the Municipal Technical Advisory Service at UT. He said MTAS advised the committee should cease meeting in private and should start announcing meetings.
As reported by The Sun, the committee recessed the Aug. 10 meeting long enough for the chairman to get an opinion from the city attorney. When the attorney agreed with MTAS, the mayor and other Board members were notified and the meeting resumed later in the day. The visiting alderman could not be found.
A quick read of the law, a brief conversation with the city attorney or a little training might have given the chairman a clue that his interpretation of the law was wrong. The law states:
T.C.A. 8-44-102 (a) “All meetings of any governing body are declared to be public meetings open to the public at all times…”
“‘(b)(1) Governing body’ means: (A) The members of any public body which consists of two (2) or more members, with the authority to make decisions for OR RECOMMENDATIONS TO A PUBLIC BODY on policy or administration…”
It says nothing about the number of members of the governing body. The number “two (2)” is used to define a “public body.” The meetings of the budget committee would fall under the law if all members had been citizens because it was created to make recommendations to the legislative body.
The obsession with numbers showed up in Rutherford County, too.
A citizens group filed an ethics complaint against the county mayor for allegedly misstating the requirements of the sunshine law. He allegedly told county commissions a committee studying creation of a law department did not fall under the law because the committee did not included a “quorum” of the whole commission.
The issue in Murfreesboro was the same as Greeneville because the committee was working on a recommendation to the county commission. The county Ethics Committee dismissed the complaint for lack of jurisdiction so the mayor’s alleged claim was not tested.
The second Rutherford County case is a little different. The county election commission fired the elections administrator under “other business” at the end of a meeting.
The Republican chairman asked for a motion to dismiss the administrator. Then without discussion, the panel voted 3-2 to fire him.
The chairman later told reporters he had discussed the issue with the two other GOP commissioners before the meeting, putting the commission squarely at odds with another provision of the sunshine law.
T.C.A. 8-44-102 c exempts “chance meetings of two or more members of a public body” but says “No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements” of the law.
Instead of following the rule of law, the commission used the golden rule of politics: “Them who have the votes make the rules.”
Apparently sensing they had opened themselves up to a sunshine lawsuit, where their earlier action could be declared void, the chairman announced another commission meeting. It then rescinded the earlier action 3-0 and turned around to suspend him.
Finally, the Rutherford County Regional Planning Commission deserves some credit for handling the controversy over construction of a proposed Muslim mosque the right way.
A group of citizens, led by a twice-unsuccessful candidate for public office, is opposing the mosque and has filed a lawsuit claiming the notice the planning commission gave before approving a site plan on May 24 was not adequate enough for them.
A search of records shows the commission published the notice in the Murfreesboro Post three weeks ahead of its regular meeting. The opponents contend the newspaper notice should have mentioned that the mosque project was on the agenda.
County officials explained that the land was already zoned for a church so no other notice was required.
Recent court cases say notices of special meetings must include an agenda of specific items, but it’s not as clear that notice of specific agenda items is required for regular meetings, except for items subject to public hearing.
A Rutherford County chancellor denied an injunction sought by mosque opponents. Based on press reports, officials there appear to have gotten it right.
By not announcing public meetings, officials invite public criticism which could be avoided with more thought
Frank Gibson is TPA’s Government Affairs Committee coordinator and executive director of the Tennessee Coalition for Open Government. He can be reached at 615-202-2685 or @ email@example.com. TCOG is a non-partisan, non-profit advocacy group created to improve and preserve access to public records and meetings. Send contributions to P.O. Box 22248, Nashville 37202.