Today is Tuesday, June 27, 2017

What Tennessee law says about open meetings

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Regarding Sunday’s private meeting of the Wilson County Board of Education’s meeting, the Tennessee School Board Association’s “New School Board Meeting Guide” states very plainly what they can and cannot do during this meeting.

On page 17 of the guide created in 2012, it states: “A Board may meet in private with its attorney to discuss pending litigation or matters that are likely to result in litigation. The board may not use this meeting to deliberate toward a decision, but only to seek advice from counsel.” (Emphasis added by The Post.)

In other words, board members may receive advise from BOE Attorney Mike Jennings tomorrow, but they cannot deliberate about what action they may or may not take. That deliberation or discussion must be done in an open meeting that the public may attend.

However, according to Tennessee law, just because a public meeting is held, it does not guarantee that the public has the right to participate in the meeting. That decision and specifics regarding public participation if allowed is made by the governing body.

Regarding whether or not the BOE initially gave adequate public notice about Saturday’s scheduled meeting under the law, they did not. The Post has learned the decision to hold the meeting was made mid-afternoon on Friday, and that no notice was given either verbally or in writing to any member of the media, which is the customary outlet for providing such notices.

However, after The Post discovered that the meeting was scheduled and contact BOE Chair Don Weathers and BOE Attorney Mike Jennings, adequate notice was sent to all media outlets via an email from BOE Secretary Rose Ratagick at 11:47 a.m. The Post immediately posted it on its website and on its Facebook page.


Open Meetings Act

When the General Assembly passed the Tennessee Opening Meetings Act, the body declared it to be “"the public policy of the state that the formation of public policy and decisions is public business and shall not be conducted in secret.” (T.C.A. § 8-44-101)

However, there are exceptions to the law. Consider the following:

  • In the 1994 lawsuit, Lakeway Publishers v. The Civil Service Board for the City of Morristown, the Tennessee Court of Appeals found, “If experience should prove that the public interest is adversely affected by open meetings pending or prospective litigation disciplinary hearings, promotion and demotion decisions, prospective land purchases, labor negotiations, etc., it is the Legislature, not the Judiciary, that must balance the benefits and detriments and make such changes as will serve the people and express their will.”
  • The 1980 Tennessee Attorney General Opinion number 80-16, states that in 1976, the Tennessee Supreme Court in Dorrier v. Dark made “clear that actual decisions on matters of litigation (made after receiving the advice of counsel) are subject to the requirement that meetings be open. Only advisory sessions with attorneys would be exempted through the operation of the privilege.”

The “New School Board Meeting Guide” states is more plainly: “A Board may meet in private with its attorney to discuss pending litigation or matters that are likely to result in litigation. The board may not use this meeting to deliberate toward a decision, but only to seek advice from counsel.”

An example from the Institute for Public Service, which was created in 1971 “to provide continuing research and technical assistance to state and local government and industry to meet more adequately the need for information and research in business and government," illustrates this exception.

A school board conducted a private meeting with an attorney to discuss legal options concerning a pending charge of unprofessional conduct against a teacher. There was no discussion among the school board as to what action should be taken. Is this a violation of the Open Meetings Act?

Yes or no?

The Tennessee Supreme Court recognized a narrow exception to the Open Meetings Act for meetings between a public body and its attorney concerning pending litigation (Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn. 1984)). The exception applies only to discussions between the members of the public body and the attorney; once any discussion begins among the members of the public body as to what action should be taken based on the advice of counsel, the discussion must be open to the public.

So in Baltrip v. Norris, if during the private meeting the school board members had started discussing among themselves the legal options explained by their attorney with the intent as to deciding what action to take, they would have been in violation of the Open Meetings Act. But since they only discussed the options with their attorney with the intent of understanding the options, they were not in violation.

The narrow exception applies only to meetings between a public body and its attorney that meet the following criteria:

  1. The meeting must concern litigation that has already been filed or which is likely to be filed and to which the county is or will be a party.
  2. The private meeting must be limited to discussions between the attorney and members of the public body regarding the public body's legal options, and no discussions between members of the public body as to what action should be taken can take place.


‘Adequate Public Notice’

In the TSBA’s “New School Board Meeting Guide,” boards “must give ‘adequate public notice’ of any meeting it holds.” T.C.A. § 8-44-102(a) states that “All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the constitution of Tennessee.”

And just for clarification, according to an April 1, 2011 presentation titled “Operating in the Sunshine: A Quick Guide to Open Meetings and Public Records in Tennessee” by Open Records Counsel, attorney Elisha D. Hodge, in the Office of Open Records Counsel in the Tennessee Comptroller of the Treasury Office given at the Justice, Media and the People’s Right to Know Conference, a meeting “means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. ‘Meeting’ does not include any on-site inspection of any project or program.’”

Some may ask what is “adequate public notice?” To be very honest, the law is not very specific on this issue. In fact, the Tennessee Supreme Court considered the phrase in Memphis Publishing v. City of Memphis lawsuit in 1974.

In their ruling on that case, they opined: “We think it is impossible to formulate a general rule in regard to what the phrase ‘adequate public notice’ means. However … adequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public.”

In other words, if the primary subject of the meeting is not expected to be of widespread interest, “the notice requirements may not be as stringent as if the issue that is expected to be of great public concern,” according to the County Technical Assistance Service electronic library known as e-Li.

As Hodge’s presentation states: “notice is deemed sufficient if ‘interested citizens’ are given reasonable opportunity to exercise right to be present at meeting.” However, as she also noted, the right to be present does not mean a citizen has the right to participate.

For special called meetings, the Tennessee Court of Appeals for the Eastern Section outlined a three-prong test for ‘adequate public notice’ for special called meetings based on its ruling in Englewood Citizens for Alternate B v. Town of Englewood in 1999.

The three-prong test includes the following:

  1. Notice must be posted in a location where a member of the community could become aware of the notice,
  2. The contents of the notice must reasonably describe the purpose of the meeting or the action to be taken, and,
  3. The notice must be posted at a time sufficiently in advance of the meeting to give citizens an opportunity to become of the meeting and to attend.

These requirements are in addition to, and not a substitute for, any other notices required by law. For example, county commission meetings are governed by different provisions of the law primarily T.C.A. §§ 5-5-104 and 5-5-105.

Under this section of Tennessee law, regular meetings “must be set by resolution of the county legislative body, and special called meetings require newspaper notice at least five days prior to the meeting that contains the agenda for the meeting,” according to CTAS’ e-Li publication.

The Wilson Post hopes these explanations of the law has provided you with a better understanding of what our local government bodies can and cannot do in regard to specially called meetings.

Compiled by Amelia Morrison Hipps, special correspondent to The Wilson Post.


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adequate public notice, Board of Education, BOE, Budget Commmittee, County Commission, Director of Schools, Don Weathers, Dr. Tim Setterlund, Lebanon, Mike Jennings, Mike Justice, Open Meetings Act, Sunshine Law, Tennessee, Wilson County
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