Open Meetings Act ("Sunshine Law")
In passing the Tennessee Open Meetings Act, also known as the Sunshine Law, the General Assembly 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). Ironically, the General Assembly itself is not subject to this law. See Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001). Chapter 22 of the CTAS Tennessee County Government Handbook explains the Open Meetings Act in detail. The following are some situations that may arise in county government. Read each situation and try to determine if the situation describes a violation of the Open Meetings Act.
The Open Meetings Act defines governing body as "any public body consisting of two or more members with the authority to make decisions for or recommendations to a public body on policy or administration" (T.C.A.§ 8-44-102(b)(1)). In Dorrier v. Dark, 537 S.W.2d 888 (Tenn.1976), the Tennessee Supreme Court created a two-part test for determining whether an organization is subject to the Sunshine Law.
1. Whether an organization's origin and authority may be traced to state, city, or county legislative action.
2. Whether an organization's members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people.
In our example, the beer board's origin and authority may be traced to county legislative action and the two members eating lunch have authority to make decisions or recommendations on policy or administration that affects the tavern in question. Because of the broad interpretation with which both courts and the legislature have applied the open meetings act, the attorney general's office has offered the following advice:
"Two or more members of a governing body should not deliberate toward a decision or make a decision on public business without complying with the Open Meetings Act" (Op. Tenn. Atty. Gen. 88-169 (Sept. 19, 1988)).
The statute states that a chance meeting between two or more members of a public body should not be considered a public meeting subject to the terms of the act. However, the same statute goes on to warn that chance meetings shall not be used to deliberate public business in circumvention of the spirit of the act (T.C.A. § 8-44-102). So to mention that the tavern will be discussed at the next meeting is acceptable but to discuss the issues surrounding the tavern would be circumventing the spirit of the act.
The statute declares that a meeting occurs whenever a public body convenes to make a decision or to deliberate toward a decision. Private dinners of the school board to continue discussing relevant issues of the board would be a violation of the Open Meetings Act (T.C.A. § 8-44-102 (b)(2)). If the public is invited to attend the dinners, it would not be a violation.
The Open Meetings Act requires that
Since the public has been invited to attend the meeting and adequate public notice was given, the meeting outside the county is not in violation of the Open Meetings Act.
If a decision is to be made by a county official acting alone, then meetings of a committee appointed to make recommendations to the county offiical regarding this decision would not fall under the Sunshine Law. See, e.g., Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Gov't. 842 S.W.2d 611 (Tenn. Ct. App. 1992).
It's also important to know the following:
The Open Meetings Act requires that adequate public notice be given before all meetings to which the act applies (T.C.A. § 8-44-103). However, the statute does not elaborate on the requirements for this notice. If the meeting is one that would not be expected to be of interest to the general public, the notice requirements may not be as stringent as if the issue is one that is expected to be of great public concern. A notice in the county newspaper would have been a more appropriate means for providing adequate public notice for the budget meeting. The notice requirements of the Sunshine Law are in addition to, and not in substitution for, any other notice that may be required by law (T.C.A. § 8-44-103(c)).
Whether or not adequate notice has been provided is a question that must ultimately be determined by a court on a case by case basis. The statute does not specify what would or would not constitute adequate notice. The Tennessee Court of Appeals outlined a three-prong test for adequate public notice of special meetings under the Sunshine Law.
In addition to requiring notice of meetings and public access to meetings, the Open Meetings Act also provides that the public should be able to inspect or review the minutes of a meeting covered by the act. Under the act, the minutes must contain a record of all persons present; all motions, proposals and resolutions offered; the results of any votes taken; and a record of individual votes in the event of a roll call (T.C.A. § 8-44-104(a)). Strict compliance with this statute is necessary. In Grace Fellowship Church of Loudon County, Inc. v. Lenoir City Beer Board, 2002 WL 8874 (Tenn. Ct. App. 1/23/02), the minutes of the meeting did not contain the required information so the actions of the beer board at that meeting were invalidated.
Any action taken at a meeting in violation of the Open Meetings Act is void (T.C.A. § 8-44-105). While this provision does not forever bar a public body from subsequently ratifying an action taken in violation of the act, it does not allow a public body to ratify an action in a subsequent meeting by perfunctory affirmation of its earlier action. So in this case the beer board would need to discuss and reconsider the issues of whether or not to issue the beer permit.
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:
If you would like to learn more the Open Meetings Act or Sunshine Law, please refer to the CTAS County Government Handbook or contact your county attorney or CTAS field consultant.