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.

1. A local tavern has been cited twice for serving beer to underage patrons. At the next beer board meeting the beer board will discuss whether or not the tavern should lose its beer license. Two members of the beer board met for lunch for the purpose of discussing the tavern's situation. Is discussing the tavern's situation a violation of the Open Meetings Act?

Yes
No

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)).

2. What if the two beer board members just happened to run into each other at a local restaurant and one of the members mentioned they would be discussing the tavern at the next meeting? Would that be a violation of the Open Meetings Act?

Yes
No

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.

3. After school board meetings, the school board always goes to dinner together to continue discussing issues raised during the meeting. Is this a violation of the Open Meetings Act?

Yes
No

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.

4. A school board has scheduled a weekend meeting in a resort town in Tennessee outside of the county they represent. The county/taxpayers will be paying the expenses for the trip. At the meeting they will be discussing future plans for the school system. The public has been invited to attend the meeting. Is this meeting a violation of the Open Meetings Act?

Yes
No

The Open Meetings Act requires that

• All meetings of any governing body be declared to be public meetings and must be open to the public at all times (T.C.A. § 8-44-102).
• Adequate public notice of all regular and special meetings be given (T.C.A. § 8-44-103).

  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.

5. The County Mayor needs to make a decision on the historical preservation of a theater and whether or not the county should invest funds to restore the theater or tear the theater down. The County Mayor appoints a committee to analyze the situation and make recommendations. Each meeting of this committee is private; the public is not invited. Is this a violation of the Open Meetings Act?

Yes
No

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:

• On-site inspections of any project or program are excluded from the definition of meeting (T.C.A. § 8-44-102 (b)(2)).
• The right of the public to be present at meetings of governing bodies does not necessarily include the right to participate in the meeting itself (State ex rel. Akin v. Town of Kingston Springs, 1993 WL 339305 (Tenn. Ct. App. 9/8/93)).

6. A county budget committee scheduled a meeting to discuss the shortfall in the last year's budget. In order to provide adequate public notice, they posted a notice of the meeting on the bulletin board in the county courthouse. Would this be considered adequate public notice under the Open Meetings Act?

Yes
No

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)).

7. A special meeting of a city council was called to hear the appeal of a police officer who had been dismissed. Notice of the meeting was posted inside city hall where water bills are paid, over the entrance to the police department, over the entrance to the council room, and on the bulletin board at the post office. Would this be considered adequate public notice under the Open Meetings Act?

Yes
No

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.

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.
3. The notice must be posted at a time sufficiently in advance of the meeting to give citizens an opportunity to become aware of the meeting and to attend (Englewood Citizens for Alternate B v. Town of Englewood, 1999 WL 419710 (Tenn. Ct. App. 1999)).

8. A local MADD organization wanted to review the minutes of the last beer board meeting but their request was denied. Is this a violation of the Open Meetings Act?

Yes
No

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.

9. In Grace Fellowship Church of Loudon County, Inc. v. Lenoir City Beer Board, 2002 WL 8874 (Tenn. Ct. App. 1/23/02), the actions of a beer board denying a beer permit were invalidated because the minutes of the meeting did not contain the required information. The court required the beer board to reconvene and consider anew the application for a beer permit. Since the beer permit had already been denied, under the Open Meetings Act can the beer board ratify this action in a subsequent meeting by routine affirmation?

Yes
No

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.

10. 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
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.

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.