|OPEN MEETINGS ACT (“SUNSHINE LAW”)
In enacting the Tennessee Open Meetings Act, 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. As recognized by the Tennessee Court of Appeals, “Our Open Meetings Law is perhaps one of the most comprehensive and extensive in the nation. There are no exceptions except those situations which may be in conflict with the constitution.” Lakeway Publishers, Inc. v. Civil Service Board, 1994 WL 315919 (Tenn. Ct. App.). Ironically, the General Assembly itself is not subject to this law. See Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001).
Requirements of the Act
The Open Meetings Act, commonly referred to as the “Sunshine Law,” is found in T.C.A. § 8-44-101 et seq. The requirements of this law are as follows:
1. All meetings of any governing body are declared to be public meetings and must be open to the public at all times. T.C.A. § 8-44-102;
2. Adequate public notice of all regular and special meetings must be given. T.C.A. § 8-44-103;
3. The minutes of the meetings must be recorded and open to public inspection and at a minimum must contain a record of the 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); and
4. All votes must be by public vote, public ballot, or public roll call; secret votes are prohibited. T.C.A. § 8-44-104(b). Any action taken in a meeting in violation of any of the foregoing requirements is void. T.C.A. § 8-44-105.
Meetings Declared Public.
All meetings of any governing body are declared to be public meetings. T.C.A. § 8-44-102. “Meeting” is statutorily defined as “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.” T.C.A. § 8-44-102(b)(2). “Governing body” is defined in the statute 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).
274 The Tennessee Supreme Court has held that the act was intended to apply to “any governmental board, commission, committee, agency or authority whose members have authority to make policy or administrative decisions.” Dorrier v. Dark, 537 S.W.2d 888
(Tenn. 1976). In Dorrier, the Supreme Court created a two-part test for determining whether an organization is subject to the Sunshine Law: (1) whether its origin and authority may be traced to state, city or county legislative action, and (2) whether its members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people. The application of the Sunshine Law is very broad. Included, for example, are planning commission meetings (Op. Tenn. Att’y Gen. 88-132 (July 29, 1988)), conferences between a public body and its attorney except those concerning pending litigation (Smith County Education Ass'n v. Anderson, 676 S.W.2d 328 (Tenn. 1984)), local school board meetings (Dorrier), tenure hearings (Kendall v. Board of Education, 627 F.2d 1 (6th Cir. 1980)), work sessions of a legislative body (State ex rel. Akin v. Town of Kingston Springs, 1993 WL 339305 (Tenn. Ct. App. 9/8/93)), an out-of-state meeting of some school board members and the superintendent (Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990)), meetings of a county hospital board (Op. Tenn. Att’y Gen. 01-042 (March 19, 2001)), dismissal or suspension hearings for tenured teachers (Op. Tenn. Att’y Gen. 98-111 (June 12, 1998)), councils on aging and senior citizen center boards (Op. Tenn. Att’y Gen. 84-310 (November 19, 1984)), and the board of directors of a preferred provider organization (PPO) that was a subsidiary of a county hospital district (Souder v. Health Partners, Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998)).
The statute declares that a meeting occurs whenever a public body convenes for one of two purposes: to make a decision or to deliberate toward a decision. T.C.A. § 8-44- 102(b)(2). Therefore, it is not necessary that a decision be reached before the Sunshine Law applies. The statute does state 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. Courts have held that informal assemblages of a governing body at which public business is discussed and deliberated, including informal telephone discussions between members of a governing body, fall under the Sunshine Law. See, e.g., Littleton v. City of Kingston, 1990 WL 198240 (Tenn. Ct. App. 1990).
Because of the broad interpretation with which both the courts and the legislature have applied this act, the attorney general's office offers 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 purpose of the act is to prevent public officials from deciding or deliberating public business in chance meetings, information assemblages, or by electronic communications. The form of the meeting is not important; the statute is to be construed to frustrate all
evasive devices. State ex rel. Matthews v. Shelby County Board of Commissioners, 1990 WL 29276 (Tenn. Ct. App. 1990). While the Sunshine Law was amended in 1990 to add 275 authorization for meetings to be held by electronic means under certain circumstances,
this statute applies only to state government and not to local governments. See T.C.A. § 8-44-108. The Sunshine Law does not apply to meetings pertaining to decisions that are to be made by a single public official. For example, 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 official 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). Also, on-site inspections of any project or program are excluded from the definition of “meeting.” T.C.A. § 8-44-102(b)(2). While the Sunshine Law requires that all meetings of governing bodies be “open to the public,” the right of the public to be present 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).
Adequate Public Notice.
In order to meet the requirements of the Sunshine Law, “adequate public notice” must be given before all meetings to which the act applies. T.C.A. § 8-44-103. The statute does not elaborate on the requirements for this notice. The Tennessee Supreme Court considered the phrase “adequate public notice” as contained in the statute and observed, “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.” Memphis
Publishing Co. v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974). 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. For example, adequate public notice was found to have been given for a special meeting of a city council to hear the appeal of a police officer who had been dismissed, where the meeting had been advertised by posting notice inside city hall where water bills were paid and over the entrance to the police department and council room and on the bulletin board at the post office because this was a personnel matter involving one individual. Kinser v. Town of Oliver Springs, 80 S.W.2d 681 (Tenn Ct. App. 1994).
On the other hand, in Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990), the court found that the issue of clustering students in the same grade at one school was of “pervasive importance” and “arguably the most important action taken by the Board in many years.” The notice was held to have been inadequate under the circumstances because the public was not notified that clustering would be discussed. Even though Tennessee law does not require that notice of a regularly scheduled meeting include an agenda of the meeting, the court found that the importance of the clustering issue required that the public be advised that it would be discussed at the meeting. 276 When faced with determining whether notice of a special meeting fairly informed the public under the totality of the circumstances, the Tennessee Court of Appeals outlined a three-prong test for “adequate public notice” of special meetings under the Sunshine Law, which 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 aware of the meeting and to attend. Englewood Citizens for Alternate B v. Town of Englewood, 1999 WL 419710 (Tenn. Ct. App. 1999).
In Englewood the court noted that the town could provide adequate public notice by simply choosing reasonable public locations and posting notices at these locations on a consistent basis. 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). Meetings of county legislative bodies, for example, are also governed by the provisions of T.C.A. §§ 5- 5-104 and -105, under which 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.
Minutes of Meetings.
The minutes of meetings to which the Sunshine Law applies must be recorded and open to public inspection, and must contain a record of the 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 the statute is necessary. For example, the actions of a beer board denying a beer permit were invalidated because the minutes of the meeting did not contain the required information, and the court required the beer board to reconvene and consider anew the application for a beer permit in question. Grace Fellowship Church of Loudon County, Inc. v. Lenoir City Beer Board, 2002 WL 88874 (Tenn. Ct. App. 1/23/02).
Limited Exception for Attorney-Client Discussions. In Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn. 1984), the Tennessee Supreme Court recognized a narrow exception to the Sunshine Law for meetings between a public body and its attorney concerning pending litigation. The exception applies only to discussions between the members of the public body and the attorney; once any discussion begins among members of the public body as to what action should be taken based on the advice of counsel, those discussions must be open to the public. The application of the exception in the Smith County case was limited to cases in which there was present and pending litigation and the public body was named in the lawsuit. In Van Hoosier v. Warren County Board of Education, 807 S.W.2d 230 (Tenn. 1991), the Tennessee Supreme Court extended the exception to a meeting of the board with its attorney regarding a pending controversy that was likely to result in litigation. See also Baltrip v. Norris, 23 S.W.3d 336 (Tenn. Ct. App. 2000)(school board’s private meeting with attorney to discuss legal options concerning a pending charge of unprofessional conduct against a teacher did not violate the Open Meetings Act). 277
In summary, this 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 that is likely to be filed and to which the county is or will be a party,
and (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.
Penalties and Remedies for Noncompliance Any action taken at a meeting in violation of the Sunshine Law 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. In order to remedy a
violation of the Sunshine Law, however, the ultimate decision must be made at a meeting that satisfies the Sunshine Law and there must be new and substantial reconsideration of the issues involved. Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct.
App. 1990). Even if a subsequent meeting is held in compliance with the Sunshine Law, the ratification and confirmation of an action will not remedy a prior violation of the Sunshine Law if it is merely a “perfunctory rubber stamp.” Souder v. Health Partners, Inc.,
997 S.W.2d 140 (Tenn. Ct. App. 1998). Under the act, any citizen may bring an action in circuit court, chancery court, or any court
of equity to enforce the Sunshine Law. These courts are given broad authority to issue injunctions, impose penalties, and otherwise enforce the purposes of the act. T.C.A. § 8-44-106.
Questions concerning the application of this law may be referred to the county attorney or the CTAS staff.