Bredesen Supports Ombudsman Despite Study Committee Delay  

Counties disclose wish list

By FRANK GIBSON
TPA FOI Coordinator 

The difficulty in trying to write a column for a monthly like The Tennessee Press is that sometimes news breaks out and things change.

That’s what happened in November when I tried to make the argument for, and lay out the details of, an Open Government Council and ombudsman proposal we had planned to make to the joint legislative study committee on open government.

We expected it to be discussed at length at the scheduled Nov. 27 meeting. Well, a slight delay in production pushed publication past Nov. 27 -- just enough to make it too late to redo the column but not too late to get an AP piece on the whole study being delayed. So, you got what looked like a planned package – background and the news.

I hope you had time to read both and that you passed your copy on to others – particularly to editorial writers, columnists, editors and publishers. If not, you can find most of it online at www.tcog.info.

I like the headline that the Associated Press put on its story -- “Panel to Overhaul Open Government Laws Punts to 2008.” I doubt that even Titans rookie quarterback sensation “In-Vince- able” Young could have converted this third and long.

All is not lost. There was some discussion and good questions about the council but the delaying motion cut off serious consideration.

GOVERNOR’S SUPPORT CRUCIAL

Gov. Phil Bredesen has repeatedly expressed support for the ombudsman position within state government and ideally within the new independent Tennessee Ethics Commission. It should be under its own advisory board, but the governor has not embraced the whole package yet.

He stated his support for the first time publicly at the TPA Winter Institute in February. The AP quoted him then as saying an ombudsman would “ease access to government by everyone and also ease access by small newspapers.” He noted that some newspapers don’t need the help as much as others.

“In our state,” Bredesen told the AP, “you can be a member of a news media organization and have lots of lawyers you can get to, to challenge people who don’t offer open records. But, for an ordinary citizen, they’re not likely to go spend a few thousand dollars to try to get access to a record.” One publisher characterizes those un-reimbursed legal bills as the public having to pay extra to have the government enforce a law.

Bredesen repeated his commitment during a League of Women Voters gubernatorial debate televised statewide in October, and renewed it when the AP called for reaction to the study committee’s decision to ask for another year to study.

Noting again that some individuals and smaller news organizations “can’t afford court challenges,” the AP reported that Bredesen “vowed to press ahead” with the ombudsman proposal despite the committee delay.

“He intends to pursue the creation of this position in state government,” Press Secretary Lydia Lenker said. “He intends to discuss this with the board of the newly created ethics commission to fine the best location to house it.”

As the AP noted, the study panel of citizens, media and government officials was created as a compromise in the legislative session after county and city official associations opposed the first significant changes to the state’s “Sunshine in Government” laws since they were created in the aftermath of Watergate.

I don’t know this for sure, but I’d bet the governor was miffed that the study had been put off at the urging of the Tennessee Municipal League. It was the governor who first mentioned the need for a study when a TPA member asked him at the Winter Institute whether he supported the reform legislation. He said proposed sunshine changes deserved some study but opted not to take a position.

Editorial writers, publishers, columnists and editors – anybody with a voice or the power to give voice on important issues – need to give the governor his due. He deserves credit for supporting a concept that has helped protect the public’s right to know in other states.

ABOUT MORE THAN US

Local government lobbyists are trying to make this about the press, not the public. In fact, the chief lobbyist for the Tennessee County Services Association went out of his way to malign an unnamed “person who worked for the press.”

Goddard said “some of our people” told him the “person” tried to mislead court clerks in a 2005 workshop to think they were required to notify the press “if the judge was going to have a hearing on whether to close the record.” I was on the same panel at Fall Creek Falls and it didn’t happen the way he said.

In a related matter, the Chattanooga Times Free Press reported in November that local governments spent between $2.7 million and $3.1 million lobbying at the state Capitol between 2003 and 2005 – that’s about $1 million a year in taxpayer money to support an army of lobbyists in Nashville. (Footnote: The Williamson County Board of education dropped out of the Tennessee School Boards Association rather than pay thousands of dollars in annual dues.)

While the governor had endorsed only the position of ombudsman, we hope he will see the wisdom of giving it some independence by placing it under a council of citizens and representatives of media and government. He needs encouragement there and we hope to have the details of our proposal laid out for his staff by the time ink hits paper on this edition of TTP.

Nashville lawyer Alan Johnson, TCOG’s legal counsel, presented our case at the Nov. 27 meeting. Doug Goddard, former county executive in Jefferson County, now the chief lobbyist for TCSA and the county commissioners association, presented the arguments for local government.

It was Goddard who told Erik Schelzig, AP’s Capitol Hill reporter in February that setting a penalty for sunshine law violations would scare off qualified candidates from seeking office. "You're just going to have nuts out there who want to burden local governments," he said.

Goddard said he had decided against trying to “make a bad bill better” and instead would try to defeat the proposed reforms.

After Goddard’s presentation on Nov. 27 TML counsel George Barrett asked to be recognized for a motion. Before the committee could get to two other items on the agenda, Barrett moved that the committee be dissolved, a new panel be created by the 105^th General Assembly and given until Feb. 1, 2008 to complete its work. Sen. Randy McNally, the Oak Ridge Republican chairing the panel, said he didn’t want the committee to quit after just three meetings over six weeks. Barrett compromised, but under the rules of the state House, if Barrett’s first motion failed it could have been June of 2007 before the panel would be able to meet again.

It reminded me of the favorite expression of a Nashville city councilman when he realized his opposition had gotten together before the meeting to hand him his hat. “I see where this train is headed.”

The vote was pro forma after Goddard painted a horrible picture of public officials being burdened under the current sunshine law. Proposed changes would make it worse.

LOCAL GOVERNMENT WISH LIST

Here’s what Goddard’s group wants:

1.  To add 6 new “subject matter” exemptions to allow governing bodies to go into “executive session” to discuss such things as applicants for top jobs and matters that involve “confidential records.” With 230 exemptions in the records law, that is scary.

            Goddard told the committee that Tennessee has no exemptions in its statutes, compared to a national average of 9 per state. In addition to the lawyer-client meeting privilege, the Tennessee Code now has 4 exemptions, including three in the body of the sunshine law. One of those allows the Tennessee Municipal League to close meetings to discuss “propriety information” or “trade secrets” involving its municipal bond pool.

2.  To remove the word “deliberate” from the “chance” meeting provision that now states 2 or more members can’t meet “to decide or deliberate public business in circumvention of the spirit or requirements” of the act.  More than one elected official on the panel claimed they fear going to a neighborhood or crime watch association meeting, PTA meeting, awards dinner, or other events if another member of their elected body is invited, too. One county commissioner from an urban county said he doesn’t know whether it would be a violation of the sunshine law for him call the chairman of the county commission’s CATV committee to pass on or inquire about a constituent’s complaint against the local cable franchise.

Goddard said at one point that two of the biggest problems his association has is “education and turnover” among public officials. Some states mandate training, not Tennessee.

In 32 years of working under the sunshine law, I have never heard one of those scenarios used as the basis of a complaint or lawsuit, and not one of the 115 published in the TCOG survey involved such. Nobody, to my knowledge, has ever accused to members of a governing body getting together at a picnic “to decide or deliberate public business,’ but Goddard reinforced their fears. He told the panel “the AG has really tightened up on two people talking outside a meeting.”

3.  To remove the proposed $50 personal civil penalty if a judge finds a member guilty of violating the open meetings law. Goddard said his attorneys have told him that the “impose penalties” phrase in the law now allows a judge to penalize a violator any way the judge sees fit. Wrong again.

            The state Supreme Court made it clear in 1976 that the only penalty allowable under the law is a contempt citation for a second offense if the member violates an injunction the judge imposed after the first violation.

4. To remove the words “freely available” and “participate equally” from this proposed aspirational statement: “information concerning the operations of all governing bodies should be freely available to all persons to allow them to participate equally in decisions affecting their lives.”

We agreed to drop that language 9 months ago when county lobbyists said it was an effort to repeal the copying fee provision in the records law and that the words “participate equally” meant everybody at a meeting would get to speak.

5. To add “community events, educational workshops or seminars or meetings of organizations of government officials” to the list of exemptions of the 2 or more chance meeting provision. Since those scenarios have never produced complaints either, we see little problem with this one. Last year, the argument was two members couldn’t talk to each other in church, at the high school football game, or go fishing together without being accused of violating the law. Has never happened, but TSBA still maintained that if you arrange to go fishing with a fellow board member, that wouldn’t be construed as a “chance” meeting.

            The point is not the form of the meeting.  It’s the purpose of the meeting and  whether business gets conducted.

            The law doesn’t say two members can’t talk to one another between meetings, and court cases, various legal opinions by CTAS and the AG have made it clear it meeting to “make a decision or to deliberate toward a decision on any matter” that is operative.

6. Add telephone conference meetings like state boards and commissions are allowed to do under strict guidelines, including making provisions for the press and the public to listen in.

            7.  Finally, Goddard said his group “would like the committee to consider whether the Open Meetings Act and other laws regarding public notice” be amended to allow alternative forms of publication such as providing notice via radio, television, an Internet web site or email.

            The committee is only charged to review the “open government” laws – that’s meetings and records. There are no publication requirements under the “adequate public notice” provision of the sunshine law.  

            So, the drill seems to be to stall, stall and stall some more by raising new issues that may be are and may not be aren’t under the committee’s charge. The only issues raised back during the legislative session were burden of proof (gone), eliminate 2 or more, the possible $50 civil fine, and the “freely available” (gone) and “participate equally” (gone) language.

As the late TPA lobbyist John Reed used to tell me when someone was trying to place a lot of amendments on a bill: “they’re hanging it like a Christmas tree.”

Frank Gibson is a retired Tennessean reporter and editor and serves as TPA’s Freedom of Information coordinator. He is executive director of the Tennessee Coalition for Open Government and welcomes questions and comments at fgibson@tcog.info, 615-202-2685 or write TCOG, P. O. Box 22248, Nashville 37202.