Citizens Left To Enforce 'Sunshine' and Records Laws

By FRANK GIBSON
TCOG Executive Director

“Where else does the private sector have to pay to get a statute enforced?”

Kingsport Times-News Publisher Keith Wilson was referring to Tennessee’s meetings and records laws and the fact his newspaper “has spent thousands of dollars in legal fees over the years and we’ve yet to have a judge award us the cost of enforcing the statute.”

Chattanooga Times Free Press Publisher Tom Griscom notes one public official there makes no secret that he is building staff time into copy fees despite opinions by the Attorney General in 2001 and 2002 that state law does not allow it.

Such practices allow uncooperative or outright unfriendly public officials to skirt the law, and they put editors into a quandary about when exactly it is worth going to court.

Griscom and Wilson agree it’s not about the money. For news operations, it is the cost of doing business. Some news operations are buying portable copiers in the ongoing chess match and taking them to the courthouse.

One state agency balked because its records policy didn’t mention allowing someone to make their own copies. It had already made copies to redact information contained on the original. It reversed when the reporter offered to pay and wrote “paid under protest” on the check.

It’s the principle, says Griscom, noting that private citizens don’t have the resources to challenge questionable policies. Unreasonable fees are just one example. Citizens don’t know the law, don’t have or can’t hire an attorney or don’t think it’s worth it. For them, buying a scanner would be an unthinkable waste.

The real cost for the government is a frustrated public and affirmation that “you can’t beat City Hall.”

Legal fees are designed to be a deterrent, but they are not mentioned in the open meetings law. They are discretionary in records cases and judges are refusing more frequently to assess them against fellow elected officials, who seem to be the only people who can get away with claim ignorance of the law as a defense.

Where’s the deterrent value when the cost for violating the law comes out of public funds. One small city tried to collect damages from citizens in an annexation sunshine law case, claiming the lawsuit was frivolous.

IT’S A RIGHT
The Tennessee Supreme Court said in 1976 that Tennessee’s Constitution “provides freedom of the press, open government and freedom of speech” all in one section “Clearly,” the court said in a 5-0 opinion, “the Open Meetings Act implements the constitutional requirement of open government.”

We expect a special joint study committee to be talking later this year about how to enforce those constitutional rights, which the legislature has codified in laws that don’t appear to be working very well.

Hopefully, we won’t get too bogged down in mechanics.

The statewide public records audit 18 months ago showed training was a problem because many public officials and employees do not know enough about the law. With no penalties there’s no incentive to learn.

A state Supreme Court justice, who once represented the Tennessee Municipal League, advised city officials earlier this year that it takes less time to comply with the law than it does to defend lawsuits.

Recent examples show training continues to be a problem.

The state Board of Equalization recently found that the Sumner County board was violating the sunshine law by not allowing property owners to stay in the meeting room during deliberations on their tax appeals. It had been local policy for years, even though the state said local boards are trained to comply with the open meetings law.

The sunshine violation survey last year found one mayor who met in private with the city commission before a regular meeting. He told a local reporter the law has no penalties so there was nothing anyone could do about it.

Now, in Coopertown, a quiet little community just north of Nashville, the District Attorney has filed an ouster lawsuit against the mayor for, among other things, meeting in secret with two aldermen before announced meetings to establish majority positions on agenda items. The suit alleges he also failed to advertise proposed ordinances as the law requires alerting the public in advance of major changes.

The lawsuit, filed after more than 500 residents petitioned the DA, accuses the mayor of running a speed trap, racial, military and out-of-towner profiling in traffic stops, and having police officers harass his political enemies. It quotes the mayor as saying: “The T.C.A. doesn’t matter. I’m the mayor and I’m going to run this city like I run my business.”

Ouster suits are rare, but it’s the only way to get the local District Attorney involved in open meetings and records law cases.

MAY REQUIRE COMPROMISES
Fixing some of the shortcomings may not be easy and political circumstances may require significant compromises, including changes in the laws already on the books.

We don’t know whether county government will be more receptive or whether local officials will continue to argue that the open meetings act should not apply to them until it is applied to the General Assembly. The same argument was made in 1974, but in all the legal challenges local governments have mounted through the years, I never seen if raised in court.

School boards may continue to argue that the law’s “chance meeting” (aka “two or more”) provision makes it impossible for two members to go fishing together because someone might claim they’re violating the law. Consequently, we may see arguments that the sunshine law should only apply where a quorum is present. Some in TPA believe the two or more is too high of a standard.

We hear arguments all the time that nothing could get done in the General Assembly if two members could not talk to each other about bills as they walk down the hall. In fact, a half dozen proposals to put the legislature under the sunshine law – most filed by GOP lawmakers – said a quorum would have to be present before the meeting would be open.

That raises the question of what the sunshine law really says. It also shows a basic misunderstanding of what the “two or more” prohibition means.

CHANCE” MISUNDERSTOOD
TCA 8-44-102 ( c ) says: “Nothing in this section shall be construed as to require a chance meeting of two (2) or more members of a public body to be considered a public meeting.”

Then it says: “No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this Part”

Tennessee courts have called the first sentence a loophole and the second a “loophole closer.”

The law doesn’t say two members can’t talk. The statute and the courts have said chance meetings can’t be used as part of a scheme to deliberate or decide public business out of public sight.

It is wrong to say two members are violating the open meetings law if they’re seen together outside a meeting. There would have to be some proof they were talking about a specific piece of business as part of a scheme to deliberate or decide some question before them.

The courts have done a good job of translating the intent of the legislature and the sunshine law in general. Two cases illustrate the point.

The first was in 1986. A county commissioner sought to fill the vacant post of county trustee. He contacted other commissioners and asked for their support. He got the job and a key employee claimed the commission violated the open meetings law.

The state Court of Appeals found there was “no allegation or proof” that any of the commissioners had deliberated or decided among themselves prior to the meeting.

The Tennessee Supreme Court, ruling in a case challenging the constitutionality of the sunshine law in 1976, cited language in a Florida case to describe the Tennessee legislature’s intent. (Tennessee’s law was modeled after Florida.)

“It would be contrary to reason and violate the right of free speech to construe the law to prohibit any discussion whatever by public officials between meetings. The practice of discussing politics and government is part of our American heritage enjoyed by public officials and private citizens.”

“The evil of closed door operation of government without permitting public scrutiny and participation is what the law seeks to prohibit. If a public official is unable to know whether by any convening of two or more officials he is violating the law, he should leave the meeting forthwith.

“It is the law’s intent that any meeting, relating to any matter on which foreseeable action will be taken, occur openly and publicly.”

WHAT ONE LOOKS LIKE
Here’s an example of what Tennessee appellate court found to be a violation.  It came in 1990 in a case from Memphis.

A member of the Shelby County Commission died, leaving a vacancy. None of the candidates to replace him appealed to a majority of the 10 commissioners left with the duty to fill the post.

Commissioner 1 contacts Citizen A and tells him that he can get him the votes if he will take the job. Citizen A accepts.
Commissioner 1 contacts Commissioner 2 by phone or outside a meeting and he agrees to support Citizen A.
Commissioner 1 then secures vote of Commissioner 3.
Over the next few days, Commissioners 1, 2, and 3 contact “most” of the remaining seven members.
Commission chairwoman tells Commissioner 3 that if Citizen A’s name came to her as the last vote needed, she would make it #6.
Commissioners 4 & 5 sign on and Citizen A is selected.
 
It apparently wasn’t expedient to do what the political parties have done historically – pare down the list in a series of ballots until one candidate gets a majority.  A local trial judge tossed out a challenge by another candidate and the Court of Appeals reversed, saying the process “did not afford the residents of the district and the public at large an opportunity to be involved in any meaningful way.”

The 1990 opinion referred back to the 1976 decision upholding the constitutionality of the law. “Clearly, the Sunshine Act does not apply to public officials who meet by chance and just happen to discuss public business,” the high court said.

“It is equally clear that the Act must apply when public officials meet in secret to deliberate and make decisions affecting the public’s business with the intent to hold an open meeting to announce their decision at a later time…”

The court in 1990 said that the legislature adopted the “chance meeting” ban as a “loophole closer” because the General Assembly recognized public officials could evade the literal “quorum” and “meeting” requirements of the act.

The survey of 115 alleged sunshine law violations and complaints between 2003 and 2005 found only two cases where someone claimed a violation occurred because two members had a conversation outside a meeting.

The other cases were full quorum meetings with no notice (even to other members), no minutes kept or not available weeks later, unannounced retreats and workshops where business was discussed, use of secret ballots which are illegal, meetings cancelled when reporters show up, and discussing business via email, despite repeated warnings from city attorneys.

The open meetings law has been under attack since its passage. In the first two court challenges, local government lawyers said “adequate public notice” was too vague and that the whole law was vague, overbroad and arbitrary.  They said “governing bodies” were not defined well enough to know who was covered and that the term “to deliberate toward a decision” was not clear enough for someone to be able to avoid violating it.

The court said that except in “very few situations” would officials be unable to tell that a quorum was present and whether they were deliberating.

Today, when secret meetings are discovered, officials say it was not a meeting under the sunshine law because how could they be deliberating public business if “no votes were taken.”

Frank Gibson is coordinator of the TPA Freedom of Information Committee and executive director of the Tennessee Coalition for Open Government. He welcomes comment and questions at fgibson@tcog,.info or at 615-202-2685. Write: P.O. Box 22248, Nashville 37202-2248