Open government flap leads to more calls for ombudsman

By ERIK SCHELZIG
Associated Press Writer

NASHVILLE  (AP) _ A dispute between the State Ethics Commission and the Tennessee Bar Association over open government laws underlines the need for an independent ombudsman on open meetings and records, the director of a group advocating for the new position said Wednesday.

Allan Ramsaur, executive director of the Tennessee Bar Association, argued at a commission meeting Tuesday that members were circumventing the state's ''Sunshine in Government'' laws by discussing drafts of an opinion via e-mail.

Ethics Commission Executive Director Bruce Androphy responded that the correspondence falls under attorney-client privilege exceptions to open records laws. Androphy said he has asked the state attorney general's office to confirm that the documents can remain closed to the public.

Androphy said one commissioner e-mailed proposed edits to the opinion to other members, but that no deliberations or discussion took place before the draft was made public and discussed in the open meeting.

''We feel we're complying because there have been no deliberations, but if we are advised otherwise, we will certainly comply,'' Androphy said.

''The Ethics Commission will certainly follow whatever the law is.''

Frank Gibson, executive director of Tennessee Coalition for Open Government, said the creation of an independent authority on open government matters could help resolve the kinds of disputes that arose Tuesday.

''It certainly speaks for the need to have an independent office, independent of the Legislature, the executive branch, the judiciary, the attorney general _ and independent of any group that might become subject to complaints,'' Gibson said.

Gibson's group is calling for the creation of separate advisory board to oversee the work of an open government ombudsman within the Ethics Commission. The ombudsman could work as an attorney on other commission matters if it is not immediately a full-time job, he said.

''The proposal would not put it under the Ethics Commission, and not under Androphy,'' Gibson said. ''It would have its own board. These folks (on the Ethics Commission) are not experts on records and meetings.''

A special committee formed to propose updates to the state open government laws last month voted to delay making any recommendations _ including on whether to create an ombudsman _ until next year.

Gov. Phil Bredesen, who first suggested the creation of an open government ombudsman in February _ has vowed to press on for the new position when the next General Assembly convenes.

Gibson said placing the open government ombudsman within the Ethics Commission would create the greatest buffer from political interference.

In Virginia, open government attorneys also work for legislative committees, which Gibson called ''not the ideal situation.'

''It has to be somewhere where they can't be reassigned or dismissed by the speaker, or when you get a new governor or all that,'' he said. ''To be credible it has to be independent.''

Androphy said the Ethics Commission has not taken a position on the ombudsman proposal.

''We'll work with the governor's office and we'll have a dialogue with them, and however it's decided, we'll work with whomever,'' Androphy said.

On the Net:

Tennessee Ethics Commission: http://state.tn.us/sos/tec/

Tennessee Coalition for Open Government: http://www.tcog.info/
 

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Will Committee Have Time To Find Open Government Solution? 

By FRANK GIBSON
The Tennessee Press 

There has to be a better way to help public officials and employees, the press and the public
understand our public records and open meetings laws, but at press time the question was whether a special legislative committee had enough time to find it.

Facing Dec. 1 and Feb. 1 deadlines to report to the General Assembly, the committee didn’t start meeting until Oct. 16, shortly after House and Senate speakers named their members to the panel. Through no fault of committee chairman, Sen. Randy McNally of Oak Ridge, the panel has had problems getting its arms around a menu of long-ignored problems.

One Tennessee Municipal League representative doesn’t think there’s enough time to study everything that needs examining and advocates a more comprehensive review. It remained unclear what he has in mind -- concessions for local governments or making the laws easier to use.

TPA, Tennessee Association of Broadcasters, TCOG and SPJ representatives are pushing for a permanent open government council, staffed by an ombudsman/access counselor who could assist the public, government agencies and media with open government questions.  It is an option that works in other states to monitor the operation of open government laws, moderate needed improvements and screen proposed changes.

Since mid-August citizens and reporters continued to report abusive policies and practices that seemed to offend the spirit and letter of open meetings and records laws.

In Cookeville, citizens have sued the Putnam County Board of Education for ditching the director of schools without any advance public notice. They claim the decision to transfer the superintendent to an alternative school was made at an unannounced meeting and the item wasn’t put on the agenda until the beginning of the next public meeting. He continued to draw a $104,000 salary.

Similar situations were reported in Crossville, Celina, and Athens

Citizens are representing themselves pro se in Cookeville, always a risky proposition because bad lawsuits sometimes make bad law. Leaders said they had no choice because they couldn’t afford to hire a lawyer and there was no one to advise or otherwise help them.

In Athens, The Daily Post-Athenian reported that the chairman of the local public hospital board telephoned board members to give them a “heads up” that the CEO would be dismissed and a management contract cancelled at an upcoming regular meeting.  Some board members allegedly interviewed a successor privately before the board meeting.

In Loudon County, concerned citizens sued when the new county mayor (and former property assessor) decreed that anyone asking to see public records would have to pay a minimum of $25 fee, $25 an hour after that, plus copying fees.

The mayor indicated he would back off the policy after residents pointed out the state Attorney General had opined in February 2001 that the law “does not authorize a local government body to charge a fee for allowing inspection of a public record.” A court hearing is scheduled for Dec. 4, but the mayor has been hospitalized with heart problems so it could be delayed. The policy remains in effect.

That same legal opinion (OP 01-021 on the AG’s web site) didn’t stop officials in Smithville from charging a resident $50 for the time it took a city employee to copy an audiotape of a recent Board of Mayor and Alderman meeting. Smithville also has a new mayor.

It seems on the surface to be a textbook example of policies being implemented to -- in the words of the Tennessee Supreme Court -- “substantially inhibit disclosure of records.” Smithville residents say the same audiotape would cost $2 up the road in Putnam County.

Efforts to pass the new public records ordinance in Smithville started in the middle of a series of controversial developments, starting with the resignation of the police chief in August. He alleged in his resignation letter that the mayor – a 911 dispatcher – was abusing his authority and position by calling SPD officers in the field and trying to “sway” them not to ticket friends.

Citizens began asking questions and a public records request led them to a year-old city audit charging that traffic tickets were not filed properly and were not being sent to the Department of Safety as the law requires. They also found a letter from the state Municipal Technical Advisory Service, citing several instances where the town charter and practices do not comply with state law.

Next came the ordinance to regulate the release of public records, including fees to cover the salary and benefits of city employees for time spent “retrieving, supervising access, inspection, and reproduction of records.” The ordinance said “the City of Smithville is entitled to be compensated for supervising access to and inspection of its records and for the reproduction of said records. The city proposed to charge 75 cents a page for copies, but that got reduced to 25 cents.

When Smithville citizens pointed out the AG opinion, they received a terse letter from the city attorney on behalf of the mayor.

“Not unlike your own opinions,” City attorney Sarah Cripps wrote resident Faye Sandosky, “the opinions of the Attorney General do not have the force of law and do not constitute binding precedent. The Tennessee Supreme Court has never been asked to rule upon the constitutionality of the recently passed Ordinance No. 382.”

Attorney Cripps was right, but the Court ruled in 1998 that “there is no authority under the (Records) Act allowing an agency to establish rules that would substantially inhibit disclosure of records.

“Moreover,” the court wrote, “limiting an agency to rules that govern only the actual ‘making’ of the extracts, copies, photographs or photostats is consistent with the legislative policy in favor of the fullest possible public access.”

Citizens then asked Cripps to explain “the legal basis for your cost determination” for the $50 tape of an Oct. 2, 2006, Board of Mayor and Aldermen meeting. They said they were told that MTAS had advised them the proposed ordinance was okay. Citizens say they then asked to see the legal authority MTAS had used because it seemed to conflict with AG opinions.

“Be advised that there exists no law which mandates that the City Attorney or City Hall retain drafts and/or working papers of ordinances,” Cripps wrote. The next step was to ask the MTAS consultant for the information.  They said he told them “Smithville had advised him not to talk to citizens directly” and that he could not locate records of what he sent to Smithville.

So what is a citizen or reporter for a smaller newspaper to do?  The reporter can write about it.

Neither can go to the local DA. He or she has no authority. They can’t go to MTAS or its county counterpart, CTAS, because they advise cities and counties. They can’t go to the state AG, who made it clear to citizens in Sevier County earlier this year that it couldn’t help citizens with sunshine law problems. That office has quit issuing opinions requested directly by local government.

They can’t ask the Governor. Residents of other counties say they have tried that in the past, to no avail because he has no authority, either.

All Tennesseans can do is seek “judicial review” and risk having to pay the legal bills themselves. Many times local attorneys are not as conversant with that body of law. Even if their inexperienced attorney wins, the court might not award plaintiffs legal fees because the judge could find that the violation was not “willful and knowing” because the law is vague and/or the agency head was ignorant of the law.

Newspapers have found in recent years that judges don’t award fees, even in cases where the defendant agency made no secret of its intent to skirt the law. That happened in Rutherford County a few years ago.

Citizens tell me they are reluctant to sue because it feels like they’re suing themselves. In essence, it may cost them a lot of money to do what they have every right to expect the government to do – enforce the law or at least get some advice.

Some, like a parents group in Elizabethton, are finding cheaper and more effective ways. Parents mounted a recall drive and in August 79% of the voters there voted to remove two elected school board members over alleged sunshine law violation and questionable records policies of the schools director.

Other states are helping protect citizens’ rights of access to public information. They have agencies that advise citizens, government officials and the media when such issues arise. The most notable and the oldest is the New York State Committee on Open Government, in operation continuously for three decades. There’s the six-year-old Virginia Freedom of Information Advisory Council and Indiana’s seven-year-old Public Access Counselor’s Office.

The Virginia Council reports receiving 1,652 inquiries and requests last year -- 756 from government officials, 687 from citizens, and 209 from media.  Its two part-time staff attorneys provided 4 written opinions to government officials, 11 to citizens and 1 to media.

In New York, the three-person staff there handled 6,000 informal inquiries by phone and prepared 815 written advisory opinions. Almost 3,000 queries came from government agencies, 1,800 from citizens and 1,200 from the news media. Its advisories are posted on a state web site which saw 1 million “hits” and 150,000 “visits” in first 11 months of last year.

Indiana is much more formal and its opinions carry more weight.

The proposal we are making to the study committee is a composite of best practices of those states and is tailored to address common problems in Tennessee. If the concept is accepted here, the duties, responsibilities and powers of the office would have to be defined by the study committee or the governor and ultimately by the General Assembly.

Gov. Phil Bredesen endorsed the ombudsman idea when he spoke at TPA’s Winter Institute and Convention in February and again in a gubernatorial forum televised statewide on Oct. 14. He had not been presented details of the proposed council.

Here’s what a properly-structured open government council and ombudsman office should look like:

1. To enhance the credibility of its advisory opinions it should be independent of any branch of government and the Attorney General, who could find his office in conflict since it represents/defends almost every state agency.

2. For consistency it should be an authoritative source of information and informal advice based on current statutes and most recent case law so the public, people in government, and the media have the benefit of the same advice. It could eliminate a lot of unnecessary litigation.

3. It should collect data based on inquiries and complaints it receives and report it to the appropriate authorities. That way problems can be documented and addressed and the statutes can be brought into the 21^st century.

4.  It should have the authority to review and comment on all newly proposed exemptions or other changes in the records and meetings laws. The review should be more comprehensive and balanced than the current legislative process. It could be charged with reviewing new local rules and regulations for form and legality.

5. Oversight should be vested in an independent board of citizens, government and media representatives. It should be smaller than the 18-member study panel but diverse.

Robert Freeman is the executive director of the New York State Committee on Open Government and has been on its staff since its inception 32 years ago. Testifying before a Virginia legislative committee in 1999, he gave the most compelling reason to have such an office here.

“It is possible that other states may have better and more sensible Freedom of Information or open meetings laws, but if there is a problem and nobody to call to seek guidance, those laws may be less heeded and less valuable than they should be.”

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