The Open Meetings Act or the Sunshine Laws

As a way to educate the public and some local officials. The Banner is providing a crash course in the Opening Meetings Act or what is also known as the Sunshine Law. Supreme Court Justice Louis Brandeis said over a century ago, “Sunlight is said to be the best of disinfectants.” This simply means that transparency provides for good governance.

First let’s begin with defining the Sunshine Laws — In enacting the Tennessee Open Meetings Act (TOMA), 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).

In short, you have a right under Tennessee public meetings law, Tenn. Code Ann. § 8-44-101 through § 8-44-111, to attend any meeting held by a governing body where a quorum of members is required to make a decision, except where otherwise provided in the state constitution.

Who enforces Opening Meetings or Sunshine Law?
Enforcement of the Open Meetings Act has been left to citizens and the press through lawsuits in local Chancery and Circuit courts. But the public had no way to get authoritative guidance on potential violations of the law outside of a lawsuit until 2008 when the Office of Open Records Counsel was created.

The Counsel’s office has more authority to deal with local public records issues than with the sunshine law, but the legislature made the office responsible for monitoring local open meetings problems, too.

Is a Parks and Recreation Board or the Library Board subject to the Opening Meetings Act?
If a board or committee appointed by your governing body is authorized to make recommendations to the governing body that may affect policy or decisions, the committee or board is a “governing body” subject to the TOMA. Such boards include planning commissions, beer boards, boards of zoning appeals, and economic development boards.

What happens if the Opening Meetings Act is violated?
Any action taken at a meeting in violation of this part shall be void and of no effect; provided, that this nullification of actions taken at such meetings shall not apply to any commitment, otherwise legal, affecting the public debt of the entity concerned.

From T.C.A. § 8-44-105:
(a) The circuit courts, chancery courts, and other courts which have equity jurisdiction, have jurisdiction to issue injunctions, impose penalties, and otherwise enforce the purposes of this part upon application of any citizen of this state.

(b) In each suit brought under this part, the court shall file written findings of fact and conclusions of law and final judgments, which shall also be recorded in the minutes of the body involved.

(c) The court shall permanently enjoin any person adjudged by it in violation of this part from further violation of this part. Each separate occurrence of such meetings not held in accordance with this part constitutes a separate violation.

(d) The final judgment or decree in each suit shall state that the court retains jurisdiction over the parties and subject matter for a period of one (1) year from date of entry, and the court shall order the defendants to report in writing semiannually to the court of their compliance with this part.

Here's a little case law to wet your whistle.
Knoxville Sentinel vs. Knox County — The most notable voided action came in 2007 when a Chancery Court jury found several Knox County commissioners had deliberated in private before voting to fill eight vacancies on the commission and four vacant countywide offices, including sheriff.

After a two-week trial, the Knox County judge accepted the jury’s verdict and tossed all 12 officials out of office. It was the first such jury trial under the sunshine law. Members of the commission had to testify about their conversations under oath.

In addition to invalidating the action, the court can “permanently enjoin any person adjudged by it in violation” from repeating that illegal conduct. As the Supreme Court has noted, the term “impose penalties” in the law means contempt citations against officials who violate the injunction.

The goal is to protect the public from actions taken in circumvention of the policies and procedures set out in the statute and case law. It is designed to correct those actions, not penalize individual members of governing bodies. They can only be punished for contempt if they violate an injunction, or ultimately at election time.

Neese v. Paris Special School District — In Neese v. Paris Special School District (1990), the Court of Appeals introduced the idea that a governing body that violates the Open Meetings Act can “cure” that violation by “new and substantial” reconsideration of their actions, essentially doing it over by following the law.

Although the court found the school board deliberated on a rezoning plan at a retreat in violation of the Open Meetings Act, it ruled that the school board’s eventual vote in public was legal.

The court reasoned the actions of the school board after the retreat but before a formal vote fixed the violation. The board scheduled a public meeting, gave adequate notice and then allowed a three-hour public question and answer session on the issue. The court said:

T.C.A. § 8-44-105 provides that “[a]ny action taken at a meeting in violation of this part shall be void and of no effect… .” We do not believe that the legislative intent of this statute was forever to bar a governing body from properly ratifying its decision made in a prior violative manner. However, neither was it the legislative intent to allow such a body to ratify a decision in a subsequent meeting by a perfunctory crystallization of its earlier action. We hold that the purpose of the act is satisfied if the ultimate decision is made in accordance with the Public Meetings Act, and if it is a new and substantial reconsideration of the issues involved, in which the public is afforded ample opportunity to know the facts and to be heard with reference to the matters at issue.

Here are some Fun Facts provided by the Tennessee Comptroller’s Office.

What constitutes a meeting of a governing body?
The Tennessee Open Meetings Act defines a “meeting” as “the convening of a governing body of a public body for which a quorum is required to make a decision or to deliberate toward a decision.” A “governing body” is “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.” Tenn. Code Ann. § 8-44-102.

Meetings to make a recommendation to a single individual, such as a county mayor or dean of an educational institution, are not “meetings” covered by the Open Meetings Act. On-site inspections, chance meetings, and informational workshops are also not considered “meetings” under the Act, so long as there is no discussion or deliberation toward a decision that must be voted on by a quorum of a governing body. Advisory meetings with attorneys regarding anticipated or ongoing litigation are also exempt from the Tennessee Open Meetings Act, but actual decisions regarding litigation must be made at an open public meeting.

What is adequate public notice?
Adequate public notice is not defined in the Tennessee Open Meetings Act. Tennessee courts have determined that adequate public notice is sufficient notice under the circumstances that would fairly inform the public of the meeting. Memphis Publ’g Co. v. City of Memphis, 513 S.W.2d 511, 513 (Tenn. 1974).

Can I participate in a public meeting?
The Tennessee Open Meetings Act grants the public the right to attend and observe public meetings. It also requires governing bodies to provide a period for public comment at every meeting where there is an actionable item on the agenda. The public comments must be germane to items on the agenda. The governing body may put reasonable restrictions on the period for public comment, such as the number of speakers or the time period for public comment. A governing body must ensure opposing viewpoints are fairly represented. 2023 Public Chapter 0300.

What are the requirements of the Tennessee Open Meetings Act?
The Tennessee Open Meetings Act declares that the formation of public policy and public business must be transacted transparently and not in secret. Tenn. Code Ann. § 8-44-101(a). To accomplish this goal, the Tennessee Open Meetings Act requires that all meetings of a governing body be open to the public, that a governing body provide adequate public notice of the meeting, and in certain circumstances, that the governing body provide a period for public comment regarding agenda items. Local government legislative bodies are required to provide an agenda in advance of a meeting. Tenn. Code Ann. §§ 8-44-102, 8-44-103, 2023 Public Chapters 0213 and 0300.

What must be included in the notice of a public meeting?
The Tennessee Open Meetings Act requires governing bodies to provide adequate public notice of their meetings. Tenn. Code Ann. § 8-44-103. Although local government legislative bodies must make the agenda of a public meeting available at least 48 hours prior to a meeting, TOMA does not require the meeting notice to include the contents of a regular meeting. Lewis v. Cleveland Mun. Airport Auth., 289 S.W.3d 808 (Tenn. Ct. App. 2009); 2023 Public Acts 213. Notice of a special-called meeting must include the purpose for which the meeting is being called. Fisher v. Rutherford Cnty. Reg’l Plan. Comm’n, No. M2012-01397-COA-R3CV, 2013 WL 2382300, at *1 (Tenn. Ct. App. May 29, 2013). For meetings requiring a period for public comment, the meeting notice must disclose how a person may indicate their desire to provide public comment at the meeting. 2023 Public Acts 0300.

Can members of a governing body meet via electronic means?
The Tennessee Open Meetings Act generally only allows members of state governing bodies to participate by electronic means. Tenn. Code Ann. § 8-44-108. Such authority does not generally exist for city and county governing bodies. Elected governing bodies of counties, cities, metropolitan governments and school boards may establish an internet forum as provided in Tenn. Code Ann. § 8-44-109. However, such internet forums cannot act as a substitute for decision making by a governing body at a meeting held in accordance with the Tennessee Open Meetings Act.

What happens if there is a violation of the Tennessee Open Meetings Act?
Actions taken at a meeting in violation of the Tennessee Open Meetings Act, other than actions related to public indebtedness, are void. Tenn. Code Ann. § 8-44-105. If a court finds that a violation occurred, the court’s findings regarding a violation must be filed with the meeting minutes and the governing body must file semi-annual reports while under the court’s jurisdiction for one year.

Do we need to publish an agenda before a meeting?
An incorporated city, town, metropolitan government, or county legislative body must publish an agenda forty-eight (48) hours prior to a meeting. The agenda must reasonably describe what will be deliberated or acted upon at the meeting. The agenda can be published on the legislative body’s website.

The legislative body can still discuss or act on items that are not on the agenda, as long as the body follows all of its bylaws, rules, and procedures. If a body is found to violate the requirement to publish an agenda, a court may find the body to have violated the Tennessee Open Meetings Act.

Here are a few more fun facts to know!

Can officials text and email each other on a matter that leads to a discussion?
Telephone calls, emails, text messages and all other electronic communications exchanged between multiple members of a governing body related to a public business are generally prohibited.

Can the board take a secret ballot vote?
At meetings, all votes must be public. Secret ballots are not permitted.

What is an executive session?
Multiple members of a governing body can go into a closed gathering with the city/town attorney when:

The discussion concerns a pending lawsuit; The governing body is a named party; and The members of the governing body provide facts about the lawsuit to the city/town attorney and the city/town attorney provides the members legal advice based upon the facts presented.

However, the governing body must deliberate towards and/or make decisions related to the subject of the executive session in an adequately noticed public meeting.

What is the Media’s Role in Opening Meetings?
The Media serves as the watchdogs. It has become increasingly imperative that the media serves as the watchdogs of government. An independent news media uses its watchdog role to investigate and report on government overreach and wrongdoing and hold those in power accountable for their actions.

In this way, watchdog journalism protects democracy on a day-to-day basis, calling out bad behavior when it happens. And by informing citizens, it also helps to protect the integrity of elections and the health of democracy in the long term. The very presence of watchdog journalism is also a sign of a healthy democracy. When journalists are free to scrutinize politicians and businesses, and free to publish their findings without influence or fear of reprisal, that means the country has a strong and independent media. And it’s no coincidence that authoritarian-minded leaders make investigative journalism a top target once in power.

The key to watchdog work, shining a light on government and holding public officials accountable. Preventative measures to keep the watchdogs at bay comes down to a single word, transparency.