2008 Open Meetings Act: Sunshine Law Update

The Tennessee Legislature recently renewed its focus on Sunshine Laws. It has been particularly prolific in amending the Public Records Act, Tenn. Code Ann.  § 10-7-503 et seq. The Special Joint Committee to Study Open Government Laws[1] gave much consideration to proposed changes to the Open Meetings Act, Tenn. Code Ann.  § 8-44-101 et seq. ("Act"), however, members essentially deadlocked and the legislature took only limited action in that regard. The following is an update on the Open Meetings Act. (An overview of recent changes to the Public Records Act including an update on the case law is set forth in a companion article.)

1. New Provision, Tenn. Code Ann.  § 68-11-238, allowing Hospital Boards Subject to Open Meetings Act to Develop Marketing Strategies and Strategic Plans and to Review and Discuss Feasibility Studies and other Records in Closed Sessions, provided Adoption of Specific Strategy or Plan is in Open Meeting.

The legislature enacted 2008 Pub. L. Ch. 917, effective May 14, 2008 pertaining to hospitals subject to the state's Sunshine Law. Its provisions, codified at Tenn. Code Ann.  § 68-11-238, allow boards of public hospitals and other hospital boards subject to the Open Meetings Act to hold closed meetings to "discuss and develop marketing strategies and strategic plans". Tenn. Code Ann.  § 68-11-238 (a). (Emphasis added.) However, Tenn. Code Ann.  § 68-11-238 (b)(3) provides that "no other business other than the business described in subsection (a) shall be discussed during the closed meeting."

This enactment also provides at Tenn. Code Ann.  § 68-11-238 (a) that "the records addressing marketing strategies and strategic plans, including feasibility studies, may be treated as confidential" by such hospitals, which amounts to a limited exception to the Public Records Act. However, "[s]uch records shall be available for public inspection at least seven days before any vote to adopt such strategy." Id. Moreover, Tenn. Code Ann.  § 68-11-238 (a) provides that any "[a]ction by the board of the hospital adopting a specific strategy or plan shall be subject to the open meetings laws codified in title 8, chapter 44," and all records addressing the hospital's marketing strategies, strategic plans, and the feasibility studies "that were considered in the adoption of the specific strategy or plan" shall be deemed "public records" available to any citizen of Tennessee no less than seven (7) days before any vote to adopt such strategy. (Emphasis added.) Therefore, that records and feasibility studies addressing or relating to specific marketing strategies and strategic plans that were reviewed but not considered for adoption by such hospitals boards may remain confidential.

2. Attorney-client exception under Open Meetings Act

The newly enacted provisions of Tenn. Code Ann.  § 68-11-238 set forth a detailed procedure that must be followed before a hospital board may go into closed session to discuss and develop marketing strategies and strategic plans. Although the legislature was not focusing on other circumstances permitted under the Tennessee Open Meetings Act where governing bodies[2] may go into executive session, the procedural steps set forth in Tenn. Code Ann.  § 68-11-238 (b) are instructive for other public bodies, in addition to public hospital boards, in those limited circumstances.

Unlike the Public Records Act which has numerous express and statutory exceptions otherwise provided by state law,[3] the Open Meetings Act provides for no exceptions[4] save "as provided by the Constitution of Tennessee." Tenn. Code Ann.  § 8-44-102(a). The Tennessee Supreme Court held in Smith County Educ. Ass'n v. Anderson, 676 S.W.2d 328, 335 (Tenn. 1984), however, that because the attorney-client privilege has constitutional underpinnings, "discussions between a public body and its attorney concerning pending litigation are not subject to the Open Meetings Act." (Emphasis added.) This holding was apparently extended in Van Hooser v. Warren County Bd. of Educ., 807 S.W.2d 230, 237 (Tenn. 1991) where the court suggested that the attorney-client exception to the Open Meetings Act would apply when "a pending controversy . . . was likely to result in litigation . . ." although it found, under the circumstances of that case, there was a violation of the Open Meetings Act. (Emphasis added.)

In circumstances where a hospital board is permitted to go into closed session to discuss and develop marketing strategies and strategic plans, Tenn. Code Ann.  § 68-11-238 (b) requires the following conditions and specific procedure be followed: 1.) A quorum must first convene in open session; 2.) The presiding officer shall cite or explain the specific legal authority for closing the meeting to the public; 3.) The board shall vote by roll call on whether closing the meeting to the public is necessary; 4.) The presiding officer shall explain to the members of the board and the public that no other business other than the business stated as the basis for closing the meeting shall be discussed during the closed meeting.

Notwithstanding that the provisions of Tenn. Code Ann.  § 68-11-238 (b) are limited to hospital boards subject to the Act, and even though the holdings in Smith County Educ. Ass'n v. Anderson and Van Hooser v. Warren County Bd. of Educ. do not detail any specific procedure that must be followed for governing bodies to have private attorney-client consultations, it would behoove any legislative or other governing body to strictly follow these four specific procedural steps before going into closed session to discuss pending litigation or a pending controversy likely to result in litigation with counsel.

3. Knox County Chancery open meetings decision in McElroy v. Strickland

McElroy v. Strickland, et. al., (Knox County Chancery, No. 168933-2) (Memorandum Opinion and Order, October 5, 2007)[5] is the much celebrated decision involving "[t]he . . . [Knox] [C]ounty commission meeting of January 31, 2007, at which interim replacements for the twelve term-limited officers were appointed . . .." State ex rel. DeSelm v. Jordan ("DeSelm I"), 2008 WL 3896763 at *4 (Tenn. Ct. App. August 22, 2008). The date "has become popularly known as 'Black Wednesday,' and those appointments were eventually invalidated . . . as being in violation of the Open Meetings Act, Tenn. Code Ann.  § 8-44-101, et seq. (Supp.2007)." DeSelm I at *4.

The chancery court in McElroy, citing,[6] 588 S.W.2d 534, 540 (Tenn. 1979), states at n.3 of its opinion and order: "It has been said that statutes must be construed 'with the saving grace of common sense'. ... [A]bsurdity should be avoided; ... the courts should not place upon a statute a construction which would work to the prejudice of the public interest and a construction which impairs, frustrates or defeats the object of a statute should be avoided." (Emphasis added.)

Applying these rules of statutory construction, the chancery court held at page 8 of its decision:

[I]t is inescapable, after applying statutory construction and the plain and ordinary meaning to the words contained therein, that Tenn. Code Ann.  § 8-44-102(c) does contain a "two or more" trigger.

(Emphasis added.)

However, it is, perhaps, not so plainly evident from the language of the statute that the chancery court conclusion in McElroy is "inescapable".

As stated in Mid-South Pub. Co. v. Tennessee State Univ. & Comm. College System Bd. of Regents, 1990 WL 207410 (No. 01-A-01-9002CH00074) (Tenn. Ct. App. Dec. 19, 1990), the task is to apply fundamental principles of statutory construction to determine, first, what constitutes a "governing body":

The only purpose of the rules of construction is to ascertain the General Assembly's intent. Dorrier v. Dark, 540 S.W.2d 658, 659 (Tenn.1976); Anderson v. Outland, 210 Tenn. 526, 532, 360 S.W.2d 44, 47 (1962). The rules of construction cannot supply legislative intent where it is missing, and no single rule is inherently more preferable or controlling than the others. All applicable rules of construction should be brought to bear in order to elucidate a statute's meaning. O.H. May Co. v. Anderson, 156 Tenn. 216, 219-20, 300 S.W. 12, 14 (1927).
Tennessee's Sunshine Law has been found to be a remedial statute that should be construed liberally. Dorrier v. Dark, 537 S.W.2d 888, 891 (Tenn.1976); Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511, 513 (Tenn.1974). But whether we construe it liberally or strictly, our role remains to carry out the General Assembly's purpose. . . .
The liberal construction rule applicable to remedial statutes has reasonable bounds beyond which the courts should not go. . . . It does not provide the courts a license to disregard the plain meaning of a statute. . . . Nor does it empower courts to extend a statute's application to matters not contemplated by the legislature when the act was passed. . . .
The Sunshine Law states succinctly that . . . it applies only to "meetings" of "governing bodies." Our task in this case is to determine what the General Assembly meant when it limited the application of the Sunshine Law to meetings of governing bodies. Tenn. Code Ann.  §8-44-102(b)(1) defines a "governing body"... .
Mid-South Pub. Co. v. Tennessee State Univ. & Comm. College System Bd. of Regents, 1990 WL 207410 at *2-3. (Emphasis added).

McElroy may have overly emphasized the phase "two or more" without giving sufficient weight to the phrase "with the authority to make decisions for or recommendations to a public body on policy or administration . . ." in Tenn. Code Ann.  § 8-44-102(b)(1)(A) defining "governing body". (Emphasis added.) The latter phrase is of equal importance and should not be glossed over. Without more definitive legislative guidance, a violation of the Open Meetings Act would appear to require communication among a sufficient number of members of the public body such that they have actual "authority", potential "authority" or de facto "authority" to formulate policy on public business.

The black letter definition of "governing body" may be instructive. Black's Law Dictionary (8th ed. 2004) defines "governing body" as follows:

Governing body. 1. GOVERNMENT (2). 2. A group of ... officers or persons having ultimate control. [Emphasis added.]

While the Supreme Court in Dorrier did not attempt to resolve every conceivable ambiguity with regard to the scope and application of the Open Meetings Act, in declining to clear up all ambiguities the court actually raises questions as to whether the existence of a quorum is required for an assemblage of members of a public body to be deemed a "governing body". The decision states:

In addition, it is our opinion that members of public bodies will face very few situations, if any, in which they cannot be aware of the existence or non-existence of a quorum and whether or not they are in the course of deliberation toward a decision on policy or administration affecting the conduct of the business of the people.
Dorrier v. Dark, 537 S.W.2d at 893. (Emphasis added.)

At least since the decision in State ex rel. Matthews, the conventional wisdom and prevailing view certainly has been that the so-called "loophole" closer of Tenn. Code Ann.  § 8-44-102(c) prohibits any discussions whatsoever between "two or more" members of a public body concerning any matter that may come before the body. But apart from the decision in McElroy, the case law does not expressly so hold. "[T]he legislature's loophole closer . . . recognizes public officials could evade the literal 'quorum' and 'meeting' requirements of the Act". Littleton v. City of Kingston, 1990 WL 198240 at *1 (C/A No. 166) (Tenn. Ct. App. Dec. 10, 1990), citing, State ex rel. Matthews v. Shelby County Bd. of Commissioners, supra.

Additionally, the conventional wisdom and prevailing view is largely based upon the opinion in Op. Tenn. Atty. Gen. No. 88-169 (Sept. 19, 1988), 1988 WL 410311 at *4, wherein the Tennessee Attorney General wisely offered the following prudent advice:

It is difficult to formulate from these cases any definitive answer to the question of how many members of a governing body can privately discuss public business, and under what circumstances, without violating the Open Meetings Act. ... Although the case law does not lend itself to hard and fast rules because the decisions are so fact dependent, some cautious advice readily appears. 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.
(Emphasis added.)

However, the phrase "which consists of two or more members" " "comma" " in Tenn. Code Ann.  § 8-44-102(b)(1)(A) (emphasis added), arguably means to a person of common intelligence that the "public body" must have at least two members. The phrase is not an adjective clause describing or delimiting what is a "governing body", but relates to what constitutes a "public body." In other words, an "individual" is not a "public body."[7] The actual text of the Open Meetings Act simply does not state that a "governing body" is assembled and is clothed with "authority" "to make decisions for or recommendations to a public body on policy or administration" whenever there is a gathering, assemblage or communication between two members of a public body.

The mere fact that two members of a public body, whether members of the majority or minority, meet and discuss privately, therefore, should not be sufficient, per se, to find a violation of the Open Meetings Act. In the absence of a clear legislative formulation, a simplistic "bright-line" test based strictly on a narrow construction of the phrase "which consists of two or more members" " "comma" " in Tenn. Code Ann.  § 8-44-102(b)(1)(A) (emphasis added) gives the minority members of a public body more rights, freedoms and protections than the majority. That imbalance may abridge the free of speech of majority members on the body and deny them equal protection.

Since there is only one real remedy under the Open Meetings Act, which is to void the action[8] taken by the majority " which may be exactly what the minority wants but cannot achieve politically " the minority members of a legislative body, in effect, have the right to privately confer about public business basically unfettered by the consequences, as the Open Meetings Act is generally interpreted.

Given these complexities, the members of the Special Joint Committee to Study Open Government Laws deadlocked.[9] Several proposals were considered that would have expressed a clear legislative intent as to whether a quorum, "two or more" or some other threshold such as three or four members is required to constitute a "meeting" under the Open Meetings Act.[10] However, none of these proposals were brought to a vote on the floor of the General Assembly.

Consequently, while it is not controlling throughout the state, members of legislative and other public bodies should take Chancellor Fansler's ruling in McElroy as authoritative and adhere to the "prudent advice" of the Attorney General in Op. No. 88-169, until the legislature or the Supreme Court clearly delineates whether "two or more", a quorum, or any "bright line" test is applied under the Open Meetings Act to determine whether a "meeting" of a governing body has transpired. As for members of the Knox County Commission, the chancery court in McElroy entered an injunction against further violations of the Sunshine Law.

4. Tenn. Code Ann.  § 8-44-110. Development of education program about open meetings laws

Newly enacted Tenn. Code Ann.  § 8-44-110(a) provides that the Municipal Technical Advisory Service (MTAS) and the County Technical Assistance Service (CTAS) shall develop a program for educating public officials about the open meetings laws and how to remain in compliance with such laws. Moreover, subdivision (e) of the statute provides that the Office of Open Records Counsel (OORC)[11] established in Title 8, Chapter 4, shall also establish educational programs and materials regarding open meetings laws in Tennessee, to be made available to the public and to public officials. Unquestionably, such educational materials will be consistent with McElroy and the Tennessee Attorney General's "prudent 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. No. 88-169. (Emphasis added.)

Conclusion

The Special Joint Committee to Study Open Government Laws or another legislative committee should continue efforts to ensure transparency in government. However, the legislature needs to break through the previous deadlock and bring to a vote on the floor of the general assembly a clearly written bill that unequivocally settles the question whether "two or more", or some other threshold, is required to constitute a "meeting" of a "governing body" under the Open Meetings Act.

Notes

1. Created by Chapter 887 of the Public Acts of 2006. See, Tenn. Code Ann.  § 8-4-604 (a)(1)(B). For a list of members of the special joint committee see Knox News Sentinel (November 14, 2007): http://www.knoxnews.com/news/2007/nov/14/list-open-government-joint-stud....

2. "'Governing body' means: (A) The members of any public body ... with the authority to make decisions for or recommendations to a public body on policy or administration ... ." Tenn. Code Ann.  § 8-44-102(b)(1). (Emphasis added).

3. See, Willis, Craig E., "The Tennessee Public Records Act and Statutory Exceptions 'Otherwise Provided by State Law'", 43 Tenn. B.J. 20 (Feb. 2007).

4. However, specific statutes may permit certain bodies to hold closed meetings. See, e.g., Tenn. Code Ann.  § 17-4-109 (d) (after one (1) public hearing, the judicial selection commission may hold such additional "private or public" meetings as it deems necessary). Compare, Tenn. Code Ann.  § 8-44-108 (b)(1) (boards, agencies and commissions of state government are permitted, but are "not required to, allow participation by electronic or other means of communication . . . in connection with any meeting . . . provided, that a physical quorum is present at the location . . .").

5. Available at: http://www.knoxcounty.org/decision/decision.pdf.

6. The chancery court in McElroy also cites, inter alia: Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976); 540 S.W. 2d 658 (Tenn. 1976) (den. pet. for reh.); State, on Relation of Matthews v. Shelby County Bd. of Com'rs, 1990 WL 29276, 18 Media L. Rep. 1440 (Tenn. Ct. App. March 21, 1990); Littleton v. City of Kingston, 1990 WL 198240 (Tenn. Ct. App. Dec. 10, 1990); and Souder v. Health Partners Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998).

State, on Relation of Matthews v. Shelby County Bd. of Com'rs, has been cited approvingly as authority for the proposition that the Open Meetings Act "is to be construed most favorably to the public and is all encompassing and applies to every meeting of a governing body except where the statute, on its face, excludes its application." Souder v. Health Partners Inc., 997 S.W.2d 140, 145 (Tenn. Ct. App. 1998), quoting, Matthews, 1990 WL 29276 at *4. Reversing the chancery court ruling dismissing the complaint under the Open Meetings Act, the appellate court in Matthews distinguished Jackson v. Hensley, 715 S.W.2d 605 (Tenn. Ct. App. 1986) as "not applicable to the facts as alleged in the amended complaint . . .." Matthews at *6. First, the court in Matthews observed that in the case of Jackson v. Hensley, the meeting of the commission to appoint an interim trustee occurred one week after Hensley had resigned. Id. Moreover, the appellate court noted:

The key factor that existed in Jackson which is absent in the instant case is that there was no allegation or proof that those commissioners who ultimately voted to appoint Hensley had deliberated or decided among themselves prior to the public meeting on Hensley as the candidate to be elected. The Court considered Hensley to be a private citizen seeking to advance his own candidacy with other Commissioners.

Matthews 1990 WL 29276 at *7. (Emphasis added.)

Looking only to the allegations of the complaint to determine whether a violation of the Open Meetings Act was alleged, the court in Matthews noted it averred as follows:

... Commissioners Bailey, Smith and Rout contacted by phone and/or met personally with most of the other commissioners to line up votes for Kirk prior to the June 12 meeting. Prior to the June 12 meeting, Commission Chairman Gates promised Commissioner Rout that if Kirk's name came to her, as the last voter, with five votes, she would make it six. As a result of these deliberations prior to the public meeting on June 12, defendant Kirk became the "consensus candidate" who could win the majority vote of the Commission members.
On June 12, after having previously deliberated, discussed and decided on the appointment of Kirk in private meetings and without notice to the public, Commissioners Bailey, Smith, Rout, Perkins, Williams, and Gates voted for and elected Kirk to fill the vacancy. Since his appointment on June 12, 1989, Kirk has voted on issues and served as the County Commissioner for District 3, Position 2.
That the defendant, Shelby County Commissioners, by agreeing to the selection of Cleo Kirk without public notice prior to the public meeting on June 12 did not afford the residents of District 3 and the public at large an opportunity to be involved in any meaningful way in the selection process to fill the vacancy on the County Commission, which action was consummated in violation of the Tennessee Open Meeting Law."
Id., 1990 WL 29276 at *3. (Emphasis added.)

In view of allegations of the complaint that there had been deliberations prior to the public meeting among at least three (Bailey, Smith and Rout), and certainly a quorum of the commissioners "who met personally with most of the other commissioners to line up votes," the court in Matthews held that the complaint was sufficient to state a claim under the Open Meetings Act.


7. See, e.g., Mid-South Pub. Co. v. Tennessee State Univ. & Comm. College System Bd. of Regents, 1990 WL 207410 at *3 (No. No. 01-A-01-9002CH00074) (Tenn. Ct. App. Dec. 19, 1990) ("... the General Assembly did not contemplate that the Sunshine Law would apply to meetings between individual public officials and their advisors or advisory committees") (emphasis added); Op. Tenn. Atty. Gen. No. 06-060 (April 5, 2006) (". . . municipality's internal auditor is an individual public official and is excluded from the definition of a public body. Accordingly, the Open Meetings Act would not apply to such an individual") (emphasis added); Op. Tenn. Atty. Gen. No. 99-144 (July 30, 1999) ("Meetings between a single member of the Board [of Mayor and Aldermen] and a consultant are not meetings of a governing body under the Open Meetings Act. So long as the members do not use the meetings with the consultant to deliberate toward or to make a decision indirectly, these meetings are not meetings of a governing body subject to the Open Meetings Act") (emphasis added); Op. Tenn. Atty. Gen. No. 96-040 (March 12, 1996) ("Tennessee Court of Appeals has held that the definition of a 'public body' excludes individual public officials and that the Open Meetings Act does not apply to committees created by such an individual . . .") (emphasis added); Op. Tenn. Atty. Gen. No. 80-277 (June 2, 1980) ("The Commissioner of Revenue, acting alone, is not a 'governing body' and his meetings are not subject to the Open Meetings Law") (emphasis added).

8. Tenn. Code Ann.  § 8-44-105.

9. A Knox News Sentinel editorial (May 5, 2008) stated that "[p]ossible changes in the Open Meetings Act were scrapped for now because the two sides [local government associations and open government advocates] remained too far apart on some issues." http://www.knoxnews.com/news/2008/may/05/senate-bill-best-for-state-open....

10. See, Tom Humphrey, "Open-records changes offered"Vote still to come on proposals for meetings" http://www.knoxnews.com/news/2007/nov/28/open-records-changes-offered/ Knox News Sentinel (November 28, 2007):

The subcommittee [of the Special Joint Committee to Study Open Government Laws] . . . voted to recommend . . . that the standard be changed to four officials or a majority of the body, whichever is less. On Tuesday, the full committee voted to cut that down to three officials or a majority, whichever is less.

The three-member standard was proposed by Sen. Joe Haynes, D-Nashville, who characterized it as a legitimate compromise. After lengthy debate, it wound up with broad support.

Among committee members backing the three-member standard were Richard Hollow, who served as attorney for News Sentinel Editor Jack McElroy in a lawsuit [McElroy v. Strickland] that resulted in the Knox County Commission being held in violation of the sunshine law, and Knox County Commissioner Mike Hammond . . ..

After adopting the three-member standard, however, the panel engaged in long and inconclusive debate over adopting language to prevent officeholders from circumventing the law through phone calls, e-mail messages or small gatherings that involve deliberations toward a decision that should be made in public.

Rep. Ulysses Jones, D-Memphis, and Nashville attorney George Barrett, who represents city governments on the panel, contended that language proposed by Hollow and others would undercut the three-member standard and effectively prohibit a discussion between two members.

11. See OORC website: http://comptroller.state.tn.us/openrecords/.


Craig Willis CRAIG E. WILLIS is assistant county attorney in the Shelby County Attorney’s Office in Memphis. Prior to that he was in private practice in Cleveland, Ohio. He received his law degree from the University of Michigan School of Law, Ann Arbor, and his undergraduate degree from Princeton University.