Adequate public notice of meetings

(a) Notice of Regular Meetings.  Any such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution shall give adequate public notice of such meeting.

(b) Notice of Special Meetings.  Any such governmental body which holds a meeting not previously scheduled by statute, ordinance, or resolution, or for which notice is not already provided by law, shall give adequate public notice of such meeting.

(c)  The notice requirements of this part are in addition to, and not in substitution of, any other notice required by law.

T.C.A. § 8-44-103

The law requires any governmental body that holds a regular meeting or a special called meeting to give “adequate public notice” of the meeting.

Regular meetings are those scheduled or set by statute, local ordinance or resolutions, or by city charters. For example, a school board might meet the second Tuesday of each month. Governing bodies do not always post their agenda with the notice of their meetings, but a citizens can request an agenda, which is a public record available for inspection as soon as it’s created.

The law about agendas is different for special called meetings. The state Office of Open Records Counsel explained in a 2012 advisory opinion:

Unlike other states where an agenda is a required component of the public notices for meetings, Tennessee’s Act does not require an agenda to be published. However, despite the fact that the Act does not require that governing bodies have an agenda published, other statutory provisions and case law have done so, but only as it relates to special called meetings. County legislative bodies, cities operating under a City Manager-Commission charter, cities operating under a modified City Manager-Council charter, and public school boards operating under a modified City Manager-Council charter all have specific statutory provisions that restrict the issues that can be brought up at a special called meeting to those items that are specifically set out in the notice. (See T.C.A. 5-5-105, 6-20-208, 6-32-102, and 6-36-106.)  

Office of Open Records Counsel, Advisory Opinion 12-01 “Amendment of Meeting Agendas during Meetings”

Public notice of meetings must ‘fairly inform the public’

The case that started the legal journey in which the courts developed principles for determining what makes a notice adequate came just two months after passage of the Tennessee Open Meetings Act in 1974.

In Memphis Publishing v. City of Memphis (1974), the city got a local chancellor to rule the law unconstitutional because, the city complained, the term was so vague officials had no way of knowing how to comply.

The Tennessee Supreme Court rejected the argument and reversed the local judge’s decision. The Court explained:

We think it is impossible to formulate a general rule in regard to what the phrase “adequate public notice” means. However, we agree with the Chancellor that adequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public. In the abstract this is a vague concept. But when applied in a real situation or a given set of facts and circumstances, we doubt that such a variation of opinion would exist as to promote confusion.

Tennessee Supreme Court, Memphis Publishing v. City of Memphis, 1974

Court: Notices of special meetings need enough description for public to know what is to be discussed

The state Court of Appeals added another element to the adequate notice formula in Neese v. Paris Special School District (1990). In Neese, the court said a school board violated the law when it failed to include an issue “of pervasive importance” in its public notice of an out-of-state board retreat where it discussed a school clustering plan .

Testimony in the court record showed the board members spent hours at the retreat at Ken-Lake State Resort Park in Aurora, Kentucky, discussing plans to rezone children in three K-6 schools. The court found that the school board’s meeting notice should have informed the public of its plan to discuss the rezoning proposal “regardless of whether any decision was actually made at the retreat.”

We are directed by the Supreme Court to examine the totality of the circumstances in order to determine whether notice was proper. The issue of clustering was of pervasive importance. Adopting Dr. Vick’s clustering plan is arguably the most important action taken by the Board in many years. The record shows, by means of newspaper articles, that this was a very emotional issue for the citizens who have children in the PSSD. In its brief the PSSD states that Tennessee law does not require notice of a public meeting to include an agenda. We believe, however, that under these circumstances, the public had a right to be informed that the issue of clustering would be extensively discussed at the Ken-Lake meeting. If the major issues discussed at the meeting were actually those stated in the newspaper article quoted above, perhaps there would be no interest in traveling to Kentucky for a two-day meeting. On the other hand, if the general public was aware that the major issue was not as reported in the newspaper, but rather was the issue of clustering, there would likely be more interest in attending. Certainly “adequate public notice under the circumstances” is not met by misleading notice. We do not suggest that any party intentionally misled the public with regard to notice, but we do believe that the notice was insufficient under the circumstances presented in the record before this Court. Notices of all special meetings must include all items on the agenda and enough description for the public to know what is being discussed.

Tennessee Court of Appeals, Neese v. Paris Special School District, 1990

Court uses three-part test to judge adequate public notice

A state Court of Appeals fashioned a “three-pronged test” for special called meeting notices in Englewood Citizens for Alternate B v. The Town of Englewood (1999). 

The Englewood case dealt with a town commission meeting in which the meeting notice was hung on the walls of a bank, at City Hall, and the post office, and faxed to the local newspaper — all within 48 hours of the meeting.

The meeting was to choose a route for a proposed highway bypass in the East Tennessee town, but the posted agenda did not say that. It only said: “1. Letter to State concerning HWY 411”. 

The Court voided the action of the town commission and provided criteria to judge future notices of special called meetings.

  • Notice must be posted in a location where a member of the community can become aware of such notice. 
  • The contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken. 
  • The notice must be posted at a time sufficiently in advance of the actual meeting in order to give citizens both an opportunity to become aware of and to attend the meeting. 

The Court ruled the Town council’s actual notice was “misleading” to the public and that 48 hours notice before a meeting was “not sufficient enough to fairly inform the public under these circumstances.” 

“Without meeting all three of these requirements, we fail to see how the Town of Englewood could provide adequate public notice for the purposes of a special meeting,” the court said.

Methods for notice

The method for posting a meeting notice is not addressed in the sunshine law, but other statutes require that some public notices, including for regular and special meetings, be published in newspapers of general circulation. Some examples: public hearings for zoning, budgets, and other potentially controversial items.

One statute requires governing bodies to disclose in a public notice advertisement that it is giving money to a particular charitable organization.  It must name the group.

An advertisement is the only way to guarantee publication on a particular day.  Legal opinions in recent years have said the method of notices must be consistent so the public knows where to find them. 

Efforts began in the legislature in 2008 to allow local governments to satisfy the publication requirements by posting notices on local government websites. The state Office of Open Records Counsel has cautioned state and local bodies against that.

In a report to the General Assembly in 2011, Elisha Hodge, then the state open records counsel, reported getting queries on the subject. One asked: “Is it sufficient for a county library board to post notices of its meetings on the library website?”

Her response (though not in a formal, published advisory opinion): “Assuming that the library board is subject to the open meetings act, no, it is not sufficient for the only notice of the meetings to be posted on a website.”

In another, she reported she was asked: “Is it sufficient for the notices for state level board meetings to only be posted on a state website? Answer: “No, because everyone does not have the ability to access a computer and access the website.”

Can a citizen get the written agenda before meeting?

A recurring problem for citizens is finding out in advance what is on the governing body’s meeting agenda.

There is not specific requirement in the open meetings law that requires a governing body to publicly post the agenda, though some do post the agenda on their website or in a local newspaper. However, if the agenda is not posted publicly, it is still obtainable under the Tennessee Public Records Act. The meeting materials that are sent to members of the governing body, often referred to as the “meeting packet” is also a public record, obtainable under the law.

Additionally, some local governments have initiated their own rules that call for posting an agenda to their website or making it easily available in other ways to the public before meetings.