There are far fewer exceptions to the state’s sunshine law than the Tennessee Public Records Act. In passing the open meetings law in 1974, the legislature included only two — for inspection tours by governing bodies and “chance meetings.”
It assumed no deliberations would occur during either.
Later, rules about closing or conducting closed meetings were added either through judicial opinions or in sections of state law that govern particular government bodies. Some require public notice of intent to close a meeting and some require public votes to close meetings.
“Chance meetings” — incidental or unplanned encounters by two or more members — are not considered violations unless they evolve into or are used “to decide or deliberate public business.”
The Court of Appeals in Neese v. Paris School District (1990) adopted the Black’s Law Dictionary definition of what it means to deliberate: “to examine and consult in order to form an opinion…. to weigh arguments for and against a proposed course of action.” (Black’s Law Dictionary, 5th edition, 1979)
Later, in Johnston v. Metro Gov’t of Nashville (2009), the Court noted the more current 8th edition of Black’s Law Dictionary published in 2004 defined “deliberation” as “[t]he act of carefully considering issues and options before making a decision or taking some action.”
Most violations that have led to lawsuits have been when individual members of a governing body worked privately one on one to get other members to make a decision before a meeting, or when members have met as a group without giving any public notice.
Some violations have occurred when the public agenda did not include items that were going to be discussed or decided upon, but were taken up anyway without any public notice.
One of the earliest cases, Jackson v. Hensley (1986), the Court of Appeals found that a Roane County commissioner’s act of lobbying other commissioners for their votes to the office of county Trustee did not violate the law because once the commissioner was nominated he ceased to be a voting member of the body. There was no evidence any other two members discussed the candidate before the vote.
But in the 1990 case of State of Tennessee ex rel. Matthews v. Shelby County Board of Commissioners, a Court of Appeals panel found commissioners had violated the law when three of its 11 members took it upon themselves to recruit a candidate for a commission vacancy and lobbied other commissioners in a series of private conversations.
In that case, the Court of Appeals noted that the legislature did not intend to overly restrict interaction between members of governing bodies, quoting T.C.A. 8-44-102(c): “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.”
But it noted the General Assembly had recognized that the “chance meeting” exemption could be a loophole and be used “to evade the literal ‘quorum’ and ‘meeting’ requirements of the Act.”
To prevent that, the court said, the legislature closed the loophole in the next sentence: “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.”