Does private dinner between two governing bodies violate TN’s Sunshine Law?

Kingsport and Johnson City boards plan secret dinner to get to know each other, but may discuss annexations, economic development and even a regional park.

Investigative reporter Nate Morabito with WJHL in Johnson City pressed government officials in a May 16 story about a private dinner meeting planned between the entire Johnson City Commission and the Kingsport Board of Mayor and Alderman.

Does it violate the Sunshine Law, which says all meetings of governing bodies should be open to the public?

Morabito digs into that question and quotes Tennessee Coalition for Open Government pointing out how difficult it would be to have an entire city commission together and control discussion of public business in a way that does not violate the Sunshine Law.

The key word is “deliberate.” Governing bodies can’t deliberate  — weigh the pros and cons of an issue with each other, consult with each other in order to form an opinion – in private meetings. The Open Meetings Act says that such discussion of public business must be done in public, with the public having a right to be there.

The Kingsport city manager insists there is no formal agenda, but when pressed by Morabito, he admits they might discuss topics like annexations, economic development and even a regional park.

Neither of the governing bodies will tell the reporter the date of the dinner, and there will be no notice to the public about it either.

Click here to see Morabito’s story.

The city officials reference a June 6, 2012, Attorney  General’s Opinion that they say gives them the go-ahead for the meeting. The opinion looks at what kinds of discussions elected officials of governing bodies can have at “chance meetings” or “informal assemblages” that take place outside the public’s eye.

In that opinion, Attorney General Robert Cooper Jr. notes that the law and court opinions make clear that informal meetings or communications should not be used to circumvent the spirit of the Open Meetings Act. (“The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.”)

Cooper quotes a 2009 ruling from the Court of Appeals in Johnston vs Metropolitan Government of Nashville and Davidson County in which the court considered whether email between council members were used to “deliberate public business” in violation of the act.

The court ruled that two sets of email – one disseminating information from affected residents stating their position and the other discussing strategy on gaining passage of the legislation – did not constitute deliberation, Cooper writes.

The third set of emails, however, did:

“The third category, however, included emails between Council members in which they were clearly weighing arguments for and against the proposed legislation. These emails, most of which were copied to all Council members, were found to ‘mirror the type of debate and reciprocal attempts at persuasion that would be expected to take place at a Council meeting, in the presence of the public and the Council as a whole.’ Id. Accordingly, the Court of Appeals found that these emails were ‘electronic communications . . . used to . . . deliberate public business in circumvention of the spirit or requirements’ of the Open Meetings Act. Id.

“In light of the above authority, the private discussion of public business at a meal by any number of members of a governing body would certainly present the potential issue of whether a chance meeting, or informal assemblage, was used to decide or deliberate public business in circumvention of the Open Meetings Act. Whether a violation occurred would depend upon what was said and what transpired during the meeting. Thus, while the case law does not lend itself to hard and fast rules because the decisions are so fact dependent, some cautious advice readily appears. While two or more members may share a meal together in which public business is discussed, such discussion should not constitute deliberations, which term has been defined to mean to ‘examine and consult in order to form an opinion’ or to ‘weigh arguments for and against a proposed course of action.’ Johnston v. Metropolitan Government, 320 S.W.3d at 311.”

 The topic of what public business elected officials can discuss outside of a meeting open to the public has been a contentious issue. 

The particular question that prompted the 2012 Attorney General’s opinion came from state Rep. Tony Shipley, R-Kingsport and was about the very issue of such a private dinner meeting: “Can members of a county or city legislative body share a meal together and casually discuss county or city business and/or issues before their respective legislative bodies under the Open Meetings Act, if the discussion is for informative purposes only and no decisions are reached or attempts made to obtain commitments?”

Elected officials and citizens should note that Cooper’s opinion did not give a “yes” or “no” to Shipley’s question. It did lay out additional guidance as to what the courts consider deliberations, and issued caution.

One thought on “Does private dinner between two governing bodies violate TN’s Sunshine Law?

  1. Steve Michael

    The town of Farragut outside Knoxville produced a manual for elected and appointed officials that instructs them to conduct sensitive discussions via telephone rather than email to avoid a paper trail.

    Reply

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