Chancellor refuses to find Nashville school board’s closed-door meeting with attorney allowed under law

Davidson County Chancellor Anne Martin on Wednesday allowed a claim of an Open Meetings violation against the Metro Nashville School Board to go forward, including depositions of school board members and other attendees of the closed meeting.

Davidson County Chancellor Anne Martin: “… the public interest is best served by enforcing the Open Meetings Act, the
purpose of which is to ensure that the public’s business is conducted in the public. “

Martin, in her order in Knowledge Academies v. Metropolitan Nashville Public Schools and the Metropolitan Nashville Public Schools Board of Education, granted a temporary injunction to the charter school operator who claimed that the school board’s closed-door meeting on June 11 violated the Open Meetings Act.

Martin refused to find that the school board’s meeting with its attorney in a closed-door session was allowed under the Open Meetings Act, stating that there was no evidence that there was pending litigation or threatened litigation which would trigger the exception to the open meetings law.

The school board met with its attorney and its charter schools director in a closed session on June 11. After the session, a member of the school board, Fran Bush, announced in the school board’s open session that she “would like to, uh, give notice, give a notice on the next agenda to take action to revoke Knowledge Academies’ charter.”

In addition, the next day, Knowledge Academies received communication from Dennis Queen, the school system’s charter school officer, referencing a Board “motion” and the possibility of closing the charter school. Queen also informed Knowledge Academies that MNPS would be sending out communications about a possible closure to school staff and school families.

Knowledge Academies claimed closed door meeting violated Open Meetings Act

Knowledge Academies filed a lawsuit, contending violations of the Open Meetings Act and breach of contract, and asked for a temporary restraining order. It claimed deliberations by board members or decisions appear to have occurred in the closed-door meeting in violation of the law. Martin granted the temporary restraining order that among other things prevented the letters from being sent. A hearing was held on Tuesday to consider converting the temporary restraining order into a temporary injunction.

Metro’s attorney, Lora Barkenbus Fox, argued in Chancery Court that the closed door session of the school board was not a “meeting” under the Open Meetings Act, and even if it was, it was covered by an attorney/client exception.

“Meeting with an attorney for legal advice, or meeting with staff to learn information, are not ‘meetings’ as defined in the Act,” Metro schools argued in its reply brief.

Chancellor finds deliberation may have occurred in closed meeting

However, Martin said in her order that:

The Open Meetings Act defines a meeting as “the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.” Tenn. Code Ann. § 8-44-102(b)(2). MNPS contends this was not a meeting because the gathering was not to make a decision or deliberate toward a decision. Plaintiff argues otherwise, contending that, at the very least, at this early stage and without the benefit of discovery, the Court should assume such decision making or deliberation occurred….
With the limited information provided, the Court cannot make a finding regarding what exactly occurred, and whether or not it was a meeting as defined in the statute, but the Court finds at this stage enough indicia that there was a decision, or deliberation toward a decision, in the closed session to find a likelihood of success of the allegation that it was a meeting covered by the Open Meetings Act.

Chancellor Anne Martin’s order, June 26, 2019

Chancellor says attorney-client exception is limited

In regard to the attorney-client exception, Martin described court decisions that have allowed an exception to the open meetings act, and noted that those cases involved actual or pending litigation, or a threatened lawsuit.

These cases are distinguishable from the present case because the record reveals no pending or threatened litigation by or against MN PS. The parties were in ongoing conversations about concerns that had come to MNPS’s attention regarding the KA Schools, but they cannot credibly be characterized as threatened litigation. In fact, Plaintiff expresses surprise and disappointment at MNPS’s actions given the context of the otherwise cordial and cooperative communications. Again, in the above cases there was a robust effort to develop facts for the Court to consider regarding what happened in the subject meeting and to make a reasoned determination about whether the meeting fit within the exception. Given the lack of evidence of threatened litigation or actual pending litigation in this case, the Court cannot find, at this time, that the discussion at the meeting fell under the attorney/client exception. Thus, the Court finds that Plaintiff is likely to succeed on the merits of its claim that MNPS violated the Open Meetings Act.

Chancellor Anne Martin’s order, June 26, 2019

Although Martin converted the temporary restraining order that Knowledge Academies had received to a temporary injunction, she declined to expand the terms of the injunction that Knowledge Academies had requested — specifically to stop any action to close the schools.

Plaintiff has the right to continue to pursue its claims under the Open Meetings Act and for breach of contract, but the Court cannot essentially take over the responsibilities of a local board of education, imposed under state law in Tenn. Code Ann. § 49-2-101, et seq., and specifically its duty to regulate charter schools pursuant to the Charter Act. To bar MNPS from, at some time in the future, initiating a process to revoke the KA Schools’ charters, would be inappropriate.

Chancellor Anne Martin’s order, June 26, 2019

Metro Nashville schools had also argued against allowing Knowledge Academies to depose those present at the closed meeting in its effort to determine whether deliberations or a decision occurred in violation of the Open Meetings Act.

Martin ruled that Knowledge Academies could go forward and take depositions of the attendees, except from the school board’s attorney.

It defies logic that MNPS is immune from discovery regarding the contents of the meeting given that the nature of the meeting, and what happened, is the crux of the Open Meeting Act claim. MNPS cannot ask Plaintiff, or the Court, to “take its word” that no decision or deliberations toward a decision occurred. This is particularly true since MNPS seeks to rely on declarations from attendees at the meeting about what did and did not occur.

Chancellor Anne Martin’s order, June 26, 2019

Finally, in considering the public interest on whether to grant the temporary injunction, Martin stated that “the public interest is best served by enforcing the Open Meetings Act, the purpose of which is to ensure that the public’s business is conducted in the public.”

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