Court of Appeals whittles away public notice protections of open meeting law

Dickson County residents at the courthouse in Charlotte rally against the fuel terminal.  Photo by Chris Gadd / Dickson Herald, used with permission.

UPDATE: About two months after the Court of Appeals filed its opinion in the case on May 27, 2022, the court filed a notice of corrected page(s) on Aug. 8, 2022. Two corrections were made regarding whether the Titans Partners counsel met in private with the county commission or planning commission. The first correction is on page 2, the second paragraph, line 3: Originally, the sentence said “Thereafter, Dickson County Commissioners and counsel for Titan Partners engaged in non-public, “executive sessions” regarding the litigation brought by Titan Partners.” As corrected, the sentence states, “Thereafter, Dickson County Commissioners and their counsel engaged in non-public, “executive sessions” regarding the litigation brought by Titan Partners.” The second correction is in the footnote of page 2. Originally, the footnote stated, “The parties refer to the non-public meetings between the county commissioners and counsel for Titan Partners as “executive sessions” and/or “Rule 408 settlement discussions.” As corrected, the footnote states, “The parties refer to the non-public meetings between the county commissioners and their counsel as “executive sessions” and/or “Rule 408 settlement discussions.”

It is difficult to watch Tennessee courts roll back the meaning of the sunshine law.

In late May, the Tennessee Court of Appeals ruled that the Dickson County Planning Commission and the Dickson County Commission did not violate the Open Meetings Act when both left off of their published meeting agendas an item of widespread public interest.

The issue began when several residents, concerned about safety and environmental contamination, opposed the building of a petroleum fuel storage and distribution terminal. More than 1,000 people showed up at one rally against it and petitions were signed with hundreds of signatures.

The citizen opposition was so intense and widespread that after the planning commission approved the terminal’s site plan in April 2020, it met again and overturned its approval.

Titan Partners sues Dickson County, enters into secret negotiations

After that, Titan Partners, the company that wanted to build the terminal, sued Dickson County arguing that its action to overturn the earlier approval was “illegal, arbitrary and capricious.”

Dickson County began negotiating a lawsuit settlement with Titan Partners that involved multiple private meetings with the county commission and the planning commission. Behind closed doors, they came up with an expansive settlement agreement that went well beyond the disputes in the lawsuit over the site plan and grading permits and enveloped an entire plan related to the fuel terminal plus some extra frills. For example, Titan Partners would donate $1 million to be used by Dickson County for a new agricultural center or “any other community purpose” and the fire department would also get money.

To make the agreement official, the planning commission and county commission had to vote on it in open meetings.

No public notice given of settlement vote

Neither governing body put the settlement agreement on its agenda, though each agenda listed other items. They did nothing to notify the public in advance. Citizens were in the dark, but checking in. One citizen called before each meeting to ask if a settlement agreement would be discussed and was told no.

Citizens were infuriated. They were infuriated that the governing bodies met privately with the Titan Partners attorney to work out such an expansive deal. And they were infuriated that the commissions did not notify the public that they would be voting to approve a settlement at the respective upcoming meetings.

Without any knowledge or access to details of the proposed settlement before the first meeting, the public simply had no time to respond, talk with their representatives and plead for their support.

The planning commission met on a Thursday, amended their agenda during the meeting, and approved the settlement unanimously. Five days later on a Tuesday, the county commission followed the same pattern.

No public comment was allowed. It was a done deal.

Court of Appeals: No notice of agenda item required

Court of Appeals Judge Andy Bennett

The citizens filed an open meetings lawsuit, alleging that the governing bodies violated the public notice requirements of the open meetings law when they met privately with Titan Partners’ counsel. The citizens also alleged that the governing bodies violated the “adequate notice” requirements of the open meetings law by not including an issue of pervasive importance to the community on each agenda.

The Court of Appeals disagreed. The judge who wrote the opinion, Judge Andy D. Bennett, is from Dickson County. He was joined by judges Frank G. Clement, Jr. and W. Neal McBrayer.

Yes, the members of the governing body met in private with the Titan Partners lawyer to discuss a settlement, but no evidence suggested they did anything wrong, the court’s ruling said.

And in an even more disturbing pronouncement, the court said leaving off an important item from the published agenda did not constitute failing to give adequate notice to citizens.

“A published agenda is not a required component of adequate notice for a regular meeting under the Open Meetings Act,” the court said in its analysis.

Ruling paves the path for more skullduggery by government

Without going into the legal merits of the court’s views, the bottom line is that the court has delivered an opinion that will lead to more skullduggery by governing bodies that want to slide in controversial, even monumental, decisions without the nosy interest of affected citizens who might oppose.

The Open Meetings Act says that it is “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.”

In holding that it is A-OK for a governing body to hold private meetings with a company’s lawyer on a controversial project and to hide the upcoming vote on that controversial project by leaving it off the agenda, the court undermines the respect of the open meetings law embraced by earlier courts.

Instead, we get a new playbook on how to shut out citizens. How to silence their voices. How to stop what some officials perceive as meddling and complaining. How to operate in secrecy.

Perhaps the legislature will take notice of such degradation of the law they passed in 1974 and attempt a rescue.

Deborah Fisher is executive director of Tennessee Coalition for Open Government, an organization that has monitored and researched open government in Tennessee since 2003.