Last month, a Hamilton County judge ruled that Chattanooga’s industrial development board violated the Open Meetings Act in a decision to give tax money to a developer to build a golf course community on a mountain.
This month, Office of Open Records Counsel Elisha Hodge warned the chairman of the Greene County Industrial Development Board, Alan Broyles, that an inaudible meeting violates the state’s Open Meetings Act.
Hodge said she listened and watched a video of Greene County Industrial Development Board’s July 18 meeting where citizen Eddie Overholt was famously cuffed and arrested for asking the board to speak up.
Hodge said she could not hear portions of the meeting even though a microphone was on the camera used to record it. She advised the industrial development board to consult its attorney and told Broyles that a citizen could bring a lawsuit.
The Open Meetings Act, often referred to as the Sunshine Law, exists in Tennessee to make sure that deliberations of a governing entity are not done in secret. It exists so that citizens of the state can hear the deliberations and know what their government is doing. It is based on rights outlined in the state constitution, and it addresses the unfortunate tendency of some governing bodies to prefer to make deals and do business behind closed doors.
When the Open Meetings Act passed in 1974, it was challenged by governmental bodies who said it was unconstitutional. But it held up to court challenges, and citizen rights prevailed.
There is no immediate punishment for a violation written into the Tennessee Open Meetings Act. But if a citizen files a lawsuit alleging a violation, a judge must consider the facts of the event, and could rule the action of the governing body null and void.
That happened in Chattanooga last month after citizen Helen Burns Sharp spent $50,000 of her retirement savings because of what she saw was an “improper and illegal gift of taxpayer funds to developers who already had plenty of money.” (She’s started a website, wants to organize a citizen group to fight similar abuses and is raising money to help with the legal fees.)
It also happened famously in Knox County in 2007 when county commissioners met secretly with each other to appoint replacements after a ruling that they were subject to term limits. The Knoxville News Sentinel brought that lawsuit, and it was joined by a citizen group represented by Herbert Moncier.
Industrial development boards
Members of industrial development boards are not made up entirely of elected officials; some of them are appointed by elected officials. Usually the boards are headed by a county mayor or a city mayor, such as the one in Greene County, chaired by county mayor Broyles. Most are attached to a city or a county, make governmental decisions about public tax money and are subject to the Open Meetings Act.
Too often, the work of economic development officials is shrouded in secrecy. (See a recent column by TCOG on this.)
We have not yet seen an open meetings lawsuit in Greene County. But Hodge’s opinion is important because it lays out what is obvious to all who understand the concept of the Open Meetings Act. A governing body can’t pretend to have an open meeting and then speak so low and quietly, avoid the use of microphones, sit with backs to the audience, and essentially create a situation where people can’t hear and still be in compliance with the law.
It struck me as strange when I first saw the video with the unused platform and microphones behind the table where the Greene County board met, and even more strange that the only accommodation that appeared to be made for what was expected to be a large crowd of citizens was the presence of police. A TV reporter told me that she had trouble hearing, and that even her camera’s microphone which was set up near the board couldn’t pick up all the discussion.
Photo by Kristen Buckles, The Greeneville Sun
Eddie Bruce Overholt, of Cocke County, protests as he is removed from the July 18 meeting of the Greene County Industrial Development Board (IDB) by a Greeneville police officer after Overholt spoke out following a warning from Greene County Mayor Alan Broyles. Broyles, the chairman of the IDB, had just warned that anyone who spoke out at the noisy meeting following his caution statement to the audience would be removed from the room. Overholt then spoke up to ask that the board members talk loudly enough for their discussion to be heard by the audience. He was eventually charged by a Greeneville police officer with disrupting a meeting and resisting arrest.
When citizen Eddie Overholt asked the board members to speak louder, the county mayor who had just warned about outbursts after clapping by the audience, ordered him removed. Overholt was cuffed and led out, and later charged for disrupting a public meeting and resisting arrest. (You can see the video here.)
It must have been somewhat frightening for the citizens there. And intimidating. Being cuffed by an armed policeman. Overholt, a veteran, said that had never happened to him.
But here’s the point. Overholt was not heckling the board. He was not trying to participate in the deliberations or the discussion. He raised a highly relevant point: Citizens could not hear the deliberations of a governing board deciding upon a controversial issue — and could they please speak up.
If the board had responded differently, believing in the spirit of the Sunshine Law, perhaps this mess could have been avoided.
Deborah Fisher is executive director of Tennessee Coalition for Open Government, an 11-year-old nonprofit made up of media, citizens and good government groups promoting transparency in government through education.
