Judge: Registry of Election Finance board violated Open Meetings Act with secret vote by email

Chancellor Ellen Hobbs Lyle ruled today that the Registry of Election Finance violated the Open Meetings Act when it voted by email outside of a public meeting to accept a settlement to reduce the fines of a state lawmaker.

(See final order.)

Chancellor Ellen Hobbs Lyle

The board’s executive director, Bill Young, has said that he followed the process outlined by the Attorney General’s Office in coordinating the email vote of the six-member election finance board. In addition to voting outside the public eye by email, there was no public notice of the meeting.

The lawsuit was filed by several news media organizations and Tennessee Coalition for Open Government in late April after the registry board voted secretly by email on April 1.

Young has explained that the board needed to accept Rep. Joe Towns’, D-Memphis, offer to reduce his fines or Towns would not be qualified to run for reelection for a seat he has held for decades. Towns had threatened the board that if the board did not agree to reduce his unpaid fines by more than two-thirds, he would challenge the constitutionality of the campaign finance disclosure laws.

The Attorney General’s Office argued that the Registry’s vote was not subject to the Open Meetings Act because the Registry does not have authority to accept or reject a settlement offer to reduce a lawmaker’s unpaid fines. The Attorney General’s Office argued that only the Attorney General has authority to reduce such penalties.

Chancellor Lyle said that the decision by the board qualifies as a meeting.

“A vote was taken in this case,” Lyle said from the bench. “When we look at the Registry’s duty under the law, its independent role as a policing organization, that the public is relying on it to use its independence to assist with election violations — all of this indicates that the registry has a weighty role. And when the court takes those facts that are undisputed facts and filters it through the Open Meetings Act, the court concludes (that previous court rulings) when applied to these facts, show that what we have here is a consequential decision by the Registry… And that it qualifies as a meeting and a decision under the open meetings act.”

The state also had argued that the case was moot because, after the open meetings lawsuit was filed, the Registry held another meeting in which it re-voted to approve the settlement for Towns’ outstanding penalties.

This so-called “cure meeting” did not, however, make the case moot, Lyle said.

“The court concludes that a cure does not render moot an Open Meetings Act case as a matter of law,” she said. “You have to look to each case because in some situations, even if there has been a cure, there might be a need for ongoing supervision and injunctive relief. So there is not automatic mootness.”

“In particular in this case, it was important to come forward and file the lawsuit because even though there was a cure, there are questions about the interplay between the Registry and the Attorney General,” she said.

Lyle declined, however, to award the injunctive relief sought by the plaintiffs.

She acknowledged that the statute in the Open Meetings Act states that injunctive relief and court supervision shall be awarded upon the finding of an open meetings violation.

The statute says: “The court shall permanently enjoin any person adjudged by it in violation of this part from further violation of this part,” and “The final judgment or decree in each suit shall state that the court retains jurisdiction over the parties and subject matter for a period of one (1) year from date of entry, and the court shall order the defendants to report in writing semiannually to the court of their compliance with this part.” [T.C.A. § 8-44-106(c)(d)].

But she said she concluded that the remedy provided by this part of the statute is not “compulsory” but rather discretionary.

“The court is to look on a case-by-case basis to determine that even if there is a violation if supervision and injunctive relief are necessary. The court concludes it is not compulsory. And having concluded it’s not compulsory, the court concludes this is not a case that warrants an injunction or ongoing supervising by the court.”

The plaintiffs were represented by attorney Paul McAdoo of the Reporters Committee for Freedom of the Press. The plaintiffs are The Associated Press, Kimberlee Kruesi, Chattanooga Publishing Company, Gannett GP Media, Inc., Michael Anastasi, Gould Enterprises, Inc., Memphis Fourth Estate, Inc., Meredith Corporation, Jeremy Finley, Scripps Media, Inc., Ben Hall, Tegna, Inc., Jeremy Campbell, Lisa Lovell, Tennessee Association of Broadcasters, Tennessee Coalition for Open Government and Tennessee Press Association.

Matt Cloutier of the Attorney General’s office represented the state in the Friday hearing.

The hearing in The Associated Press et. al. v. Tennessee Registry of Election Finance was held via Zoom and livestreamed on the judge’s YouTube channel, where it remains for viewing.

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