Lawmakers fail to agree on Open Meetings Act amendment for COVID-19 crisis

Under a very tight deadline, the House and Senate were unable to reconcile differences in their bills that would create a path for governing bodies to meet electronically, and limit the physical presence of the public during the coronavirus epidemic. They recessed Thursday night without passing a bill.

Both the House and Senate bills would have allowed members of a governing body to conference into a meeting instead of attend physically. And both provided for some type of electronic access to the meeting by the public if the public was excluded.

Sen. Paul Bailey, R-Sparta, sponsored a version of the bill that offers more safeguards to the public, including limiting business in meetings closed physically to the public to essential business and business that the governing body determines can’t reasonably be delayed. Tennessee Coalition for Open Government supported the Senate version of the bill.

But they broke down over certain provisions. For example, the Senate amendment required that the business taken up during these types of meetings be limited to essential business and business that could not be reasonably delayed, pursuant to the governing body’s judgement. The House bill had no such limits or caution about business taken up.

The Senate bill also required that to prevent the public from attending a meeting, there had to be a governor-declared state of emergency. The House bill allowed the governing body to make a determination of the emergency.

During the course of amending the bill, the House made another change that would require that all meetings that restricted the public’s attendance require a video or audio feed.

The Senate bill said the governing body had to make a reasonable effort to require technology and capacity to make the meeting visible or audible to the public, but if it could not acquire that technology, it could record the meeting and make the recording available within 48 hours later.

Tennessee Coalition for Open Government began working on language for a bill for local governing bodies, consulting with key government associations, late last week while the General Assembly was itself embroiled in how it was going to conduct its meetings as news of the coronavirus grew more urgent.

A bill initiated from the Comptroller’s Office ultimately became the bill under consideration. TCOG supported safeguards that were added to the Senate version of the bill, carried by Sen. Paul Bailey, R-Sparta.

While presenting the amendment on the Senate floor, Bailey noted the support from open government advocates, including TCOG, and government associations, such as the Tennessee Municipal League. Several senators had signed onto the bill, including Rusty Crowe (R-Johnson City), Steven Dickerson (R-Nashville), Frank Nicely (R-Strawberry Planes), Shane Reeves (R-Murfreesboro), Steve Southerland (R-Morristown), Dawn White (R-Murfeesboro), Ken Yager (R-Kingston) and Jeff Yarbro, D-Nashville.

But the House co-sponsor presenting the bill, Rep. Chris Todd, R-Madison County, refused to concur with the amendment when it was brought back to the House floor. The Senate sponsor then refused to “recede from its action.” At that point, the bill went back to the House, which opted to take no more action. Both houses then adjourned until June.

(House Speaker Cameron Sexton was the prime sponsor of the House version. Other signed onto the House version, including Yusaf Hakeem, Kent Calfee, Pat Marsh, Chris Hurt, Esther Helton, John Crawford, Jason Powell, Clark Boyd, Jeremy Faison, Patsy Hazlewood and Brandon Ogles.)

Allowing members of local governing bodies to meet electronically, and limit the presence of the public, would be a major change in the law, even if temporary. And a change in practice. While more and more governing bodies are live streaming or broadcasting their meetings, many still do not.

The Open Meetings Act requires that all meetings be open to the public and not be conducted in secret.

The law currently allow members of some state boards to attend a meeting electronically under certain circumstances, but local governing bodies have never gained such an exception. Nothing in the law allows prevents the public from attending a meeting, or provides for electronic access to the public if they can’t attend.

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