The chief justice of the Tennessee Supreme Court announced today that all Tennessee courts would be suspending in-person judicial proceedings through March 30 because of the coronavirus outbreak.
There are some exceptions. Business must go on for some essential and critical proceedings. In those cases, the court said the proceedings will be limited to attorneys, parties, witnesses, security officers and “necessary persons” as determined by the trial judge.
Also this week, the Shelby County Board of Commissioners announced it will host “virtual meetings for at least the next two weeks.”
“These virtual meetings will take place in the 1st Floor Chambers to ensure that residents and employees may view the live stream video online. A call-in number will be provided on each agenda so that residents may call in. Employees may still attend the meetings to discuss relevant agenda items; however, members of the public should call in to engage.”
While the Shelby County Commission doesn’t directly say it’s banning citizens from its meetings, it seems to have gone to great lengths to provide ways for citizens to engage in the meeting without actually attending.
Preserving transparency in an emergency
We are in new territory as governing bodies try to figure out how to carry on essential government business in a public setting while also protecting the public.
As Chief Justice Jeff Bivins said in the news release about the courts, “Public spaces in courthouses tend to be small, tightly packed bench seats that provide the type of situations public health officials have encouraged people to avoid during the COVID-19 outbreak.”
The same could be said of the rooms and chambers in which public meetings are held every week in every town and county in Tennessee.
But what about the legal tradition of open courts and open meetings? The Tennessee Open Meetings Act that states in its preamble “The general assembly hereby declares it 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.”
“All meetings of any governing body are declared to be public meetings open to the public at all times,” the law states.
Governing body members can electronically participate in meetings in limited situations
In 1990, a provision was added to the Open Meetings Act that allowed members of state boards, agencies and commissions to participate in a meeting through electronic communication under certain circumstances. The idea was that there would be some situations when members of state boards — living in different parts of state — could not travel to Nashville for a meeting.
There had to be a determination that the matters to be considered required timely action and “the physical presence by all members is not possible within the period of time requiring action.”
That part of the law allowing electronic participation by members of governing bodies has been modified through the years. But it has never applied to local boards and commissions, except for an exception won by the City of Belle Meade in 2005.
And never has the “electronic participation” allowance been used to limit the public’s physical attendance of a meeting.
Can a governing body ban the public from attending a public meeting during a pandemic?
The question, of course, is can a city council, a county commission, a school board or the myriad of other governing bodies in the state subject to the Open Meetings Act, ban the public from the meeting because of a public health safety issue.
And if they can, or if they should, what adequate accommodation can be made so that the public’s business “shall not be conducted in secret?” What would be the rules of the road during such emergency?
While many governing bodies of large government entities, like the Shelby County Commission and the General Assembly, have resources and technology to livestream their meetings, most do not.
The state has seen more and more governing bodies put video of their meetings online, or on a public access television station. But I doubt that in a short amount of time, governing bodies who have never explored such levels of transparency would be equipped or able to get there in a matter of days.
There is no question that governing bodies must be able to do the public’s essential business, especially if we find ourselves in a full-fledged outbreak.
Tennessee Coalition for Open Government is committed to thinking through how to preserve transparency, and prevent the undermining of open government, in such an emergency.
Communications technology has truly transformed our society. The tools may exist to preserve transparency in an emergency. But getting these tools into the hands of governing bodies who need them may take some help from the public.
Deborah Fisher is executive director of Tennessee Coalition for Open Government. She can be reached at firstname.lastname@example.org.