A Lebanon resident, who was barred from entering a city council meeting, is claiming the Lebanon City Council has violated the Tennessee Open Meetings Act multiple times in recent months and is requesting the city get training on the law and reconsider its actions on a recent rezoning decision.
Lorrie Hicks, through her attorney Paul McAdoo, has sent a letter to the Mayor Bernie Ash of the Lebanon City Council, explaining the alleged violations.
She told TCOG she has not yet heard back from the city, although the mayor was quoted in the local newspaper as saying he had turned over her letter to the city attorney. “I don’t know what’s going to come of it,” Ash was quoted as saying in The Lebanon Democrat. “I don’t think very much.”
Hicks allegations center around emails sent by Ward 3 Councilor Camille Burdine (who represents Hicks in Ward 3) regarding rezoning requests in a residential neighborhood. Hicks says the emails constituted deliberation with other council members about an issue to be voted upon, which would be prohibited under the open meetings law.
Emails between members of governing body cannot be used to deliberate outside open meeting
The open meetings statute prohibits using electronic communication to “decide or deliberate public business in circumvention of the spirit or requirements” of the Open Meetings Act.
Further, the Court of Appeals in Johnston v. Metro. Gov’t of Nashville & Davidson County (2009) found that emails sent by members of a governing body to other members violated the Open Meetings Act because they constituted deliberation.
The Johnston case also involved a residential zoning issue, and the Court, looking at the content of the emails, found that some emails constituted deliberation, while others did not.
Deliberation has been defined by the Courts as “to examine and consult in order to form an opinion” and “[t]o weigh arguments for and against a proposed course of action.”
Councilor emails city council explaining intention and reasons to approve rezoning request
In the Lebanon issue, Councilor Burdine sent an email on Feb. 18 to other members of the council about her intentions to approve a rezoning request that would allow a business in a neighborhood that otherwise just permitted residential use.
In the email, Burdine explained her reasons and arguments for approving the rezoning, which was in her Ward.
In another email after the vote, she reiterated that her purpose of the prior email was to let the City Council know of her intention regarding the rezoning request.
Then in yet another email on Feb. 24, she emailed the council again, explaining her position regarding two other rezoning requests to allow a real estate office in an area zoned residential.
Her emails to fellow council members contained detailed reasons to approve the rezoning, McAdoo said in his letter.
Councilor Burdine’s attached emails go farther than simply forwarding emails from her constituents without comment to the other members of the City Council. Her February 18, 2019 email explained in detail her position on rezoning 110 S. Hatton, including eleven bullet points explaining why she intended to vote for the rezoning and was sent to the entire City Council. In her February 24, 2019 email regarding rezoning 113 and 118 S. Greenwood, which was also sent to the entire City Council, Councilor Burdine explained why she is in favor of rezoning those properties too and refers back to her arguments regarding rezoning 110 S. Hatton. This sort of email advocacy violates TOMA and is the type of communication that mirrors the discussion one would expect “to take place at a Council meeting, in the presence of the public and the Council as a whole.” Johnston, 320 S.W.3d at 312.
June 14, 2019 letter to Lebanon mayor on behalf of Lorrie Hicks
The letter also outlines how Hicks and her husband were barred from entering an April 25 City budget meeting by an armed security guard.
The security guard told Hicks that he was told to ‘lock the doors and not let anyone else in.’ Two members of the press did attend the budget meeting, but Hicks was not permitted to. The City has since said that this was a mistake. Assuming this was a mistake, it still kept an interested citizen from attending an open meeting of her local government, which is her right under both the Tennessee Constitution and TOMA.
June 14, 2019 letter to Lebanon mayor on behalf of Lorrie Hicks
Whether or not locking Hicks and her husband out of the meeting was intentional, McAdoo points out that no intent to circumvent the Open Meetings Act is required for a violation to occur.
Open Records Counsel: Emails that deliberate public business violate TOMA
The letter to the Lebanon mayor included an advisory opinion written by Lee Pope, the open records counsel of the Office of Open Records Counsel, stating that “email exchanges weighing arguments for a proposed course of action relative to public business that would need to be voted upon by a governing body would violate TOMA.”
The letter also states that the Open Meetings Act has been found by the Tennessee Supreme Court to implement the constitutional requirement of a citizen’s right to open government “by requiring all meetings of a governing body to be open to the public at all times.”
Pope: Barring people from public meetings without legitimate purpose is unconstitutional
Pope said that the right is not absolute and “an individual’s right to attend public meetings should be balanced with a governing body’s legitimate interests in conducting orderly and safe public meetings.”
Pope’s advisory opinion states:
…Courts in Tennessee have yet to address specifically the extent to which governing bodies may prohibit individuals to attend public meetings. The Office of the Tennessee Attorney General has opined that governing bodies may place reasonable time, place and manner restrictions on access to public meetings, so long as those restrictions serve a legitimate public interest…
As such, it appears governing bodies in Tennessee may regulate access to public meetings in a manner that reasonably serves public safety and welfare, or its ability to conduct orderly and efficient proceedings.
Prohibiting individuals from attending public meetings for other reasons that do not serve a legitimate purpose would likely be considered viewpoint discrimination that would run afoul of TOMA and Article I, Section 19 of the Tennessee Constitution.”
Office of Open Records Counsel Advisory Opinion 19-01 “Email between members of a governing body and access to public meetings”
