The Open Meetings Act states that a meeting occurs when a “governing body of a public body for which a quorum is required” convenes “to make a decision or to deliberate toward a decision on any matter” [T.C.A. § 8-44-102(b)(2)].
“Meeting” means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. “Meeting” does not include any on-site inspection of any project or program.T.C.A. §8-44-102(b)(2)
Some gatherings of members of a governing body would not be considered a meeting under the law.
For example, the statute says that a “meeting does not include any on-site inspection of any project or program” [T.C.A. 8-44-102(b)(2)].
It also says that a “chance meeting of two or more members of a public body” is not considered a meeting as defined by the law. But in very strong language that echoes the principles underlying the law, the statute makes clear that:
…no such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part.[T.C.A. 8-44-102(c)]
This section of the law has been among the most contentious, but guidance by the courts and the state’s Attorney General has been helpful in laying out the boundaries.
Supreme Court rejects argument that definition is too vague
For example, attorneys for the Metro Nashville board of education argued in Dorrier v. Dark (1976) that the law was defective because the legislature did not clearly define what it means “to deliberate.” They argued members of governing bodies might violate the law without intending to do so.
The Supreme Court said that was unlikely to pose a problem:
…(I)t is our opinion that members of public bodies will face very few situations, if any, in which they cannot be aware of the existence or non-existence of a quorum and whether or not they are in the course of deliberation toward a decision on policy or administration affecting the conduct of the business of the people.” (Dorrier v. Dark, 1976)
More than 40 years after the Dorrier decision, public officials continue to complain the law is too restrictive and vague and that it prevents them from talking with fellow members outside an announced meeting. Those arguments are used repeatedly to push for allowing more business to be conducted in private and to allow more members to meet privately without giving public notice.
Attorney General offers guidance on what constitutes a meeting
In 2012, the Attorney General of Tennessee issued a legal opinion (OP12-60, Application of Open Meetings Act) that offered even more clear guidance that nothing in the law prohibits two members of a governing body from speaking with each other outside a properly announced public meeting. They can even dine together. They simply should refrain from deliberations.
The question was:
Can members of a county or city legislative body share a meal together and casually discuss county or city business and/or issues before their respective legislative bodies under the Open Meetings Act, if the discussion is for informative purposes only and no decisions are reached or attempts made to obtain commitments?OP12-60, Tennessee Attorney General
The opinion noted that while a casual gathering might not violate the law, add the element of “deliberating” and the legal complexion could change.
The private discussion of public business at a meal by any number of members of a governing body would certainly present the potential issue of whether a chance meeting, or informal assemblage, was used to decide or deliberate public business in circumvention of the Open Meetings Act. Whether a violation occurred would depend upon what was said and what transpired during the meeting. Thus, while the case law does not lend itself to hard and fast rules because the decisions are so fact dependent, some cautious advice readily appears. While two or more members may share a meal together in which public business is discussed, such discussion should not constitute deliberations, which term has been defined to mean to “examine and consult in order to form an opinion” or to “weigh arguments for and against a proposed course of action.” See Johnston v. Metropolitan Government of Nashville and Davidson County, 320 S.W. 3d 299, 311 (Tenn. Ct. App. 2009).OP12-60, Tennessee Attorney General