What it takes to win an open meetings lawsuit in Tennessee — a look at the Memphis superintendent case

Former Memphis-Shelby County Schools superintendent Marie Feagins appears in circuit court July 22. (Photo by Patrick Lantrip reprinted with permission from The Daily Memphian)

The former Memphis-Shelby County Schools superintendent, Marie Feagins, pressed her case in court Tuesday that the school board violated the Open Meetings Act in deciding to fire her in January.

Feagins alleges that members of the school board discussed firing her in meetings not open to the public in violation of the open meetings law.

The school district’s lawyer, Robert Spence, told the court that the board could discuss Feagins’ performance in private without running afoul of the law, according to news reports in Chalkbeat and The Daily Memphian.

Feagins’ lawyer William Wooten offered a different point of view: “At stake here is not just Dr. Feagins. It’s the public’s right to open, lawful decision-making by elected officials. That right has been disregarded, trampled and violated.” (See quote in Chalkbeat’s story.)

Feagins had worked for the district just over nine months when the school board voted 6-3 to terminate her on Jan. 21. After the meeting, the school board released a report prepared by its lawyer, Spence, about Feagan’s conduct constituting termination. One school board member said she received the report (which was 209 pages) only shortly before the meeting.

Do private discussions by school board members violate Open Meetings Act?

While I was not at the court hearing on Tuesday, the news reports indicate that the school board’s lawyer maintains that any private discussions between school board members about Feagins’ performance did not violate the open meetings law. It would appear he is not contesting that such private discussions took place.  But he also says that Feagins lacked evidence to prove a violation of the law.

I don’t think Spence is right on the first claim about a broad right of governing bodies to discuss public business in private. But he may be right on the second about evidence — a judge will have to decide that.

To win an open meetings lawsuit in Tennessee, the record must contain enough facts about what took place to prove the violation. (See the detailed evidence presented in a recent open meetings case in Chattanooga Publishing v. City of Chattanooga and Chattanooga City Council in which redistricting committee members claimed their private meetings did not involve deliberation or decision-making, and that individual councilmember meetings with city staff were not used to form a consensus. The city lost on both points.)

The law clearly states that a governing body’s deliberation toward a decision must be done in an open meeting, and that “informal assemblages or electronic communication” cannot be used to “decide or deliberate public business in circumvention of the spirit or requirements of this part.”

Open Meetings Statute

The Open Meetings Act says:

“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… [T.C.A. § 8-44-101

“All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee…[(T.C.A. § 8-44-102(a)]

“’Meeting’ means the convening of a governing body of a public body 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. Nothing in this section shall be construed as to require a chance meeting of two (2) or more members of a public body to be considered a public meeting. [T.C.A. § 8-44-102(b)(2)]

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)]

What the Court of Appeals says about ‘discussions’

The Tennessee Court of Appeals has said “deliberate” is “to examine and consult in order to form an opinion…” and “to weigh arguments for and against a proposed course of action.” (See Johnston v. Metropolitan Government of Nashville and Davidson County (2009) and Neese v. Paris Special School District (1990). The court in the Johnston case examined emails between councilmembers, finding that in several email exchanges, councilmembers were “clearly weighing arguments for and against the (zoning) Overlay, with or without the exclusion amendment.

“These exchanges, most copied to all Council members, mirror the type of debate and reciprocal attempts at persuasion that would be expected to take place at a Council meeting, in the presence of the public and the Council as a whole. We must conclude that these emails are ‘electronic communication … used to … deliberate public business in circumvention of the spirit or requirements’ of the Open Meetings Act,” the court said.

The court in Johnston also examined a back conference room that was utilized during a council meeting to make information available to council members about the proposed zoning overlay.

“Unless the activities in the back conference room went beyond the provision of information, and extended to substantive discussion of positions and attempts to develop a consensus, then this gathering did not constitute a ‘meeting,’ did not involved (sic) ‘deliberation,’ and did not violate the Open Meetings Act,” the court said, noting that the trial record showed no evidence was presented that showed anything happened beyond providing information.

Type of private discussions by governing bodies that violate Open Meetings Act

The Johnston case and others are helpful in that they describe the type of discussions that would constitute deliberation by members of a governing body in violation of the open meetings act.

These rulings show that discussions about government business in private by members of a governing body — individually in serial meetings with staff or between two or more members — can indeed trigger an open meetings violation. The court in Johnston even used the word “discussions” in defining what could constitute a violation.

Yes, the courts have ruled that members of the governing body can receive information without violating the open meetings law.

But members of the governing body are violating the law if they are, in private:

• Examining information or consulting with each other in order to form an opinion,
• Engaging in substantive discussion of their positions, or
• Attempting to develop a consensus.

Did school board members privately discuss amongst themselves reasons to fire the superintendent? Would sharing evidence on reasons to fire her as a way to discuss their positions on the topic be “substantive discussions”? Probably, if this happened. Were school board members trying to reach a consensus in private? In other words, were they trying to convince others to vote to fire her?

The school board members know what happened. But ultimately, a person bringing an open meetings lawsuit must bring the evidence, usually acquired through testimony, depositions and other records of communication. Getting such evidence is not an easy lift, but it can be done, as in the recent Chattanooga case.

It’s also important for everyone involved to remember that the Court of Appeals has said that because the Open Meetings Act is remedial in nature, it “should be liberally construed in furtherance of its purpose” and “should be interpreted to promote openness and accountability in government.”

The judge has a decision to make. But in the end, the public is the ultimate judge. The citizens of Shelby County will decide not just whether firing Feagins was right or wrong, but whether they want their governing bodies to act behind closed doors in their discussions about such a consequential decision. Members of the school board should consider this also in thinking about their future actions.

Deborah Fisher is executive director of Tennessee Coalition for Open Government