Could Have Asked

Last week in their "Our Opinion" section, the News Herald editorial board wrote an editorial involving the possible violation of the Sunshine Law by Loudon City officials during their meeting to suspend the manager. That's all fine and good and they have a right to their opinion. But right at the end of the editorial, they found it necessary to throw me into the mix.

According to the editorial, an offhand comment raised a red flag. It goes on to suggest I may have violated the Sunshine law by emailing other commissioners. They did go on to say they, didn't know what was in the emails, but still had no problem making the accusation. Problem is, the emails they referenced were not a violation of the Sunshine Law. Had they asked I would gladly have shared the emails with them.

I did send two emails to all the commissioners, the mayor and his secretary in reference to the issue of county tax dollars being used to pave city streets.

Email #1:

2/5/19 To all,
 
There seems to be some confusion on the vote on Allenbrook roads last night.
 
As I understood the conversation, the city was asking for half the cost of paving the roads. The "estimate" was $110,000.00 by city councilman Eddie Simpson and city street superintendent JJ Cox. Matt's motion was for $55,000.00. I assume that was meant to be half of the estimate. However, if the work came in less, the county would pay half of whatever the cost was.
 
Also as I understand, today the city was already looking to get their $55,000.00 check now. I believe Tracy told them nothing could take place till the city accepted the roads into the city road system per Bill's (Satterfield) amendment. The city plans to accept the roads at their Monday council meeting and I suspect they'll be looking for their check Tuesday.
 
So the question is, were the 6 votes to give the city $55,000.00 regardless of the cost of the project or was it to only pay half of what the final cost of the project is or was it to pay half up to $55,000.00?
 
A second point of clarification would be, when does the county pay our part? If the intent was to be 50%, we couldn't possibly pay our share till the work was done and we had an invoice from the pavers.
 
Those who voted to pay may want to give Buddy and or Tracy some clarification on the intent.
 
-v-
_____________________________________________________________________________

Email #2:

2/10/19 To all,
 
If you get an opportunity, you may want to drive the street in Allenbrook that's been discussed, Flora Drive. I was expecting to find nothing more than a goat path by the descriptions given at the meetings. The road it's self is in good shape with one small twenty foot section that might have to have extra work before paving.
 
I can assure you, there are many, many roads all over the 5th district that are far worse condition than Flora Drive.
 
-v-
_______________________________________________________________________________

Neither of these emails constitutes deliberation or decision as defined under the Sunshine law per court rulings but were simply providing information which is allowable.

See below from County Technical Assistance Service, CTAS:

The (Sunshine Law) declares that a meeting occurs whenever a public body convenes for one of two purposes: to make a decision or to deliberate toward a decision.  T.C.A. § 8-44-102(b)(2). Therefore, it is not necessary that a decision be reached before the Sunshine Law applies. The statute does state that a chance meeting between two or more members of a public body should not be considered a public meeting subject to the terms of the act.  However, the same statute goes on to warn that chance meetings shall not be used to deliberate public business in circumvention of the spirit of the act. T.C.A. § 8-44-102.  In the past, courts have held that informal assemblages of a governing body at which public business is discussed and deliberated, including informal telephone discussions between members of a governing body, fall under the Sunshine Law.  See, e.g., Littleton v. City of Kingston, 1990 WL 198240 (Tenn. Ct. App. 1990). Because of how broadly the courts and the legislature have interpreted this act, the attorney general's office offered the following advice:  "Two or more members of a governing body should not deliberate toward a decision or make a decision on public business without complying with the Open Meetings Act."  Op. Tenn. Atty. Gen. 88-169 (Sept. 19, 1988).  More recently, however, the Court of Appeals has taken a more narrow approach to what constitutes a "meeting" under the Act, holding that email communications between members of the Nashville Metropolitan Council, even emails copied to the entire council, did not constitute a "meeting" as defined in T.C.A. § 8-44- 102(b)(2).  According to the Court, "Even though several emails copied all members of the Council, the exchanges among the members do not reflect either an intentional or inadvertent 'convening ... for which a quorum is required' for the purpose of making a decision."  Johnston v. Metropolitan Gov't of Nashville and Davidson County, 320 S.W.3d 299 (Tenn. Ct. App. 2009)

I'm glad the News Herald is being vigilant in oversight of local government as they should but if they're really worried about local government doing business behind closed doors, they might spend a little more time investigating meetings of government meetings a little closer to home.

 News Herald-In Our Opinion

Do the public's business in public

The poor treatment of the open meetings act by local officials was on full display last week when Loudon City Council pretty much ignored the law altogether, while a passing comment by a Loudon County commissioner revealed county government has its own problems.
 
Loudon council entered into executive session March 18 during its regular monthly meeting and members apparently discussed what actions to take related to City Manager Ty Ross and city staff about the handling of a situation involving feral cats.
All council could legally do behind closed doors was hear advice from a lawyer on what could be done regarding employee punishment and possible legal ramifications. Council could not discuss or deliberate toward the decision that was later made in open meeting.
 
Council clearly broke the law.
 
Lee Pope, open records counsel for the Tennessee Comptroller of the Treasury, said as much in a letter to a concerned Loudon resident who contacted the state about the meeting.
 
“A narrow exception to this general rule does allow a governing body to hold a closed-door executive session with legal counsel to receive information about pending controversies that may result in litigation, such as adverse action taken against a city employee,” Pope wrote. “... However, a governing body may not make decisions or discuss or deliberate toward making a decision during such an executive session.”
 
Council was within its rights to receive information. What to do with that information should have been discussed in public as the law requires. Actions taken by council after the executive session — to open an investigation of employment practices and suspend Ross — were swift and without discussion. No thinking person believes those decisions were not deliberated behind closed doors and in violation of state open meetings laws.
 
But that wasn’t the only questionable conduct by council.
 
Council didn’t meet behind closed doors with City Attorney Joe Ford, who was out of town. Instead, council met with an attorney invited by Tammi Bivens, councilwoman. What seemed obvious to observers was Bivens and Tim Brewster, councilman, discussed ahead of time bringing the Knoxville attorney to the meeting, which would again be a violation of state law. The open meetings act does not allow two or more members of council to discuss such matters outside council meetings. If Brewster and Bivens talked before the meeting about bringing in an attorney for an executive session — something council had to vote to do — they were in violation of the law.
 
Whether council should have suspended Ross or opened an investigation is up for debate, but how the decision was reached exposes council to a potential lawsuit from city residents.
 
There was another red flag in the county on the same night when an offhand comment during a regular Loudon County Commission meeting signaled possible wrongdoing.
 
Van Shaver, commissioner, has made a point of trying to overturn actions taken by the county to help pay for road paving in a Lenoir City subdivision. Shaver doesn’t think the county should pay, and he is well within his right as a commissioner to protest the action. When Shaver criticized fellow commissioner Julia Hurley during the meeting for missing the previous meeting in which the issue was discussed, Hurley mentioned receiving emails about the topic from Shaver.
 
The open meetings act does not allow members of a governing body to discuss potential decisions outside a public meeting, whether during a chance encounter or by private electronic communication. “Electronic communication shall not be used to decide or deliberate public business in circumvention of the spirit or requirements of (public meetings),” according to the act.
 
While it is unknown exactly what Shaver discussed in emails to Hurley, emailing other members of commission to influence an agenda that will be voted on is questionable at best.
 
Elected officials should respect the voters of Loudon County — the people officeholders work for — by conducting meetings appropriately and keeping communication about public matters in the public where it belongs.

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4/1/19