knoxnews.com-LOUDON — School board members needed a Sunshine Law policy.

They broke the Sunshine Law writing it, a lawsuit claims.

Richard Truitt sued the Loudon County school board last year, claiming the board met in an illegal secret session on Aug. 31, 2017, to discuss its open records policy. The case could be headed before a judge Jan. 23 on the board's motion to throw out the lawsuit.

Cure or cover?

Lawyers for the board say members made up for any mistakes at a meeting two weeks later that was announced days in advance. At that meeting, the board voted to adopt the policy now in place. No harm, no foul — and no case to try, the lawyers say.

"The public was afforded ample opportunity to know the facts and to be heard while there was a new and substantial reconsideration of all the matters at issue," attorney Chris McCarty wrote.

Truitt's lawyer, Linda Noe, said he doesn't have a quibble with the policy itself. But Truitt wants board members to admit they broke the law in the first place and be placed under court supervision, as provided under the Tennessee Open Meetings Act.

"He wants an open and transparent policy, but what he's found is they don't even follow their policies," Noe said.

Truitt, who was out of state this week, couldn't be reached for comment.

Open government advocates say they'll be watching the case with interest.

"I think it’s important that it’s settled by the court whether or not the board violated the Open Meetings Act," said Deborah Fisher, director of the Tennessee Coalition for Open Government. "If they violated the Open Meetings Act, they need to know so they don’t do it again. And certainly it shouldn’t become a practice for any governing body to violate the law with the idea that they can correct it later without any sanction. That would mean the Open Meetings Act would have no teeth whatsoever."

No public notice

Last year's meeting followed a round of text messages. Tennessee legislators had mandated that all local governments, school systems included, set public records policies in keeping with the state's requirements.

Loudon County Schools Director Jason Vance texted board members on Aug. 28, 2017, a Monday, to ask for an executive meeting on the specifics. By the following day, they'd settled on Aug. 31, 2017, a Thursday.

"I think this is the only policy that has caused (this) much (of an) issue over the past year and I would like for us to come to some sort of agreement and be able to move forward at the September meeting," Vance wrote in the 2017 texts.

He didn't immediately return a call for comment Thursday.

But the board published no public notice of the planned meeting in the county's local newspaper, the News-Herald, and posted no notice on the school system website or at the central office. State law requires "adequate public notice" of all meetings of any government body, even emergency meetings, if there is going to be any deliberation of issues.

Eight of the board's 10 members showed up for the Aug. 31, 2017, meeting, joined by Vance. However, one board member also tipped off Pat Hunter, a local activist for open government and frequent requester of public records.

"This shouldn't be a big deal," Vance texted one of the board members. "We just need to decide how to place numbers on the amount we will charge for copies (of public records) and try to make Pat happy."

Coming to 'consensus'

Hunter wasn't happy, even though she made it to the unannounced meeting. Neither were others. Truitt, a frequent attendee at school board and County Commission meetings, didn't learn about the meeting until it was over.

Video of the meeting posted to YouTube shows the board opening with a prayer and the Pledge of Allegiance before diving into a roughly 50 minute discussion of policy specifics. No one cast a vote, but Vance suggested during the discussion that members reach a "consensus" ahead of the board's next regular meeting.

Truitt filed the lawsuit within a week of the meeting. The board responded by meeting again on Sept. 14, 2017, in public to discuss and vote on the policy — although Truitt's attorney questions whether even that meeting met all the requirements for public notice.

Redo or formality?

The Sunshine Law forbids government bodies from deliberating in unannounced meetings. Agencies found in violation — such as the Knox County Commission, found to have met in secret to discuss filling government posts at its infamous Black Wednesday 2007 meeting —  can be placed under court supervision and required to file periodic reports to satisfy a judge that all legal requirements are being met, or risk be held in contempt.

But courts have ruled that Open Meetings Act violations can be "cured" by reconsideration of issues in the public eye. The board's lawyers argue the second meeting met that standard and have asked 9th Judicial Circuit Judge Mike Pemberton to dismiss the case. The board also insists the August discussion wasn't a meeting but a "gathering."

Courts in Tennessee haven't specifically laid out a test for whether a violation has been cured, said Rick Hollow, a Knoxville attorney who specializes in open government cases.

"We do not have any appellate decision that tells us how much of a redo is a redo," said Hollow, who routinely represents the News Sentinel. "The (state) Court of Appeals has held it's not enough for the meeting just to be a formality. Anything short of a full reconsideration would be an arguable violation of the law."