Lee Pope, open records counsel with the Tennessee Comptroller of the Treasury, has sent a letter to Coffee County Mayor Gary Cordell and Coffee County Attorney Robert Huskey to inform them about a recent complaint alleging members of the Coffee County Commission have violated the Tennessee Open Meetings Act (TOMA).
This is the second time in less than six months that the county has been notified of potential TOMA violations.
Any action taken by a governing body not held in accordance with TOMA is void, according to Pope.
A governing body may properly ratify such action by subjecting the action to new and substantial consideration during an open, public meeting. However, according to Pope, courts have still found violations and imposed sanctions even where a governing body properly ratifies actions taken outside an open, public meeting.
“Our office would recommend consulting with the county attorney regarding the foregoing allegations, as TOMA allows citizens to file a lawsuit when they believe an open meetings violation has occurred,” Pope said. “If a lawsuit is filed, a court will determine whether a violation occurred based upon the facts presented in the court.
“Should the court determine a violation occurred, it can issue injunctions against the members of the governing body and the governing body would be subject to the court’s supervision for a year from the day of the entry of judgment.”
Pope sent the letter to Cordell and Huskey on Jan. 15 to inform them about the complaint, the requirements of TOMA and the potential consequences.
According to Pope, the complaint alleges members of the county commission are having caucus meetings prior to regularly scheduled commission meetings that are not properly noticed and that minutes of these meetings are not being properly recorded.
The complaint also alleges members of the county commission are discussing and deliberating public business via email, said Pope.
One of the allegations is related to an email sent by Commissioner Margaret Cunningham to members of the Coffee County Rural Caucus. The email was sent after the meeting of the caucus, held Jan. 7, and prior to the meeting of the full commission, held Jan. 8.
At the caucus meeting, members discussed appointments to several committees. When discussing the agenda item of approving a candidate for a seat on the Public Building Authority (PBA), members decided to support two candidates for that seat. They also agreed the full commission, set to meet the following day, would have the final vote to choose one of those candidates.
At the full commission’s meeting on Jan. 8, however, a motion was made to delay the appointments for the PBA and industrial board for the purpose of implementing an application process.
In the email Cunningham sent to caucus members, she wrote, “Since we all left the meeting with no definitive applicant and after much conversation with numerous commissioners since that meeting, and considering the issues presented, it is felt that under the circumstances we might be better served to have an application process for all applicants, both PBA and Industrial Board.
“Therefore, there is probably going to be a motion made to defer action on the PBA and Industrial Board appointments until the March meeting. This will show good faith and give due diligence to the process for all applicants and would give us commissioners more time to consider the applicants’ qualifications.
“The motion would have potential candidates pick up applications at the mayor’s office this Friday and returned back in a timely manner, yet to be determined. In the interest of trying to make the best decision we can make, without prejudice, this seems to be a more fair and equitable way to appoint board members.”
Cunningham also wrote this is not definitive and “some of you may or may not agree but in the interest of trying to help this process along in as positive a fashion as possible, this may be the least controversial method.”
On Wednesday, when asked about the email, Cunningham said the caucus did not sufficiently cover the issue on Jan. 7 because “everyone wanted to leave” to watch the college football bowl game. Alabama and Clemson played in the College Football Playoff National Championship game that night.
“The effort was to get a good PBA candidate,” Cunningham said. “I did not have one devious intention in mind.”
“We didn’t finish the conversation adequately about the applicants at hand because people were too damn anxious to go watch a bowl game, and if that’s going to be more important than trying to figure out how to get some non-controversial people, good business people, on a board that is severely lacking, then I will be glad to take the blame,” Cunningham said.
Requirements of TOMA
In Tennessee, the formation of public policy is public business and cannot be conducted in secret. TOMA (TCA 8-44-101) requires all meetings of a governing body, which includes the Coffee County Commission, be open to the public except as provided by the Constitution of Tennessee.
There is an exception when it comes to attorney/client privilege. These exceptions involve pending litigation and an attorney must be present at the meeting for the exception to be met.
A “meeting” occurs under TOMA if two or more members of a public body convene to discuss or deliberate toward a decision on any matter that a quorum of the governing body would need to vote upon.
There must be adequate public notice of any such meeting and minutes of the meetings must be promptly recorded.
“Accordingly, any convening of two or more commissioners to discuss or deliberate matters the commission would need to vote upon should only occur at an open public meeting for which there is an adequate public notice,” Pope said. “Additionally, minutes of any such meetings should be promptly and fully recorded.”
The law further provides that electronic communication cannot be used to decide or deliberate public business in circumvention of the spirit of TOMA requirements.
“Accordingly, courts in Tennessee have found a violation of TOMA where city council members used email to deliberate public business,” Pope said, citing Johnston v. Metropolitan Government of Nashville and Davidson County. “Therefore, members of the county commission should refrain from deliberating commission business via email, as doing so would also most likely constitute a violation of TOMA.”
Cordell said he wasn’t aware of any discussions in violation of TOMA prior to the letter he received from Pope.
“No, I wasn’t aware there was any discussion among commissioners by email,” Cordell said. “That does concern me, if there are any violations involved – we don’t know that, we are researching that.”
Cordell added he’s currently reviewing the allegations.
“We are reviewing that with our attorney … to understand the issues better,” Cordell said.
When the open records office receives a complaint about a possible open meeting violation, the routine practice is to make the chairman of the governing body aware that a complaint was filed and to advise as to the requirements of Tennessee’s open meetings laws, said Pope on Thursday.
“Our office does this in an effort to rectify any potential open meetings issues a governing body may have and help encourage compliance with the law,” Pope said. “As always, our office expects governing bodies to operate in accordance with Tennessee’s open meetings laws and we are happy to provide training or otherwise work with county officials to promote compliance with the law.”
Elena Cawley can be reached via email at firstname.lastname@example.org.