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VOL. 122 | NO. 229 | Monday, December 03, 2007

Time Matters In Desire for Change To Sunshine Law

By Bill Dries

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Too many items on the agenda and not enough meeting time. That's the bottom line rationale for a call by most on the Shelby County Board of Commissioners to change the Tennessee Open Meetings Law, also known informally as the Sunshine Law.

The commission voted last month to support state legislation that would amend the Sunshine Law to allow local legislative bodies to meet in closed session in some instances. Legislators in Nashville working in a study committee this year have debated setting the threshold for an open meeting at a quorum of a legislative body or at four members.

"My constituents have to understand that when they come down here asking me to help them get something through, the only time I can talk about it is in the public meeting," said commission chairman David Lillard, who was referring specifically to any interaction he might have with other commissioners on a given issue.

He and other commissioners can meet with constituents privately as long as there is only one commissioner present.


Time is precious

The existing law requires any gathering of two or more members of an elected local legislative body or a local government-appointed commission or board to be open to the public. The exception is a meeting in which the group receives advice from legal counsel but does not debate or decide on a course of legal action.

Lillard said on hotly contested zoning or land use items, he and other commissioners often are approached by constituents in their given districts who oppose the zoning change. They want him to approach other commissioners privately, Lillard said, since they don't have the time to meet individually with commissioners.

"It's only when you are working on behalf of your own constituents on an issue that's relevant," he cites as a case in which meetings should be closed.

Developers or corporations seeking such a zoning change are at an unfair advantage, he contends, because they have the time to set up one-on-one meetings and are more familiar with the political process.

"Legislative time is very difficult to come by. There's very little of it, even on a hotly debated item. ... Ten minutes per member is the best that would be apportioned out. That's not enough to get it done," Lillard said.

The commission meets on Monday afternoons twice a month. Until Lillard began his year-long tenure as chairman in September, the commission held committee sessions the same day as the meeting of the full commission. It made for a 12-hour day of back-to-back meetings.

Lillard since has moved the committee sessions to Wednesdays of weeks the full commission doesn't meet. The committee sessions usually start around 8:30 a.m. and run into the late afternoon.

Lillard and other commissioners argue it's a heavy work load for a body that is supposed to be part time, like the body that meets part of the year in Nashville and calls the tune that local legislative bodies dance to when it comes to open meetings.

"The Legislature adopts budgets that are way in excess of ours. They mark them up in these meetings that are not subject to the open meetings law. I think we all ought to be on the same footing, myself - whatever footing that may be," Lillard said.

Whatever the Legislature might approve would not apply to what happens on the state Capitol Hill. The Legislature has exempted itself from the provisions. The Legislature's meetings must be open to the public only when a quorum of its members is present.


City considerations

So far, the Memphis City Council has not considered a resolution to support or oppose changes to the Open Meetings Law.

Like the commission, the council meets twice a month, on Tuesdays, and still has its committee sessions the same day as the full council session. It routinely means 12-hour work days for council members, who also are considered part time.

The City Council did meet every week from its inception in 1968 to 1985. The council moved to meeting twice a month under terms of a City Charter change in 1985. The change was approved by voters in a city-wide referendum.

"Just what we need, more chances to hold secret meetings," council chairman Tom Marshall quipped when asked about the commission's action last month.

Marshall was joking. But the wisecrack reflects the reality that council members and commissioners do manage to talk privately by phone and through private e-mail accounts and text messaging about government business - sometimes at meetings where they are sitting a few feet from each other.

Mayors, who are exempt from the law, have been known to meet with council members or commissioners one on one in a series of sessions to privately brief them on matters that would have to be discussed in public if there was a single briefing for everyone on the body.


Garnering trust

The Sunshine Law relies partially on the honor system. Reporters and other political observers usually interpret a vote on a complex and controversial matter with no discussion before the vote as an indication there has been some private discussion.

Commissioner Steve Mulroy backs changes to the law, saying it would allow for civil penalties where none exist now.

However, a court fight over the Knox County Commission's decision to meet secretly to fill positions suddenly vacated because of a Tennessee Supreme Court ruling came with its own political price tag.

At the end of a three-and-a-half week trial in October, a jury in Knoxville found the commission had violated the law by meeting secretly to decide on who should be appointed and then rubber stamping the decision in a public session. As a result, Chancellor Daryl Fansler later ordered all 12 appointments, involving four county-wide positions and eight commission seats, to be voided immediately leaving those offices vacant.

"There really isn't much defense for that - of them rolling the log on elections or elected officials." Lillard said of the case. "I think there probably ought to be a situation where commissioners cannot talk to each other about elections or appointments, things like that. ... You're not representing the public interest, you're doing something else. I think that ought to be an area that's not allowed for."

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