Wednesday, October 03, 2007

October 3, 2007 Knox Sunshine Verdict: 12-0 For the People

Twelve jurors gave a BIG victory to Tennessee citizens and to open government advocates yesterday. The plaintiffs in court were the Knoxville News-Sentinel and nine citizens. The defendant was the Knox County Commission.

At issue in the trial was Tennessee's Open Meetings Act which states in part: "...the policy of this state [is] that the formation of public policy and decisions is public business and shall not be conducted in secret." TCA 8-44-101.

The Knoxville News-Sentinel and the nine citizens sued Knox County Commissioners for violations of Tennessee's Open Meetings Act (TOMA) in a January 31, 2007, special meeting of the Commission and in actions and conduct prior to that meeting. At the meeting, commissioners appointed 8 new commissioners and 4 new countywide officials (trustee, county clerk, sheriff, and register of deeds) to replace the officials then in office.

Why were 12 officials suddenly being replaced? These 12 officials were term-limited by a Knox County Charter provision that had been approved by Knox County voters in 1994 but that been ignored for 12 years.

When a 2006 Knox case involving term-limited officials reached the Tennessee Supreme Court, the Court issued a ruling in January 2007 that the term limit provisions of the Knox charter were valid and that the 12 officials who were then holding office were in fact term-limited and should be removed from office and replaced.

Yesterday, 12 citizens said that Knox County Commissioners violated both the letter of Tennessee's Open Meetings Law as well as the spirit of the law during the process of appointing replacements for the term-limited officials.

The jurors decided that numerous violations of the law occurred during private meetings of commissioners that took place during numerous recesses at the January 31, 2007, meeting and that other violations occurred during private meetings and deliberations that took place prior to the January 31 meeting.

The ball is in the Chancellor's court now (pun intended). Chancellor Fansler will fashion a remedy for what happened. He has wide latitude in this regard, and you can be sure that Knox County and other public bodies and citizens across the state are watching with deep interest.

Some of the options he has are (1) Order a re-do of the meeting to make the appointments in an open meeting with all deliberations made publicly; (2) issue an injunction that prohibits future "Sunshine" violations and requires that commission report on its compliance to the court.

In a very complex case, each of these options raises its own unique set of issues.

If a "re-do" is ordered, are the eight old term-limited commissioners brought back to vote again on the appointments? Will the re-do really be a new and open consideration of all interested individuals or will it just be a rubber-stamp appointment of the same people again?

If Fansler orders a re-do, will Josh Jordan, son of term-limited commissioner Diane Jordan and himself a former drug-dealer, again be appointed to replace his mother? Will Sharon Cawood, wife of term-limited commissioner Mark Cawood, again be appointed to replace her husband? Will Chuck Bolus, who testified under oath that he suddenly decided to be sworn in early on January 31 but has no recollection at all of how an oath of office suddenly and miraculously appeared in his hand that day, be appointed again?

I am very pleased with the verdict. The News-Sentinel and the nine citizens have given their time and have spent considerable sums of money to clarify the Sunshine Law and to support open and accountable government in Knox County.

The Tennessee Coalition for Open Government has praised the decision while recognizing that Tennessee's Sunshine Laws (Open Meetings law and Open Records law) are not very strong.

The Coalition, of which the News-Sentinel is a member, wants to strengthen these laws when the Tennessee General Assembly meets in 2008. However, the Coalition's efforts are being opposed by city and county officials and by organizations that represent city and county officials.

These city and county officials and their member associations want to weaken Tennessee's Sunshine laws by providing for more "exceptions" that would prevent citizen access to public records and that would allow officials to meet privately in groups and reach agreements prior to public discussion and sometimes even prior to the public's awareness that a topic is under consideration (the "meeting before the meeting").

If city and county officials get their way in weakening the Sunshine Laws, then the Tennessee General Assembly will need to re-write the introduction to the Open Meetings Act as follows: "...the policy of this state [is] that the formation of public policy and decisions is NONE OF THE PUBLIC'S BUSINESS AND IS TO BE CONDUCTED IN SECRET."

1 comment:

Anonymous said...


Sadly this decision was not based on the law but instead on public opinion of people who were already against the process from the get-go.

This trial was and is a waste of resources given the fact that all of these appointed offices have to go to the voters in Feb. anyway. True open government would have been to allow the people to vote on who they as a whole wanted to replace the ones they elected to begin with.

It is no big secret I have opposed this lawsuit but many have missed why I opposed it and so now I tell you.

1. News-Sentinel was in this for publicity and because they didn't get who they wanted in the seats.

2. Increase KNS traffic and subscriptions.

And finally let me say that even though this guilty verdict has come back what is solved? Nothing!! The same power people will back new minions and have the same result.

True reform would be booting out the entire county government and electing all new participants to what was once a well ran institution.