September 30, 2009 City Finance Committee Meeting and the Tennessee Open Meetings Act

The regular meetings of the Morristown City Council are on the first and third Tuesdays of each month. The Finance Committee of City Council meets regularly on Thursdays prior to Tuesday council meetings.

Yesterday (Tuesday) there was a special called meeting of the Finance Committee. There was an announcement of yesterday's Finance meeting in the Tribune on Sunday (9/27) and Monday (9/28).  The announcement said the meeting would take place at 4:00 in the City Chambers, the usual meeting place of the full Council. There was no information as to why a special Finance Committee meeting was being called and no information as to what would be discussed.

I called the interim Administrator's office around 4:00 pm on Monday afternoon to find out why there was a special Finance Committee meeting on a Tuesday and what was on the agenda for discussion or action. The administrative assistant, Nellie, said that she had been on vacation and that she had only found out about the special meeting by reading the notice in the paper just like I did. Nellie didn't know what was on the agenda and didn't know if any packets or information had been given to the Finance Committee members. Interim Administrator Buddy Fielder was not there and did not have voicemail to get messages.

I went to City Hall yesterday and walked over to the City Chambers to attend the meeting but found that the council meeting room was closed. It turned out that the meeting had been moved without announcement to the "mayor's conference room" near the Mayor's and Interim City Administrator's offices. Just before 4:00 pm, the new Finance Committee chair Frank McGuffin passed out a lengthy agenda. Click on the image above to see a copy of the agenda.

The first item on the agenda was the KIA property next to the Golden Corral on the West A.J. Hwy. It is my understanding that Councilwoman Kay Senter, various city officials, Chamber officials, Tribune publisher Jack Fishman, and "others" have already met in groups and have toured the KIA building. The KIA property is in foreclosure, and apparently some people have been discussing a public-private partnership to purchase the building for a future community center and other uses.

As it turned out yesterday, there was very little discussion about the KIA property or any other item on the agenda.

There are laws in Tennessee covering Open Meetings, and these were enacted to ensure openness and transparency in the governmental process at every step of the way.  I talked to Finance Committee Chair Frank McGuffin privately right before the meeting about the Open Meetings Act.  Since this meeting was not a regular previously scheduled Thursday meeting, it appears to fall under the notice requirements for special called meetings.

I showed Frank an unpublished opinion of the Tennessee Court of Appeals which also cites a published opinion regarding notice requirements for special called meetings.  The main requirement for special called meetings is notice to the public of what is to be discussed, so the public can decide if this special matter concerns something in which they are interested.

Frank was polite but did not want to re-schedule the meeting. Instead, he chose to call the meeting to order and proceeded to announce the first item on the agenda (KIA property).

I then asked and was allowed to present to the full Finance Committee and other city council members in attendance the questions that I had initially raised privately with Frank. As concisely as possible, I explained that special called meetings are called to deal with specific items--most often items that can't wait for a regular meeting--and that these items should be announced in advance so that the public can decide whether the special issues to be discussed or considered are such that they wish to attend. 

Although Kay Senter clearly wanted to continue with the meeting, she did acknowledge that typically special called meetings do have a specific agenda and the council can only discuss what is on the agenda for the special meeting.  The agenda for yesterday's meeting was drawn up at the last minute and was only handed out to council and those in attendance right before the 4:00 meeting time. Neither the public nor the full council knew the topics that were to be discussed and considered at this special meeting in advance of the meeting.

Of course, the Clintonesque excuses were then bandied about. Mayor Barile said the meeting was to be primarily about the KIA property, but she had added several items at the last minute. Mayor Barile said that the document that had just been passed out-- the one entitled "Finance Committee Agenda"--wasn't exactly an agenda. It was mostly just her thoughts. 

Frank McGuffin and the others admitted that regular Finance Committee meetings take place on Thursdays, but Interim City Administrator Buddy Fielder argued that this Tuesday meeting wasn't a "special called" Finance Committee meeting, it was just an "additional" meeting of the Finance Committee.  Some wondered aloud, if no votes are taken at the meeting then that that would take care of any Open Meetings Act problems.

When the Clintonesque talk begins at any public meeting, you cringe. 

This is not a regular previously announced Thursday Finance Committee meeting, but it's not a special meeting either. [OK, so what is it? A semi-regular or semi-special meeting?] 

Even though this document that we just passed out says "Finance Committee Agenda" and lists what we are going to discuss and in what order,  it's not really an agenda, it's mostly just some "thoughts." [OK, so if it walks like a duck, looks like a duck, quacks like a duck, and even says it's a duck, it's not really a duck?]

If we don't take a vote, do we still have to worry about whether it's a meeting or a special meeting with additional notice requirements to the public per case law. [If there is discussion and deliberation of an item of public business or an item that will come before the governing body, then it is a meeting and adequate public notice applies. If the meeting takes place on a day/date (Tuesday) other than the day/date previously announced (Thursday), it requires a real stretch to say that it is somehow not a special called meeting and thus does not fall within the more specific notice requirements for called meetings.]

MTAS, upon whom the city frequently relies for legal opinions, has provided guidance on special called meetings and has included a reference to the unpublished opinion [Englewood Citizens] that I discussed with Frank and mentioned in my comments to the Finance Committee and other councilmembers. Click here to see the MTAS opinion.

There was notice of the Finance Committee meeting. Under the three-prong Englewood test cited by MTAS, there would be a question as to whether two-days notice was adequate public notice. In the case of a special called meeting, there would be a serious question as to whether the public was adequately informed of the public business to be discussed or deliberated upon at the special meeting.  In fact, since the "agenda" was only passed out to Finance Committee members at the meeting, there is a serious question as to whether the Finance Committee itself was provided with adequate notice of items to be discussed or considered at the special meeting.

NOTE 1: The city's website never provided notice of yesterday's Finance Committee meeting. As of several days ago and today, the city's website provides notice of the council meeting on 9/15; the Solid Waste Board meeting on 9/18; and the regular Finance Committee meeting on October 1 at 3:30. No website mention was ever provided of the 9/29 special Finance Committee meeting.

NOTE 2: It is my understanding that the items on the 9/29/09 agenda (shown above) will be considered at tomorrow's (10/1/09) regular Finance Committee meeting. Tomorrow's meeting, however, will start at Thursday's regularly scheduled time of 3:30 pm!