Thursday, April 26, 2007

Open meetings

Jack McElroy, editor-in-chief of the Knoxville News-Sentinel, has an important post today on his blog about the News-Sentinel's continuing legal action against the Knox County Commission for violating Tennessee's Open Meetings Act. Regulars know I am usually one of McElroy's biggest critics, because he usually perpetuates the paper's obvious biases. I have to admit that McElroy and the staff at the KNS are certainly on high moral ground with this legal action, and I think I join the overwhelming majority of East Tennesseans in supporting what the KNS is trying to do with this case.

The great problem, however, that McElroy will have is not only proving with certainty that the Sunshine Law was violated (something that is pretty hard to prove, since the way the statute is written, if any members of the general public were present in any way for any discussions between two or more Commissioners, it can be argued that the law wasn't broken), but a judge will then have to decide what punishments will be doled out to Commissioners, if any. That seems pretty simple, but the overlying problem is that the statute doesn't really lay out much in the way of punishments for violation.

Tennesseans who are in-the-know politically, and even those who have a very rudamentary knowledge of our system, know that the Open Meetings Act is the law in Tennessee. What many do not know, however, is that among the several States that have "Sunshine Laws," Tennessee's law, much vaunted among the local populace, is actually one of the weakest in the Union. Our law spells out what an open meeting is supposed to be, and tells us (albeit in more broad language) what does not constitute an open meeting, but it is written in such a way that it is very easy to "get around" the law, and unlike most laws which criminalize something, the Open Meetings Act does not lay out specific penalties for persons who violate it. All that is likely to happen is that the results of the January 31 meeting will be voided-likely to be replaced by a new "open" meeting made up of the old Commissioners who will appoint the same people they did on January 31. They can then say that they had already made up their minds and did not violate the Open Meetings Act by deliberating in private.

While in Nashville I saw several examples of what would appear to the casual observer to be violations of the Sunshine Law. Legislators talking to one another in the hall before a committee meeting was a common sight, and it was pretty clear that they weren't always discussing fishing, dinner, or the weather. The rapidity with which committee meetings move, especially early in the legislative session, is a clear indication that things are often hashed out well before committee chairmen call meetings to order. However, the Legislative Plaza is an open place, and members of the general public are to be constantly found roaming the hallways, elevators, and siderooms. Had I wanted, I could very easily have listened in on one of these conversations between legislators, and they could not-and I am sure would not-have stopped me, as it would violate the Open Meetings Act.

The Knox County Commission will likely have a similar argument in their case. Might they have slipped into a back hallway to discuss something? Sure, but those hallways, like everywhere else in the Knox City/County building, are open to the public, who may come and go as they please. Is it a sorry argument? I think that it is, but it may very well be a winning one under the structure of the Open Meetings Act. This lawsuit may not be a winner for the News-Sentinel, but may become an example of why the Sunshine Law needs to be made much stronger than it is.

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