Thursday, September 13, 2007

Where is the line crossed?

The Knoxville News-Sentinel's case against the Knox County Commission may rest, as the paper said today, on the context in the law of the word "deliberation." What constitutes deliberation? Are all "gentleman's agreements" violations of the sunshine law? After all, many at the State level will tell you that a gentleman's agreement to approve (within reason) private members' bills as they pertain to a member's specific district alone tends to keep the Tennessee General Assembly from degenerating into a complete circus.

Most of these pertain to things such as city charters within a particular member's district needing amended or a county or municipality in a member's constituency needing to have a referendum on this or that local issue. Under Tennessee law (unlike many other States) all such moves require a vote of the General Assembly. As a result, early in a legislative session it isn't at all uncommon for entire sessions of the House or Senate to be taken up with private acts. Because members must daily vote on private acts pertaining to parts of the State where they do not live and their constituents are unaffected by the proposal in question, it is generally agreed that these acts will be quickly moved through the legislature unless there is some glaring impropriety, largely because a good-faith presumption is made that since local officials brought the issue to their legislator, this is an issue that local people want to address and should be allowed to decide.

Some Knox County Commissioners spoke of a similar agreement among themselves:

Many spoke about honoring a gentleman’s agreement in which the entire body typically agreed to abide by the wishes of commissioners of a particular district when business from that district was at issue.

On the surface, there is nothing untoward or strange about such an arrangement, so long as Commissioners equally agree to take a second look if they think there is any impropriety involved in any proposal. However, appointing eight County Commission seats with little or no public input is another matter altogether.

At issue, though, is whether the Commission deliberated in private as a body:

“There may be a lot of politics in this case,” Owings said. “Sometimes politics are unpleasant, but this case is not about politics. At the close of this trial, you’ll be asked to decide if the plaintiffs have proven by a preponderance of the evidence whether Knox County Commission deliberated — key word — in private.”

It is impossible to expect Commissioners, who are human beings, not to discuss among themselves casually (as colleagues) what their personal preferences might be as it pertains to these appointments. Like everyone else who actually knew what was going on, I'm sure they had their opinions and their personal preferences about who they would like to see appointed, in at least eight cases, to replace themselves.

The real problem was not that they had those opinions and preferences, and not even that they privately expressed them, but that they proceeded to act on them without allowing for the public input of their constituents. Constituents are those people who elected you in the first place, and if you have to appoint replacements for vacancies created for whatever reason (in this case, a Supreme Court ruling) it is only right that when the time comes to make that appointment, citizens from the affected constituencies should not only be allowed to speak but ought to be given priority in the speaking order. Instead, the Commission did all in its power to shut citizens up that day while they deliberated.

I am not certain if that qualifies as a violation of the Open Meetings Act in the strictest sense. If it does not, the Act should be amended to prevent anything like what happened in Knoxville on January 31 from ever happening in the State of Tennessee again.



At Thursday, September 13, 2007 2:34:00 PM, Anonymous Anonymous said...

It's silly to compare unspoken agreements with spoken negotiations. In this particular case, that comparison becomes even more ludicrous because the wishes of several commissioners being replaced were completely ignored and overridden.


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