WOOOOW NELLIE
After the dismal and pathetic voter turn-out in the last general election, I question any real benefit of taking the time to make the effort to try to keep my fellow citizen/voters abreast of issues that effect them and to encourage participation in the observation of our local government. The vast majority of the voters seem content to not participate, just criticize those that do. So be it. We'll call this one, for the public record.
There has been, in my humble opinion, such a blatant and conspicuous disregard for the Open Meeting Act, aka "Sunshine Law," by Mayor Davis and our Budget Committee with their semi-secret unscheduled meeting of the budget committee on Tuesday June 21st, that I just can not let it go unchallenged.
I have expressed my concerns to both the Chairman of the Budget Committee, Commissioner White and to Mayor Davis, only to have been kinda patted on the head and assured that they did everything right. Well, let’s see if they did everything, or anything, right.
If any of the elected officials, who control policy for Hardin County, would bother reading the state published County Government Handbook, which is kinda like an owner’s manual for our elected officials, they would find in Section 22 a general discussion of the requirements of the Sunshine Law. Even after years in office it is very obvious, and has been for some time, that Mayor Davis and Commissioner White and others wouldn’t recognize a violation of the Sunshine Law, if it was bitting them on the backside.
Mayor Davis and each and every one of the elected commissioners know or should know that in order to meet the requirement of the Sunshine Law, ‘adequate public notice’ MUST be given before all meetings to which the act applies. "No Adequate Notice - No Count Meeting".
The law of the land, (TCA 8-44-101(a)), is that it is the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret. Specifically, MUST have adequate public notice, period.
Well, what is "adequate public notice," you might ask?
The owners manual, citing our Tennessee Supreme Court, defines it as ‘. . . such notice based on the totality of the circumstances as would fairly inform the public." The operative words in that statement is, "fairly inform."
The courts over time have established two seemingly different standards for the adequacy of the required notices. There is one standard for meetings that would NOT be expected to be of interest to the general public and a more stringent standard for non-scheduled special meetings or if the issue is one that is expected to be of great public concern, i.e. of pervasive importance. I think an unnecessary increase in property taxes would qualify as ‘of pervasive importance,' don’t you?
Having said that, our courts have determined that the Open Meeting Act does not distinguish between "technical" and "substantive" violations of either standard. Said another way, a violation is a violation. Either is was or it wasn't violated.
For unscheduled special meetings and the more stringent standards, one of our States Attorney Generals (AG) has opined (Op.No. 00-095) that under the three-prong test for "adequate public notice" under this provision (the Act):
1. The notice must be posted in a location where a member of the community could become aware of such notice;
2. The contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken; and
3. The notice must be posted at a time sufficiently in advance of the actual meeting in order to give citizens both an opportunity to become aware of and to attend the meeting.
The AG also noted that for the purposes of the first prong of the adequate notice inquiry, the [county] can provide adequate notice simply by choosing reasonable public locations and posting notice at those public locations on a consistent basis. The court concluded that the city hall, the post office, and a local bank satisfied the requirements, under the circumstances presented.
One must observe that when the courts speak of the "locations" they speak in the plural. Locations - more than one.
Here is Strike One, Mr. Mayor. The only place your Notice of the Budget Committee Meeting was exposed to members of the community was in an obscure corner of the lobby of the courthouse that is used for various miscellaneous flyers for fund raisers and missing things. Is this single obscure location an adequate location where one might expect members of the community to become aware of such notice? Of course it isn't.
Why didn't you send a note to the Courier for them to post on the internet or you could have posted it on the county’s web page, right? Oh, that’s right, the county doesn’t have a web page, do they. Why didn’t you have the radio stations do a public service announcement for the meeting? Why wasn’t the non-scheduled meeting announced at the County Commission meeting, the night before, when several members of the commuity who came to voice their opinion on the tax increase were present, but were not heard?
Did the Mayor want to keep the meeting a secret or does he not know any better, even after 5 years on the job? You decide. I already have.
Here is Strike Two, Mr. Mayor. The contents of the notice did not describe or state any purpose of the meeting or action proposed to be taken, whatsoever. Missed that second prong content thing.
And finally, Here is Strike Three. The notice was posted, per Mayor Davis, on Monday, June 20th, the day before the County Commissioner even took any action to send the budget back to the committee. That was rather presumptuous on the Mayor’s part, wasn’t it?
The committee meeting was to be held on June 21, one day after the notice was hid in the corner of the courthouse and less than 24 hours after the Mayor had the commissioners vote to send the complete budget back to the committee for reconsideration of their best efforts to produce a reasonable budget, without comment or specific instructions for the committee, as to why or say what.
Your Out, Mr. Mayor. The law of the land is "in order to meet the third prong of the adequate public notice inquiry, the notice must be posted at a time sufficiently in advance of the actual meeting in order to give citizens both an opportunity to become aware of and to attend the meeting. Notice which is not posted sufficiently in advance of the special meeting is nothing more that a mere gesture. Our Courts hold that "notice that is a mere gesture is no notice at all."
I submit that the June 21, 2011 budget committee special meeting was in violation of the Sunshine Act of this State and any action taken by the budget committee at that meeting was, and is, invalid. It's a fact, T.C.A. § 8-44-105 provides that "any action taken at a meeting in violation of this part shall be void and of no effect. . . ." In reality things stand the same way they were, as if the meeting had never been held and they will until this violation is cured. Tick-Tock, the budget clock is still ticking.
Moving on. Of course a body that may have violated the act may cure its violation by conducting a subsequent meeting at which it ratifies the prior action. However, be advised that a cure meeting will not be effective unless the ultimate decision is made in accordance with the Open Meetings Act, AND if it is a new and substantial reconsideration of the issues involved, in which the public is afforded ample opportunity to know the facts and to be heard with reference to the matters at issue.
Come on, Mr. Mayor, do you really think that your cavalier efforts to inform the citizens and your uninformed version of the notice required by Tenn. Code Ann. § 8-44-103 is sufficient to give interested citizens a reasonable opportunity to exercise their right to be present at the meeting or give citizens both an opportunity to become aware of and to attend the meeting? All I can say is, oh my goodness, if you do.
A government that proclaims itself entitled to do completely as it pleases, while requiring its people to rigidly obey every precept of its legislation, violates the maxim of law that says, ‘just as the state and county are created by laws, so the state and county must be subject to law, … for only by the principles of law can we judge the state and/or county as just or unjust, wise or foolish, strong or weak. Such governments that proclaims itself entitled to do completely as it pleases are unjust, and their leadership should be changed immediately for the sake of the people whom they are charged by law to protect. Our founding fathers came up with that idea.
Ted G. Cook
Savannah, TN
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