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Too Much Sunshine Burns

by Joe Sullivan

Last week's court ruling that the state's Open Meetings Law applies to the state Legislature removes the smoke screen behind which legislators were trying to justify closed-door meetings. We have no doubt that the court will go on to find that numerous legislative conclaves on the state budget violated the law and will require that the public's business be conducted in public in the future.

It's heresy among journalists to concede that public officials should be able to discuss any public business in private. But this columnist is nonetheless concerned that the court's ruling could be carried to unwarranted extremes. In making his ruling, Davidson County Circuit Court Judge Hamilton Gayden announced that he's considering appointment of an expert witness to address whether two legislators can meet on pending matters. Whatever holds for state legislators also applies to every other legislative body in the state, and I believe it would do more harm than good to prohibit two members of a body from talking to each other privately.

Consider the case of a legislator who's sponsoring a bill that's under attack by lobbyists, who aren't subject to the Open Meetings Law. "If I couldn't brief members ahead of time and, yes, lobby for my bill, then it would be very simple for lobbyists to spread misinformation and defeat me," says former state Rep. Wayne Ritchie.

Former state Sen. Bud Gilbert counters that, "I've watched the bosses threaten and exert pressure on behalf of legislation when so often it was in the public interest that it didn't pass." Yet as the architect of the state sales tax recapture legislation that's crucial to the financing of the city's new convention center, it was certainly in Knoxville's best interest to have Gilbert championing that bill with his colleagues. Does anyone think it would be realistic to issue public notice of any such meetings in advance?

During my years covering Congress for the Wall Street Journal in the 1960s, the landmark Civil Rights Act of 1964 wouldn't have been enacted without bipartisan support. To get bipartisan support, the ranking Republican on the House Judiciary Committee, Rep. Bill McCulloch, had to convince the House Minority Leader Charles Halleck to agree to a compromise worked out with officials of the Kennedy Administration (in the fall of 1963). God forbid that their discussions could not have taken place.

Locally as well as nationally, meetings between the executive branch and a single legislator are exempt from any sunshine requirement. Thus, Mayor Victor Ashe can use his considerable persuasive powers, along with whatever other tools, to get City Council members to support, say, the authority to condemn the downtown Holiday Inn Select. Shouldn't opponents of condemnation, such as Councilman Carlene Malone should be able to do the same? All the more so considering she doesn't have all the same tools at her disposal (e.g. Ashe's reneging on his reappointment of Councilman Nick Pavlis to the Knox County tourist Commission after Pavlis opposed condemnation, only to replace this experienced hotel executive with a complete neophyte, Councilwoman Jean Teague).

Anyone who thinks that Council members don't almost always have their minds made up on issues prior to public meetings has another think coming. So their comments at the meetings are typically aimed at the public, not their colleagues, and deliberation is hardly the word for what takes place. That isn't as it should be, but it's a fact of life.

County Commission is a different sort of milieu, where things can be in flux. Based on soundings prior to commission's 1999 vote on a 55-cent property tax increase, Chairman Leo Cooper thought he had 12 supporting noses counted on that 19-member body. But during the course of the meeting three of them, Commissioners Mike Arms, Pat Medley and John Schmid, defected. If Cooper hadn't bearded Arms and prevailed on him to reconsider during a recess, the meeting would have ended in a deadlock with the county budget left in limbo. Was Cooper exercising legislative leadership or skirting the Open Meetings Law? I say the former.

The law defines meetings which must be open to the public as "the convening of a governing body of a public body for which a quorum is required in order to make a decision or deliberate toward a decision on any matter." However, it goes on to exempt "a chance meeting of two (2) or more members of a public body" with the stipulation that, "No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this [act]." That leaves it to the courts to decide what constitute "deliberations" in a host of circumstances.

Judge Gayden doesn't need to take on this host in order to reach the conclusion that entire committees and party caucuses of the Legislature were holding non-public meetings in violation of the act. A classic rule of law is that cases should be decided in the narrow, and it should be adhered to in this case.

The other question Gayden must decide is whether to invalidate the state budget that was approved illegally or simply enjoin the Legislature from future violations of the law. The act provides that, "Any action taken at a meeting in violation of this part shall be void and of no effect; provided that this nullification...shall not apply to any commitment, otherwise legal, affecting the public debt of the entity concerned."

This latter proviso may well spare the state from having its budget invalidated. And who do we have to thank for that? None other than then-Sen. Victor Ashe, who was instrumental in getting the proviso included in the 1974 act at the behest of municipal bond underwriters.

August 10, 2000 * Vol. 10, No. 32
© 2000 Metro Pulse