COMMENTARY: Commissioners Look To Limit Access

The president of the Tennessee County Commissioners Association is mounting a statewide campaign to get the state legislature to weaken the state Sunshine Law.

Under the proposal by Williamson County Commissioner Bob Barnwell any number of members of a county commission, school board or city council – up to a quorum – could meet and discuss public business. The public would only have to be given notice if a quorum of the body was present.

Under the proposal, for example, 26 members of the 40-member Nashville Metro Council could meet and discuss issues without it being considered a meeting.

That’s because a quorum there is 27.

Barnwell is urging county commissions across the state to endorse his proposal with resolutions that ask their local state representatives and senators to support the measure when the General Assembly reconvenes in January. He has reportedly secured a sponsor already.

Voters and taxpayers should be on the lookout for action by local governing bodies, and local good government groups can register their sentiment.

The campaign surfaced in early September when the Shelbyville Times-Gazette reported on a regional TCCA meeting at Henry Horton State Park.

Barnwell complained local elected officials have to operate under rules that are different than rules that apply to the General Assembly.

Under the 37-year-old Sunshine  Law, two or more members of a government body may not get together in private to “deliberate” toward a decision.  

If it can be proven in court that they did, the decision in question can be voided by a judge or jury. Under rules of the state House and Senate, a quorum has to be present for a gathering to be considered a “meeting.”

Tennessee’s Sunshine Law was passed in 1974 and has been viewed as a model of government transparency.  Nothing in the law prevents two members of a governing body from talking to one another.  

It’s deliberating and conducting public business that is restricted.

The law was presumed to cover the legislature for 26 years. In 2001, the Tennessee Court of Appeals ruled that the law did not apply to the General Assembly because of two provisions of the state Constitution.

Article II, Section 22, states: “The doors of each house and of committees of the whole shall be kept open, unless when the business shall be such as ought to be kept secret.”

The General Assembly has rules that limit the “when” to include matters of state and national security and parts of impeachment proceedings except when a legislator is subject of the ouster.

Another constitutional provision says one legislature cannot bind a subsequent General Assembly. Article II, Section 12, states: “Each house may determine the rules of its proceedings ...”

The lawsuit stemmed from a series of closed meetings by House and Senate finance committee members when a state income tax was being actively discussed.

The principal difference of the bodies is that the legislature was created by the Constitution, while local governments are creatures of the General Assembly.

Barnwell’s proposal resurfaced in early October when he persuaded his own county commission to endorse the proposal.

“What’s good for the goose is good for the gander,” the Times-Gazette quoted Barnwell as saying.

This issue came up last in 2007 when an open government study committee of legislators, local government officials, media and citizens groups considered the quorum standard. Proposed by Shelby County, the study panel subsequently rejected it after city and county mayors around the state objected to small groups of commissioners and city council members getting together in secret before meetings and ganging up on them and their initiatives.

Even though some county commissions endorsed that proposal, county mayors said those discussions should be held out in the open as the Sunshine Law required.