Before I go on I would suggest that you read two editorials from today’s Commercial Appeal here and here. Both provide a view from those who would seek to keep the law as it stands now…these articles, in addition to email and phone conversations I have had with people and elected officials, have helped me further shape my position from my original post.
Secondly, I would suggest reading the full Knox county deision (pdf). No one I have talked to disputes that the Knox County commissioners went well above and beyond the law. Additionally, the information provided in the decision gives some important insight into the legal ramifications of a violation of the law.
Finally, I feel it is valuable if people read the appropriate sections of the law. Both the open meetings and document sections can be found here by looking up sections 8-44-(101-108) (meetings) and 10-7-503,504 (records). The sections of the code follow a simple file method. First click on Tennessee code, then follow the numbers in the order they appear. This has been an invaluable tool to me.
Before I go on, I would like to put it out there that any disagreement I may have with those seeking to change the meetings portion of the law should not be construed as anything other than a disagreement with their position. I hold no grudges against those who disagree with me, and actually seek them out from time to time to keep my views in check, and help me strengthen my arguments. I am for this kind of frank discussion between public officeholders and their constituents, and to the best of my knowledge, there is no provision in any of the statutes listed above that prohibit any such conversation.
In my last post I spend some time with hypothetical situations that are outside the current “Sunshine Law” brought forth by Shelby County Commissioner Steve Mulroy in this editorial. Since that post, Commissioner Mulroy has graciously given of his time to respond via email to the post and to further questions that arose from that initial contact. I won’t republish the entirety of that exchange in this space, though there are some interesting bits that come to light as a result of the converstaion.
1. Item 3 – This item, you will remember, asserts that a meeting attended by two elected officials of the same elected body was illegal under the current law. What county Commissioner Mulroy fails to mention in this instance is that this meeting would be legal had the two individuals gone through the appropriate process;
48 hours’ notice on the “sunshine bulletin board” in the basement of 160 N. Main (let alone our normal SOP of emailing all media)
Further, Commissioner Mulroy concedes in his email that there is little likelihood that any suit would be brought under this circumstance.
Granted, a lawsuit is unlikely to proceed based on that scenario, but the over breadth of the law and the resulting uncertainty has a chilling effect on dialogue among local legislators that I know, from personal experience, to be unhealthy and counterproductive.
With that, I call straw man. Technically this may be illegal, but it is hardly settled law as there has been no court ruling on an instance that involves a public event attended by two members of the same public body. Further, we should not blame the law for elected officials being unacquainted with the provisions held therein. For those of you keeping score, that’s one for keeping the law, none for changing it.
2. Lobbying – Another reason individuals cite for wanting to change the law is the adverse effect lobbying has on decisions. Under current law it is illegal for members of the same body to speak with each other outside of regular meetings. This provision does not exclude the efforts of professional lobbyists or members of the administration (Mayors, etc.). While there may be some merit to members of the same body “lobbying” each other privately, in that it is a safe environment that allows certain barriers or personas that the “lobbied” individual may have publicly to be less prevalent, one has to wonder why said individuals cannot do so in the light of the open meetings? If our elected representatives are so fragile that they cannot stand or be swayed by intelligent arguments, then why should they continue to represent us?
Further, it would seem that for issues that are of utmost import to the community served, that elected officials would seek comment from their constituents and use legislative maneuvers to lengthen the open period of a contentious question, to ensure the public interest is served. A tricp to the “sunshine bulletin board” may be in order. (Keep 2, Change 0)
3. Private Public Meetings – In Commissioner Mulroy’s editorial he advocates a “3 member” or “anything less than a quorum” standard for consultations between members of the same public body. In my last post on this issue, I was open to this idea. The thinking on my part was, despite how things and people “should” be, some individuals will only be swayed in private, their public personas getting in the way of progress. This position, of course, can work both for and against you. A section of the editorial I referenced above changed my mind:
Allowing up to three members of a public body to meet privately would be the same as allowing all of them to meet privately. It’s not hard to imagine elected or appointed boards organizing themselves into three-member subcommittees that would relay messages back and forth without public scrutiny.
In this scenario, it would be easy to envision two and three members of public boards using a “round robin” strategy to decide things in private that should be deliberated in public. With that, I must rescind my support of the 2-3 member rule in favor of the existing standard. The public’s right to know all sides of the issue trumps the comfort level of ANY elected official…period. (Keep 3, Change 0)
The issue here seems to be “why can’t elected officials debate in public”? We’ve already seen, in the soon to be former Memphis city council, elected officials who couldn’t discern the difference between personal and rhetorical or positional attacks. This galvanized the council against certain individuals whose style trumped the substance of their arguments, often to their own detriment. This is a human condition that neither legislation, nor legal private meetings will fix. These challenges should not hold the public process hostage.
Elected officials should be self-actualized enough to be able to disagree without feeling personally attacked. They should also be able to debate without attacking personally. If people feel uncomfortable openly discussing issues in a public forum, perhaps they should not seek the office again. Holding public office is a personal decision to surrender a certain level of privacy. In my opinion, the current meetings law, which has stood since 1974, is not only appropriate, but hallmark legislation for the nation.
There has been a disturbing trend
in recent years that has made it more difficult for Americans to know what is going on in the Federal government. This, in the face of constant media “scrutiny”, if that’s what you want to call it. Personally I call it “Paris chasing”, or the “style over substance” that dominates the cable news media. There is less scrutiny on state government, as there are fewer media resources (read: dollars, and interest) involved. Additionally, these bodies are often part time affairs that only meet for a few months during the year. City and County governments may be the most connected to the people in proximity, but have even fewer media resources available to inform the public and check the individuals bodies, particularly in the absence of real competition after the “newspaper wars” of the 80’s and 90’s.
It is for these and many other reasons that Tennesseeans (the people, not the paper in Nashville) should be proud of the sunshine laws as they stand. For over 30 years we have had the most open government, legally, in the nation. We should hold ourselves up as the standard for other states to mimic, not run away from our leadership position because “no one else is doing it”.
That said, the law as it stands is not perfect, as nothing is. There is always room for improvement, and there are many opinions on what is or isn’t improvement. Requiring Internet accessibility of transcripts, votes, meeting announcements and other business is a positive for open government. Further, it is now affordable, where it may not have been in 2004 when the law was last considered.
On the other hand, loosening our belts to be more in line with our less restrictive neighbors is a step in the wrong direction. It is through strict discipline that we can have local governments that are the above the national standard in openness. This is hard and may be uncomfortable to some, but necessary. We should appreciate the openness that we have instead of throwing it out with the bath water, because the bathwater is too cold for some. We have the law that should be the envy of other states, and unless we’re brave enough to keep it, we will see it fall away like so many other rights and privileges have in a political environment that has nurtured fear over vigilance.
It’s time to strengthen, not weaken the law. For my part, I oppose private meetings, support more open records, and hope that local public officials will take this opportunity to communicate more with their constituents rather than seek private audience with their colleagues. This is the nature of a heathy democratic republic. We should support it, hold it dear, and be the standard that all other states aspire to.
P.S. I would like to thank my friends Left-Wing Cracker and Newscoma for their patience and input over the past few days. Their input has been invaluable. Additionally, I would like to thank Shelby County Commissioner, Steve Mulroy for corresponding with me on this issue. We may find ourselves on different sides of this issue, but I’m positive that there are plenty of other issues we agree on. Hell, I voted for him!