I’ve been over this and over this. I’ve read blogs and news articles and even printed up some of the relevant sections of the law, and I just can’t understand some of the objections to the current law as it stands. Here is my understanding of the law in its current incarnation:
If two members of the same body (be they elected, or appointed to a public board/council) want to meet, it must be in public (a regularly scheduled meeting, or a meeting announced to the public and the press).
Seems simple enough, right? In Memphis, if two members of the City Council were to meet in private it would constitute 15% of the council. Hardly a quorum, but assuming that one or both of these members also met privately with other members, it could end up that a majority voting bloc were reached as a result of those meetings outside of the normal operation of the Council. That’s a big problem for me.
Citizens have a right to know the pros and cons of any business that comes before a public body. This is the nature of our democratic republic. Efforts to subvert this flow of information, regardless of whether the public uses it or not, also subvert the spirit of our representative form of government.
Considering all of the shenanigans that have taken place over the past several years, one would think that members of local boards would want to insulate themselves from any appearance of impropriety. Instead we have elected officials seeking to weaken the public meetings portion of the law by increasing the number of people that can meet privately to 2 or 3 or even more maddeningly, anything less than a quorum, to supposedly insulate themselves from potential prosecution. Here’s an idea, don’t meet in secret and you’re safe.
It baffles me that our public officials would want to exclude the public from decisions that affect the public. Surely they understand that there is already a strained trust between them and the people they represent. Why on God’s green earth would they seek to compound that strain by diminishing government transparency? It would seem that public officials, seeking to prove that their nose is clean, would advocate for more transparency instead of less. This is the foundation of my skepticism toward those who would seek to weaken the law.
Last week County Comissioner Steve Mulroy penned an editorial in the Memphis Commercial Appeal. In it, he brings up several hypothetical situations that could get someone in trouble. All three of these hypotheticals cite instances that seem to violate the spirit, if not the letter of the law. From that perspective, these hypotheticals may need some looking into, or at least some clarification from the state AG or the Supreme Court.
For instance, if a member of a public board or commission emails his position as the result of an absence, and that position is read into the record, what’s the problem? The member is on record, and as long as there is no further correspondence back and forth, no harm no foul. Perhaps the solution, in this instance, would be to send the correspondence to the appropriate board reporter (whatever that individual’s title may be for the body) to be entered into the record for that item, as well as a press release to the media outlets serving the area. Seems like a simple solution, no?
How about Item 2, the drafting legislation scenario. If the public entity cannot draft the legislation at a regular meeting, would not an announced special meeting of the appropriate committee be in order? That meeting could be agreed upon and announced at the end of regular business for the primary meeting, and the deliberations would be out in the open. Methinks the Commissioner doth protest too much.
Finally, the silliest of the hypotheticals, Item 3, If two members of the same body are violating the law by appearing at the same PUBLIC event and answering questions from their constituents individually or together, then that is truly stupid. It’s a public freakin’ event, how much more open could it be? One would think that a simple audio or video recording (if not a transcript) of the event would be sufficient to show that nothing untoward was going down (the spirit of the law). If there is some prohibition on members of the same body appearing at a public forum, intent on informing the public of the issues that affect their community, then that needs to be addressed…but Commissioner Mulroy’s prescription seems a bit out in left field.
Under Mulroy’s suggestion, anything less than a quorum would be permitted. That’s way overboard. I’m cool with two members of a body discussing the people’s business in private, as long as there is a disclosure of the meeting to the body the members serve and those disclosures are publicly available. Three or more gets too close to a quorum in some areas, and as such is way too much. By requiring disclosure, it gives the media and the public the opportunity to question their representatives on what was discussed. They may not get a straight answer, but it provides an additional check that would keep some of the shenanigans down a little.
The tone of the debate is something else that I want to address. Members serving on public boards and commissions would do well to offer alternatives, as Mulroy did even though I disagree with him, rather than merely complain about the prohibitions in the law. If the items listed in Mulroy’s editorial and noted in the comments of this blog post are truly prohibited by the law, particularly Item 3, then that deserves some attention. Public officials should be allowed to voice their opinions at public meetings outside the normal functioning of their publicly elected or appointed boards/commissions. It’s a public meeting for chrissakes. From the sound of it, a debate on the issues would be illegal. I find it hard to believe that this is the case.
Finally, there is something that needs to be addressed with the law; the availability of public documents. This is something that I run into constantly, that pisses me off. The minutes of the last meeting available on the Memphis City Council site is from November 6th, 5 weeks ago. There have been 2 meetings since then, and a third will be held next week (12/18). Where are those minutes? Does it take 5-6 weeks to get minutes approved? By the time minutes are approved and posted on the web, a proposed ordinance could be read three times and passed. Is that open government? Do I have to Tivo City Council meetings and sift through all that dryness to keep up with city business?
That’s just stupid. If nothing else, the Council should be required to post proposed minutes to their site 48 hours after the meeting so the people can be informed of the Council’s business in a timely manner that gives them time to react and possibly organize in support or against a proposed ordinance. Minutes from the previous meeting should be approved at the next meeting and posted as final at that time, not 6 weeks later.
Further, finding anything about the functioning of executive appointees or the departments that they head in the Memphis City Government is comically difficult. If members of public boards and commissions want more freedom perhaps they should address these issues first, then come back to their constituents with requests for more leniency.
We’re living in a new era, and governments from the bottom up need to be willing to inform their people of government business in ways that just 10 years ago would have seemed out of reach. This is about trust, the public trust given to elected officials to ex
ecute the will of their constituents, and the trust that those officials will do so in a way that is accessible to the majority with as little real or perceived obfuscation as possible. It is a delicate balance, and perhaps some elements of the current law go overboard, but until someone can quote the sections of the law that are limiting the productivity or public debate of public servants, I think erring on the side of caution is a far better than the alternative.