Tuesday night’s learning curve for new McMinnville officials offered a warning to them to avoid discussions while not in an open meeting and the realization some board members discussed proposed changes to the city administrator’s contract up to three weeks prior to the meeting.
When it comes to open meeting act requirements, city attorney Tim Pirtle says the act covers notification to the public and discussions between board members.
“Discussions toward deliberations or decisions can only be held in a meeting where adequate public notice has been given,” Pirtle said.
Alderman Rick Barnes says he was told by the Tennessee Municipal League that board members could discuss issues as long as they do not make a decision.
“I was told by TML that we could discuss anything we wanted and as much as we wanted, we just could not make a decision,” said Barnes.
The case log points to that statement not being accurate, says Pirtle.
“The case law would not support that interpretation,” he said. “There are lots, and lots, and lots of cases out there on communications between board members or among board members, if it’s more than two, that are deliberations toward the decision that have been deemed violations of the open meetings act.”
The only communication board members can have that would not be in violation of the open meetings act would be fact-finding inquiries.
“As members of the board, you are entitled to engage in fact finding, but you need to be careful with conversations and dialogs between yourselves or among yourselves,” Pirtle said.
He recommended establishing a means of communication, such as a secure area on the city’s website, where officials can log on and communicate with each other. The public would be entitled to a print out of the comments by written request only.
When fact finding with one another, city administrator David Rutherford cautions against slipping into deliberations.
“When you start doing fact finding, it’s real easy to get your facts and question, ‘What do you think we need to do about that?’ Now, you are crossing the line. You are beginning a discussion leading to deliberation on making a decision.”
Officials can avoid allegations of open meetings violations by getting their information through the city administrator.
“Ideally, chairmen of each committee will work with me about arranging meetings, what they want to talk about, and the information they need sent to each committee member,” said Rutherford. “I’m not trying to do your job. I’m trying to do my job by trying to help you get the information that you need so we can avoid accusations of public meetings violations.”
When it comes to public notice about open meetings, some board members have discussed increasing the notice from a few days to two weeks. Pirtle says board members can set their own notice requirement, but they need to be careful.
“Municipalities have gotten into trouble when they have developed their own guidelines for notice and don’t follow them,” he said. “Whatever you do you need to do with an eye toward the exceptions that come along every now and then.”
A change in procedure was suggested after a complaint was made to the Tennessee Comptroller of the Treasury regarding the city’s Sept. 25 meeting when officials renewed Rutherford’s contract. The meeting’s agenda did not mention the measure, which was sent to the full board by Finance Committee members who met earlier that night and made the changes.
According to Pirtle, Finance Committee members were discussing proposed changes to the contract by way of emails prior to the meeting because those were sent to him asking for his opinion on the legality of the changes.
“I know David’s contract, which was the subject matter of the complaint, that all the members of that committee were on an email chain that had circulated to me for a legal standpoint at least a couple or three weeks before that meeting,” said Pirtle. “So, I know all those members in that committee were in the loop on that.”
Pirtle says if board members were required to communicate through an established channel that could be viewed by all those on the board, no member would be out of the communication loop.