|Legal Opinion: |
Text of Document: December 12, 1997
You have the following question related to the suit brought by the mayor against the board of mayor and aldermen: Can one annual publication of notice of the regular monthly meetings as being the first Thursday of every month serve as sufficient notice (under the Open Meetings Law)?
It has generally been the MTAS position that annual notice of regular monthly meetings is sufficient notice under the Open Meetings Law. However, I have been unable to find any case law directly on that point. Some case law does, however, support the proposition that the notice is adequate if it serves the function of the statute. You have a good argument that in the city's case it did.
Tennessee Code Annotated, section 8-44-103, provides that:
(a) NOTICE OF REGULAR MEETINGS. Any such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution shall give adequate public notice of such meeting.
(b) NOTICE OF SPECIAL MEETINGS. Any such governmental body which holds a meeting not previously scheduled by statute, ordinance, or resolution, or for which notice is not already provided by law, shall give adequate public notice of such meeting.
(c) The notice requirements of this part are in addition to, and not in substitution of, any other notice required by law.
The question of whether there has been "adequate public notice" in Tennessee is determined by a totality of circumstances. In Memphis Publishing Company v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974), the Tennessee Supreme Court declared that, "Adequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public." [At 513.] [Emphasis is mine.] [Also see Neece v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990).]
Other states that have considered the question of whether adequate public notice has been given of a meeting have adopted a combination of a totality of circumstances and a "substantial compliance" rule. The policy reasons supporting the substantial compliance rule fit the totality of circumstances rule standing by itself. In Stelzer v. Huddleston, 526 S.W.2d 710, there was not literal compliance with the Texas Open Records Law. In declaring that the notice was adequate, the Court observed that:
The rationale of the substantial compliance rule is that while the notice provisions in statutes are mandatory, they are essentially procedural; that rigid adherence to such a procedural mandate will not be required if it is clear that a substantial compliance provides realistic fulfillment of the purpose for which the mandate was incorporated in the statute. A determination of the applicability of substantial compliance will, of course, depend on the circumstances of each case. [At 713.] [Emphasis is mine.]
In Furlong v. Manning, 514 A.2d 860 (Super. Ct. N.J. 1986), written notice to the newspaper of a public hearing was required by statute. The government in this case gave face-to-face notice. In upholding the adequacy of the notice, the Court declared that:
I find, therefore, that a face-to-face communication of notice to newspaper representatives is an acceptable mode of transmittal under the Open Public Meetings Act and is not repugnant to the purpose of the statute, namely, adequate public notice. [At 862.]
Rhea v. City of Gainesville, 574 So.2d 221 (Fla. App. 1 Dist. 1991), involved an open meetings statute that did not contain a specific notice requirement. The Court said this about that statute:
Although the statute does not contain a specific notice requirement, it has been held that "reasonable notice" of a public meeting is mandatory in order for the meeting to be public in essence. [Citations omitted.] In Yarborough v. Young, 462 So.2d 515 (Fla. 1st DCA 1985), the court found that three days’ notice of meeting constituted reasonable notice. And in a 1973 attorney general’s opinion, it was stated that the meaning of the term “due public notice” would vary depending upon the fact situation, but that its purpose was to apprise the public of the pendency of matters that might affect their rights, afford them the opportunity to appear and present their views, and afford them a reasonable time to make an appearance if they wished. [Citation omitted.] [At 222.] [Emphasis is mine.]
Does an annual notice of regular meetings satisfy the purpose of the Tennessee Open Meetings Law? Arguably it does, particularly with respect to the meetings at issue. The policy of the Tennessee Open Meetings Law is that "the formation of public policy and decisions is public business and shall not be conducted in secret." [Tennessee Code Annotated, section 8-44-101.] With respect to the annual notice of regular meetings of the board, that notice fulfilled the policy of open government. The disputes between the mayor and the board were well-known and well publicized. The date and time of the regular meetings were contained in your municipal code [Section 1-101]. The citizens of the city were "fairly informed" of those meetings and had ample opportunity to attend those meetings of the board of mayor and aldermen and to present their views. In fact, as I understand it, there were no shortage of those views.
This is the best that we have been able to do on this issue.
Sidney D. Hemsley
Senior Law Consultant