|Legal Opinion: |
Text of Document: March 6, 1992
I have read and listened in detail to the information you have given me in
writing and in several telephone calls about events in the City. I have tried to be a sympathetic
listener, but much of the information relates to a pending lawsuit. As I indicated to you on the telephone, I cannot make any comments about the pending lawsuit; the last thing the city needs in that respect is another cook in the kitchen. The remainder of your complaints appear to boil down to basically three categories:
1. Violations of the Open Meetings and Public Records Laws by the city.
3. Attempts to remove you from the board of zoning appeals.
3. Disrespectful treatment by the board of mayor and aldermen,
including failure to notify you of meetings of the board.
You must realize as I answer these complaints that I have no personal
knowledge or verification from other sources that any of the above events occurred, except relative
to one charge of a violation of the Open Meetings Law; I am simply assuming for the purposes of my
answers that they did happen. I have tried to answer your complaints with as little legal mumbo-jumbo as possible.
There is no question but that the City is subject to both the Open
Meetings and the Public Records Law. Your principal complaints with regard to the Open Meetings
Law is that special meetings are called with inadequate notice. The courts have not clearly
defined what constitutes "adequate notice" within the meaning of that Law. They appear to have
adopted a "totality of circumstances" test to determine if violations of that law occurred. Certainly,
it is safe to say that absent genuine emergencies, special meetings called without notice or only
a few hours notice are generally illegal under the totality of circumstances test. If such meetings
are being held by public bodies in the City, your complaint is justified. On its face, if the copy of
the notice you sent me dated January 27, 1992, represents a call for a meeting of the town governing
body for 6:30 P.M. January 27 by the mayor to discuss the closing of a railroad crossing at a certain
intersection, the notice is patently inadequate. That is all the more true if, as you complain, the notice
was not posted until 3:00 P.M. January 27.
Your principal complaint with respect to the Public Records Law is that
municipal employees will not let you see certain documents unless you go through the city
administrator. The Public Records Law clearly permits you to examine virtually all municipal records.
Every citizen of Tennessee has the same right. However, the Public Records Law permits cities to
establish reasonable rules and regulations for the viewing and copying of public records. There has
never been any litigation on the question of what are reasonable rules and regulations within the meaning of that Law.
I do not know how the courts would resolve the question of whether it is a reasonable rule and regulation to require a member of a municipal governing body to go through the city administrator as a condition to looking at municipal records. However, I have heard city managers, city administrators, recorders and other administrators make some convincing arguments for the policy of requiring elected officials to come through them to obtain municipal records. They are responsible to the governing body for defending and explaining what is in, or is not in, municipal records; therefore, they want to know what records are at issue on the part of an elected official so that they can carry out that responsibility without getting blind-sided. That reflects a wise policy of anticipating and managing problems before they happen. In addition, many municipalities do not have the staff to permit citizens or officials to inspect any public record at any time.
Such restrictive policies interfere with the right or a citizen or a member of a governing body to spontaneously and immediately see public records. Surely the courts would give the policies behind spontaneous and immediate access to public records some consideration. The courts would have to find a balance between the interests of records management and the interests of records access.
Nothing you have said about the mayor's attempt to remove you from
the board of zoning appeals (BZA), suggests that an actual attempt has been made. However, in my
opinion, neither the board of mayor and aldermen nor the mayor can remove you from the BZA.
Tennessee Code Annotated, section 13-7-205 prescribes how members of the BZA are appointed:
The chief legislative body may create a board of zoning appeals of three (3), five (5), seven (7), or nine (9) members, may specify the mode of appointment of such members of such board and their terms, which terms shall be of such length and so arranged that the term of one (1) member shall expire each year, or the chief legislative body may designate the planning commission of the municipality as the board of zoning appeals...
Under that statute, the board itself can make appointments to the BZA or
designate the mayor to make the appointments. The general rule is that the power to appoint carries
with it the power to remove, but that a statute may provide otherwise. I believe the above statute
impliedly does provide otherwise. It requires appointments to the BZA for specific terms, arranged so that the term of one member expires each year. In my mind the clear intent of the legislature in that
provision is to insure the smooth continuity of the BZA, and to insulate it from the whim and caprice of the appointing body or person.
I am at a complete loss to tell you what to do about disrespectful treatment by the board and by municipal employees. The board functions as a legislative unit, and if you don't have that unit on your side, I know of no way you can legally command its respectful treatment. You are legally entitled to carry out your functions as a member of the town governing body, but the courts are loathe to interfere in the political name-calling, curt and rude treatment, and the political isolation of particular legislators that goes on inside political governing bodies in the United States. (That problem is probably worse in England, which is supposed to be a bastion of good breeding and manners.) The other day on television I saw a U.S. Congressman subjected to curt, disrespectful treatment by the U.S. Secretary of Defense in a meeting of a congressional subcommittee, of which the Congressman is a member. I was astonished that the Secretary of Defense even contemptuously addressed the Congressman by first name rather than by title and last name. The Congressman has little defense against such treatment except through the punishment the subcommittee and/or the Congress collectively can impose upon the President's programs.
I think you are in a similar position.
The complaint of the failure of the governing body to give you notice of special meetings is more serious. The Municipal Charter, section 7 requires that:
Two-thirds (2/3) of the Board of Aldermen may call a special meeting if the mayor refuses to call a
meeting. Two-thirds (2/3) of the Board shall sign a petition requesting a meeting, then the Chief of Police shall notify other members of the board of the meeting. Only the business specified on the petition can be acted upon at any special meeting.
Needless to say, that provision is not clear as to the mayor's power to call a special meeting absent a request for one by the board. However, section 16 of the charter appears to clear up that ambiguity by providing that among the powers and duties of the mayor is the power to "call special sessions of the Council when he may deem it expedient..."
However, that power is not unlimited and must respond to other requirements of the law. One of those requirements is the Open Meetings Law. It seems to me that an alderperson has a good argument that extremely short notice of a special meeting by the mayor constitutes inadequate notice to an alderperson as well as to members of the general public, and that under some circumstances, the failure of the board, or the board's agents, to notify one or more members of the board, particularly if it is done deliberately and regularly, has similar consequences even if a quorum is present at the meeting.
I hope this information helps you perform your job a an alderperson. I am sorry that I can provide you no more solace than that.
Sidney D. Hemsley
Senior Law Consultant