|Legal Opinion: |
Text of Document: Your question is whether a meeting of a committee appointed by the Mayor is subject to the requirements of the Tennessee Open Meeting Act [“the Act”]. The newspaper article that you faxed me did not specify the name (if any) of the committee involved, but did state that it consisted of “several citizens” and was formed for the purposes of “studying issues related to the city manager question and report their findings to him.” For the purposes of this discussion, I am assuming that none of the “citizens” in the committee are members of the city's governing board.
The Act itself, found at T.C.A. § 8-44-102(b)(2) defines a "meeting" in part as "[t]he convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision in any matter..."
A "governing" body is defined in part, as "[t]he members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." That definition is broad enough to include planning commissions, boards of zoning appeals, and other city bodies and committees.
The Tennessee Supreme Court, in examining the term "public body" means, commented as follows:
It is clear that for the purpose of the Act, the Legislature intended to include any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and authority may be traced to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector. (Emphasis supplied)
Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976), rehearing denied, 540 S.W.2d 658 (Tenn. 1976). The language used by the Court in Dorrier and other cases thus looks to the whether such "committees" are created by "legislative action." See e.g. , Hastings v. South Cent. Human Resource Agency, 829 S.W.2d 679 (Tenn. Ct. App. 1991).
In other cases, the Tennessee Court of Appeals has held that the definition of a "public body" excludes individual public officials and that the Open Meetings Act does not apply to committees created by such an individual with the sole authority to make recommendations to that public body. See e.g., Fain v. Faculty of College of Law of University of Tennessee, 552 S.W.2d 752, 754 (Tenn. Ct. App. 1977) In Fain, the committees in question existed by virtue of having been created by the Dean. They derived their authority from the Dean. The committees were authorized is to make recommendations to the Dean. The Dean was not a public body, but rather an administrative officer. Consequently, the Court held that the faculty meetings and committee meetings of the College of Law were not subject to the provisions of the Open Meetings Act. See also MARTA v. Metro. Gov't. of Nashville, 842 S.W.2d 611, 618-19 (Tenn. Ct. App. 1992).
In Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville and Davidson County, 842 S.W.2d 611 (Tenn. Ct. App. 1992), the appellate court held that the open meeting requirement of the Sunshine Law did not apply to a meeting of city officials in which the officials provided a purchasing agent with their opinions concerning whether he should award a contract to company that submitted the lowest bid. In that case the group was not required to have a quorum or to deliberate, or to make recommendations to a public body, and the purchasing agent could have made decision without the meeting.
In reviewing Section 4 of your private charter, the Mayor’s duties and powers include:
That the duties of Mayor are to wit: He shall by written communication, lay before the board any information needed, and recommend such measures as he may deem expedient. He shall have a general supervision of all officers of the municipality and see that all laws and ordinances be enforced....
He shall have the Veto power over any action of the board, giving his reasons therefor in writing, but the board may, by a three-fifths of the entire board, pass the same over his veto; or if he fails to return the same on or before the next regular meeting of the board, he shall be deemed to have approved the same, and the same shall become a law without further action of the board, and every law, ordinance, resolution or vote, except on question of adjournment, shall require the approval of the Mayor before it shall have effect, except as above provided.
While your charter requires the approval of the Mayor with respect to every action, ordinance, resolution or vote, the approval can be deemed given if the Board, by three-fifths vote overrules the Mayor’s veto. Thus, it would seem that while the Mayor is given ample authority under your charter, the Board can exercise its veto power to override the Mayor’s proposals. Ultimately, the Board of Mayor and Alderman have the final decision-making power.
With respect to the committee, it appears that their meetings were not meetings of a governing body, although this fact is not clear. If one assumes that the committee does not comprise a “governing body,” then it is simply a group of citizens assembled by the Mayor acting on his own volition. That is, the formation of the committee was not created, ratified or recognized by the charter, city ordinances or resolutions of the city. And, although there are no facts that support the criterion that the group was required to have a quorum or to deliberate, the committee did report their findings to the mayor, as stated in the newspaper article. Under the foregoing factual scenario, I agree with the opinion of your city attorney in determining that the Open Meeting act is not applicable.
However, if the committee’s existence can be traced back to a resolution of the Board of Mayor and Aldermen, and if its deliberations result in making a recommendation to the Mayor which must then be ratified by the Board, (i.e., the Board actually makes the final decision on the question concerning the city manager), I would consider meetings of the committee subject to the Open Meetings Act.
As you can see, a definitive answer to your question ultimately depends upon facts that are not before me in addressing this opinion request, i.e., to what formal action, if any does the committee owe its existence: Did the Board authorize the Mayor to make the appointments? And, what is extent of the committee’s authority: Does it have the authority to make decisions for or recommendations to the city council, and not the Mayor alone?
In summary, if the creation of the committee is tied to any formal action of the municipality’s governing body and it is given the authority to either make recommendations to or decisions for that governing body, it is my opinion that such meeting of the committee would be subject to the Act.
If the Mayor made the decision to create and appoint the committee himself without any required ratification from the Board, and the committee is not discussing a question that is within the ultimate authority of the Board, then it is likely that the Act would not apply.