|Legal Opinion: |
Text of Document: November 14, 1992
You are an alderman of the City, and your questions are:
1. What is the meaning of "adequate notice" under the Open Meetings Law?
2. Was three hours adequate notice of a meeting in which the city made a written offer to buy certain property, and the owner of the property made a written acceptance of the offer? I do not think it is necessary here to detail the facts related to the property owner and the property in question; those are well-known by everyone.
3. What is the effect of action taken at a meeting in which a violation of the Open Meetings Law occurred?
4. Does an illegal meeting make the minutes illegal, and act as a bar to their approval, or represent a reason they should not be read and approved by the city council.
Tennessee Code Annotated, section 8-44-103 requires that "adequate public notice" be given of both regular and special-called public meetings. Unfortunately, what constitutes adequate public notice has never been specifically defined by the courts. However, in Memphis Pub. Co. v. City of Memphis, 513 S.W.2d 511, 513 (Tenn. 1974), it was said that "[A]dequate 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."
That standard was applied in the recent case of Neese v. Paris Special School District, (Tenn. Ct. App., filed at Jackson, May 8, 1990). There, the Tennessee Court of Appeals, Western Section, looked at the time frame of the notice and importance of the issue in question in determining whether adequate public notice had been given. Because newspaper and radio notice had been given of the meeting in that case approximately a month in advance, Neece does not directly help us very much with respect to the time frame.
However, I am absolutely certain that under the totality of circumstances standard, three hours notice of the meetings is inadequate. Even setting the issue of the importance of the issue underlying your question, there can be few meetings of any municipal governing body in Tennessee preceded by only three hours notice that would constitute adequate public notice. But based on my knowledge of the issue involved in the special called meeting, and the intense controversy surrounding the city, the property and the property owners in question, it is doubly certain that inadequate notice of the meeting was given.
Tennessee Code Annotated, section 8-44-105 prescribes the effect of a meeting at which inadequate public notice is given:
Any action taken at a meeting in violation of this part shall be void and of no effect; provided, that this nullification of actions taken at such meetings shall not apply to any commitment, otherwise legal, affecting the public debt of the entity concerned.
Under this provision, the buy-sell agreement in question is undoubtedly null and void; that provision means what it says. However, as I understand it, no contract between the parties has been signed and none is contemplated. If that is true, from a practical standpoint, the fact that the agreement is null and void may not mean anything. The Open Meetings Law can be enforced by "any citizen of the state," in the circuit and chancery courts (and other courts having equity jurisdiction), "which have the "jurisdiction to issue injunctions, impose penalties, and otherwise enforce the purposes of this part." But unless some citizen does that, it appears to me that the illegal meeting dies a natural death.
The city council can "resurrect" the agreement at a later date by doing so in a legally called regular or special meeting. In Neece, the Court said that:
We do not believe that the legislative intent of this statue was forever to bar a governing body from properly ratifying its decision made in a prior violative manner. However, neither was it the legislative intent to allow such a body to ratify a decision in a subsequent meeting by a perfunctory crystallization of its earlier action. We hold that the purpose of the act is satisfied if the ultimate decision is made in accordance with the Public Meetings Act, and if it is a new and substantial reconsideration of the issues involved, in which the public is afforded ample opportunity to know the facts and to be heard with reference to the matters at issue.
The illegality of the meeting did not somehow make the minutes of the meeting illegal, and does not act as a bar to their reading and approval, and does not represent a reason they should not be read and approved. Whether action taken at a meeting was legal or illegal has nothing to do with what happened at the meeting. The function of minutes is to record what happened at meetings; they should not be wiped out, altered or reconstructed, but read and approved in that light. Under Tennessee Code Annotated, section 8-44-105 it is the "action" taken at meeting held in violation of the Open Meetings Law, not the record of what action is taken, that is null and void.
The same provision preserves commitments made in meetings held in violation of the Open Meetings Law, otherwise legal, affecting the public debt. Although the meeting at issue did not involve such a commitment (although possibly it was ultimately headed in that direction), that provision adds weight to the argument that what happened in such an illegal meeting should be recorded and reflected in the minutes. If accurate minutes of illegal meetings are not to be recorded, read and approved, a record of the commitments affecting the public debt made in such meetings would not be preserved in the minutes. In Neece itself, the only way the Court had of knowing what happened during the meetings at issue in that case way by looking at the minutes of those meetings.
The facts of your question raise the issue of to whom the minutes belong. Due to time constraints I do not have time to cite any law supporting my position on the minutes or to address the question of to whom they belong, but I will be glad to do so at a later time upon your request.
If I can help you further in this or any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant