November 9, 2006
You have the following question: Can the city council change the agenda of a special meeting, during the meeting?
Although older Tennessee and other state case law supports the proposition that the city council can add to the agenda of special meetings during the meeting, Tennessee’s Open Meetings Law, and recent case law that interprets it, probably prohibit the city council from such actions.
The City is incorporated under Private Acts of 1927 as amended. Article IV, § 2 of that charter provides that “Whenever in the opinion of the Mayor or any three (3) councilmen, the welfare of the City demands it, the Recorder shall call a special meeting of the Council.” Article IV, § 10, says that: “Said Council may determine the rules of its proceedings, subject to this Charter.”
Section 1-103 of the Municipal Code, provides by ordinance that:
The rules of order and parliamentary procedure contained in Robert’s Rules of Order, Newly Revised, shall govern the transaction of business by and before the governing body in its meetings in all cases to which they are applicable and in which they are not inconsistent with provisions of this charter or this code.
RRONR, § 9, says this about special meetings:
A special meeting (or called meeting) is a separate session of a society held at a time different from that of any regular meeting, and convened only to consider one or more items of business specified in the call of the meeting. Notice of the time, place and exact purpose of the meeting must be mailed to all members a reasonable number of days in advance. The reason for a special meeting is to deal with important matters that may arise between regular meetings and that urgently require action by the society before the next regular meeting....With the exception of motions that relate to procedure without direct reference to a particular substantive item of business, only business mentioned in the call of a special meeting can be transacted at such a meeting....
It is true that municipal governing bodies generally have a great deal of control over their agendas both before a meeting and after a meeting. With respect to the effect of an agenda promulgated before a regular meeting, RRONR, § 40 says:
In some organizations, it is customary to send each member, in advance of a meeting, an order of business or agenda, with some indication of the matters to be considered under each heading. Such an agenda is often provided for information only, with no intention or practice of submitting it for adoption. Unless a precirculated agenda is formally adopted at the session to which it applies, it is not binding as to detail or order of consideration, other than as it lists preexisting orders of the day, or conforms to the standard order of business, or an order of business prescribed by the rules of the organization. [Emphasis is mine.]
With respect to agendas during meetings, in Bradford v. City of Jellico, 1 Tenn. Chan. App. 700 (1901), it is said with respect to rules of procedure that:
....these rules of order for the government of the city council are mere rules of procedure adopted by itself for its guidance and convenience. They are no part of its legislative or legal charter, and rest upon no positive prescription of the statutes of the state. Being rules of procedure adopted by the council for its own convenience and government in the enactment of ordinances, it is competent for the council to waive them, and certainly this is so with the consent of all the council present. This consent is assuredly sufficient, if it be expressly given, and such consent, in our opinion, may be implied. If an ordinance be legally passed on two readings at the meeting at which it is introduced, and at the next meeting it is put upon its passage on its third and final reading without objection by any member of the council present, based upon its nonreference to a committee, this is, in legal effect, equivalent to a waiver of the rule requiring a reference to a committee except by unanimous consent of the council. [At 719.]
Under Bradford, it appears that if the city council has adopted rules of procedure governing the agenda, it could, simply by implied unanimous consent (or by any other means prescribed by the rules), suspend those rules.
That case does not indicate whether the city council adopted its rules of procedure by ordinance or by resolution. However, its language supports a good argument that unless the charter or other statute prescribes a procedure, the council can formally or informally suspend its rules to bring a question to a vote whether it adopted those rules by ordinance or by resolution, and that if the question got before the city council without objection, and received the number of votes prescribed for passage, the question passed. In other words, unless the governing body violated the city charter or a statute, the council can expressly or impliedly remove its own procedural impediments to a vote on a question.
That conclusion is supported by Saylors v. City of Jackson, 575 S.W.2d 264 (1978). There the mayor, as presiding officer, moved for the adoption of an annexation ordinance. Not receiving a second within a period of about four seconds, he declared the motion to have died for lack of a second. A council member protested to the mayor that he had acted too quickly, declaring that he had intended to second the motion. The motion was restated by the mayor, seconded by the protesting council member, and unanimously approved by the board. Rejecting a challenge to that procedure on the ground that it violated Robert’s Rules of Order, the Court said:
Even if this irregularity violates Robert’s Rules of Order, that tome specifically provides that where action is unanimous, a violation of the rules is without consequence. Robert’s Rules of Order, section 48, at 202-03 (rev. Ed. 1971) states, ‘By general, or unanimous, or silent [emphasis is mine] consent the assembly can do business with little regard for the rules of procedure, as they are made for the protection of the minority, and where there is no
minority to protect, there is little use for the restraint of the rules, except as such protect the rights of absent members, or the right of secret vote.’ [At 267]
It is also said in Rutherford v. Nashville , 79 S.W.2d 581 (1935), that it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure.
The same rule is also supported by 4 McQuillin, Municipal Corporations, Section 13.42:
In the absence of legal provisions or restrictions, municipal legislative body may, from time to time, adopt and change its own rules or parliamentary usage as to procedure. The charter or a statute applicable may prescribe rules for the government of the proceedings of councils, municipal boards, etc., and often times the organic law provides that the council or representative body may adopts its own rules of action. The council may abolish, suspend, modify or waive its own rules. This also may be done by
implication, when action in hand is not in accordance therewith. Of course, it cannot disregard mandatory charter or statutory provisions. [Emphasis is mine.]
Those cases and authorities support the proposition that if a question comes to the board, under its own rules, even in procedurally defective form, if there is no protest made on procedural grounds, and the board votes on the question, the vote will not be disturbed because of any procedural irregularities; provided that the city’s charter or general statutes governing procedure are not violated.
More specifically, on the questions of whether a call for a special meeting must state its purpose, and whether the governing body of the city must stick to the purpose of the call, 4 McQuillin, § 13.37.20 says that:
Where the charter is silent as to stating the purpose of special meetings, the judicial decisions present some conflict as to such requirement. Sometimes, the notice is not required to specify the purpose of the meeting. However, if the charter requires that the notice shall specifically state the business for which the body has been convened, the special meeting may act only on subjects so stated....
The City’s Charter does not specifically state that the notice of the special meeting state the business for which the body has been convened. For that reason, and for the reasons noted above, it can be argued that the city’s governing body has the right to add to the agenda of special meetings.
But all of the cases cited above were handed down before Tennessee’s Open Meetings Law was adopted in 1974, and none of them appear to involve special meetings.
Tennessee’s Open Meetings Law is codified at Tennessee Code Annotated, § 8- 44-101 et seq. Tennessee Code Annotated, § 8-44-102 requires that “All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee. It also requires that “Any such governmental body which holds a meeting 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. Tennessee Code Annotated, § 8-44-13 also requires:
(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 meetings.
At first glance, it is easy to conclude that Tennessee’s Open Meetings Law is satisfied with respect to special meetings if the governing body in question gave adequate advance notice of the special meeting, particularly in the case of a city whose charter does not restrict special meetings to the subjects expressed in the call for the special meeting.
But the Tennessee case of Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990), is cause for a second glance. There, the school board argued that at a regular meeting of the board of education on January 17, 1989, notice was given of a meeting of the school board to be held at Ken-Lake State Park in Kentucky on February 17-18. The minutes of the January 1 meeting did not indicate the notice of the February 17-18 meeting, but a newspaper reported that at the January 17 meeting the school board agreed on a meeting on February 17-18
at Ken-Lake State Park, and that two items would be discussed: a proposed merger of the county and city school systems, and a drop in the school district’s enrollment. A local radio station also reported that the board at its January 17 meeting voted to hold a retreat in Kentucky on February 17 and 18.
But when the school board met on February 17-18 in Kentucky, it discussed clustering of the schools in the system.
The Court upheld the plaintiff’s argument that the school board’s February 17-18 meeting violated Tennessee’s Open Meetings Law. The Court’s reasoning is encapsulated in the following language:
We are directed by the [Tennessee] Supreme Court to examine the totality of circumstances in order to determine whether notice was proper. The issue of clustering was of pervasive importance. Adopting Dr. Vick’s clustering plan is arguably the most important action taken by the Board in many years. The record shows, by means of newspaper articles, that this was a very emotional issue for the citizens who have children in the PSSD. In its brief the PSSD states that the Tennessee law does not require notice of a public meeting to include an agenda. We believe, however that under these circumstances, the public had a right to be informed that the issue of clustering would be extensively discussed at the Ken-Lake meeting. If the major issues discussed at the meeting were actually those stated in the newspaper article quoted above, perhaps there would be no interest in traveling to Kentucky for a two-day meeting. On the other hand, if the general public was aware that the major issue was not as reported in the newspaper, but rather the issue of clustering, there would likely be more interest in attending. Certainly “adequate public notice under the circumstances” is not met by misleading notice.... [At 435]
The school board meeting held in Kentucky was close to what could be called a special meeting. Neese plainly stands for the proposition that a governing body does not have absolute control over its agenda in special meetings, as the older cases suggest. Even had no agenda of the “special meeting” been published in that case, and had the school board discussed, and deliberated toward a decision on, clustering, there is no doubt the case would have turned out the same way.
The unreported case of Englewood Citizens for Alternate B v. Town of Englewood, 1999 WL 419710 (Tenn. Ct. App.) is even more emphatic about what kind of notice must precede a special meeting under Tennessee’s Open Records Law, even if the city’s charter is silent on the question of whether the call for a special meeting must state the purpose of the call.
In Town of Englewood, the board of commissioners voted in a special meeting to endorse Alternate Route A in a state highway department project to widen a certain highway. The plaintiffs sued the city on the ground that the board of commissioners violated the Open Meetings Law. Citing Tennessee Code Annotated, § 8-44-103(b), which contains the NOTICE OF SPECIAL MEETINGS I cited in full above, the court adopted a three prong test to determine whether a special meeting meets the adequate notice requirement of that statute under the “totality of circumstances,” test. I will not discuss the first or third prongs of the test because they are not at issue in the City’s case. But the second prong of the test is that “the content of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken [Emphasis is mine.] This is what the Court said about the contents of the notice for special meetings:
In order for the notice given by the town to meet the second prong of the adequate notice inquiry, the contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken. In this instance, the contents of the Town of Englewood’s notice read:
1. Letter to State concerning HWY 411
2. Police Salary Supplement Pay
3. City Recorder.
We find that under the circumstances presented the content of this notice was so lacking that a person of reasonable intelligence would not adequately be informed by the cryptic statement “Letter to State concerning HWY 411.” Instead a more substantive pronouncement stating that the commission would reconsider which alternative to endorse for Highway 411 should have been given. [at 3]
In support of its holding the Court pointed to the language I cited from Neese, above.
Finally, the Court concluded that:
We agree with the Western Section [of the Tennessee Court of Appeals] that the general public must be made aware of the issues
to be deliberated at the special meeting through notice designed to inform the public about those issues. The notice given by the Town of Englewood is inadequate under the circumstances because it does not reasonably describe the purpose of the meeting or the action to be taken with respect to the letter to the state. The notice is bereft of any explanation of what that letter would consist of or the fact that the town commissioners had decided to reconsider the issue of Highway 411's path. A misleading notice is not adequate public notice under these circumstances. See Neese, 813 S.W.2d at 436. We hold that with respect to the content of the notice provided by the town, adequate public notice was not provided to the community members of Englewood. [At 4].
Unreported cases do not have the precedential weight of reported cases, but Town of Englewood is still persuasive. It also closely follows Neese, which is a reported case.
The Court in Town of Englewood did not even ask what the city’s charter said with respect to whether the notice for special meetings were required to contain the purpose of the call. It is clear that if “the contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken” in order to meet the second prong of the test for adequate notice of special meetings, there is no way that adding to the agenda during a special meeting can pass the second prong of the test, or even to satisfy Neese.
Sidney D. Hemsley
Senior Law Consultant