Open Meetings Law

The Sunshine Law or Tennessee Open Meetings Act (hereinafter "TOMA") establishes "that the formation of public policy and decisions is public business and shall not be conducted in secret." T.C.A. § 8-44-101.

The law applies to formal meetings that require a quorum and to informal meetings of two or more members of a governing body, if the members have the authority to make decisions for or recommendations to a public body. T.C.A. § 8-44-102. If the participants in the meeting deliberate toward a decision or make a decision on public business, the meeting is required to be open to the public, unless there is a provision within State law that authorizes the meeting to be closed. Id. Thus, for example, courts have found retreats are subject to TOMA if public business will be discussed or decided upon by multiple members of a governing body (See Neese v. Paris Special Sch. Dist., 813 S.W.2d 432 (Tenn. Ct. App. 1990)) because there is no provision in state law that authorizes this type of meeting to be closed.

Meetings required to be open under TOMA are governed by several procedural requirements:

TOMA requires "adequate public notice" for both regular and special called meetings. T.C.A. § 8-44-103. There is no statutory definition of what constitutes "adequate," but the courts appear to have adopted a "totality of circumstances" test to help determine whether notice is adequate under a particular set of facts.

T.C.A. § 8-44-110 states that at least forty-eight (48) hours prior to a regular meeting, a "local governmental body" shall make available to the public, at no charge, the agenda for the upcoming regular meeting in a place accessible to the public. The agenda must reasonably describe the matters to be deliberated or acted upon during the public meeting. "Local governmental body" is defined as legislative bodies, regional and municipal planning commissions, boards of zoning appeals, public utility boards, industrial development boards, housing authorities, regional and municipal airport authorities, county election commissions, budget committees of legislative bodies, governing bodies of local education agencies, and any other "local governing body" that has the authority to make binding decisions or the ability to appropriate funds. Further, this statute requires a local governmental body that maintains a website to make the agenda available to the public through the website.

T.C.A. § 8-44-112 provides that a governing body, for each public meeting, shall reserve a period for public comment to provide the public with the opportunity to comment on matters that are germane to the items on the agenda for the meeting and on any matter that is germane to the jurisdiction of the local governing body, regardless of whether such matter is an item on the agenda for the meeting.

While T.C.A. § 8-44-108 permits certain state bodies to meet using electronic means, this provision of TOMA generally does not apply to meetings of municipal governing bodies. Nevertheless, other statutes outside TOMA allow municipal legislative bodies to meet using electronic meetings. T.C.A. § 6-54-149 permits municipal legislative bodies, by 2/3 vote, to allow a member to join meetings electronically if the member cannot be present due to a family or medical emergency, military service, or inclement weather. The statute contains requirements for electronic participation, including advanced notice to the public and live streaming of the meeting. No member may join a meeting electronically more than 2 times per year, and no more than 20% of a governing body, not to exceed 3 members, may join a meeting by such means. A quorum must be physically present at the meeting location. Further, T.C.A. § 6-54-143 permits municipal legislative bodies to pass an ordinance, by 2/3 vote, to allow a "service member" (as defined by the statute) who is also a member of the legislative body and deployed for 13 months or less, to attend meetings of the body via two-way electronic audio-video communication during the deployment. The member is also allowed to vote and receive compensation for attendance. However, only one service member at a time may attend and vote using the two-way communication.

Finally, at meetings covered by TOMA, all votes must be public. Secret ballots are not permitted. T.C.A. § 8-44-104(b).

Any action held by a court to have violated the Sunshine Law is void, unless the action is related to public debt. T.C.A. § 8-44-105. If a citizen successfully sues a city/town for a TOMA violation, the court may issue an injunction and impose penalties. The court retains jurisdiction over the governing body for a year, and the governing body must submit semiannual compliance reports. T.C.A. § 8-44-106.

The following gatherings are not required to be open to the public under the TOMA:

• On-site inspections of projects or programs (T.C.A. § 8-44-102(b)(2)(A));
• Chance meetings of two or more members of a governing body, if the members do not deliberate towards or make a decision on public business (T.C.A. § 8-44-102(c));
• Executive sessions conducted for the purpose of interviewing "director-level staff" as defined by statute (T.C.A. § 8-44-102(e));
• Strategy sessions of a governing body in labor negotiations, although actual labor negotiations must be conducted in public (T.C.A. § 8-44-201);
• Meetings of school boards to hear student suspension appeals (T.C.A. § 49-6-3401(c));
• Meetings of public hospital boards to discuss and develop, but not to adopt, marketing strategies, strategic plans, and feasibility studies (T.C.A. § 68-11-238); and
• Meetings related to school safety and security plans (T.C.A. § 49-6-804(c)).

The courts have also established narrow parameters related to when multiple members of a governing body can go into executive session with the city/town attorney. Multiple members of a governing body can go into a closed gathering with the city/town attorney when:

• The discussion concerns a pending lawsuit or a pending controversy that is likely to result in litigation;
• The governing body is a named party;
• The members of the governing body provide facts about the lawsuit to the city/town attorney and the city/town attorney provides the members legal advice based upon the facts presented (See Van Hooser v. Warren Cnty. Bd. of Educ., 807 S.W.2d 230 (Tenn. 1991); Cooper v. Williamson Cnty. Bd. of Educ., 746 S.W.2d 176 (Tenn. 1987); Smith Cnty. Educ. Ass'n v. Anderson, 676 S.W.2d 328 (Tenn. 1984)); and
• The governing body does not deliberate towards and/or make decisions related to the subject of the executive session within the executive session; the governing body deliberates towards and/or makes decisions related to the subject of the executive session in an adequately noticed public meeting.

Finally, state law makes clear telephone calls, emails, text messages and all other electronic communications exchanged between multiple members of a governing body related to a public business are generally prohibited; however, certain governing bodies are permitted to establish Internet forums after receiving approval from the Office of Open Records Counsel. T.C.A. § 8-44-109.