February 6, 2002
Re: Application of Open Meetings Law to Personnel Process
You have asked whether certain procedures used by your City in its process of hiring a police chief were subject to the state’s Open Meetings Law or Sunshine Law (Tennessee Code Annotated, § 8-44-101, et seq.). The city used advisory panels of citizens in the screening of candidates to make recommendations to the city manager on whom to hire. It is my understanding that these panels of citizens were rather informally constituted and governed and that a quorum was not required for the panel to meet or make a recommendation. Therefore, if on the appointed time of gathering, only one or two of the panel members showed up, the interviews of candidates would go forward and a recommendation could be made to the city manager. You have also asked whether one-on-one interviews between the city manager and candidates would be subject to the Open Meetings Law. In my opinion the Open Meetings Law does not apply to either of these situations.
The advisory panels of citizens do not constitute a “governing body” to which the law applies. T.C.A. §8-44-102(b)(1)(A) defines the words “governing body” to which the Law applies as “The members of any public body which consists of two (2) or more members, with authority to make decisions for or recommendations to a public body on policy or administration ....” The panels arguably meet the first part of the definition of being a public body consisting of two (2) or more members but clearly do not meet the second part of the definition of having authority to make decisions for or recommendations to a public body. The recommendations of these panels were made to the city manager who is the official under your City’s charter with authority to hire the police chief (Chapter No. 380, Private Acts of 1972, as amended, §§ 4.03 and 17.01). The city manager is not a “public body” but an administrative officer.
In Fain v. Faculty of the College of Law of the University of Tennessee, 522 S.W.2d 752 (Tenn. App. 1977), the Dean of the College of Law set up committees to advise him on administering the law school. Plaintiffs claimed that these committees could trace their ultimate origin to the Legislature and that they were therefore “governing bodies” to which the Sunshine Law would apply. The Court disagreed and held:
The committees exist by virtue of having been created by the Dean. They derive their authority from the Dean. Their authority is to make recommendations to the Dean. The Dean is not a public body, he is an administrative officer. Consequently, the faculty meetings and committee meetings of the College of Law are not subject to the provisions of the Act. 552 S.W. 2d at 754.
The parallels to your situation are obvious. In Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville and Davidson County, 842 S.W.2d 611 (Tenn. App. 1992), a group of city officials with different roles in purchasing met in the Mayor’s office with the purchasing agent to make recommendations relative to a contract. An unsuccessful bidder claimed this meeting violated the Sunshine Law. In rejecting this contention, the Court held:
[T]he group was neither created nor recognized by the Metropolitan Charter, the city ordinances, or the rules and regulations of the Division of Purchases. The group was not required to have a quorum or to deliberate, or even to make recommendations to a public body.
The decision on whether to award the contract rested with the purchasing agent. At most, the officials attending the meeting were providing the purchasing agent with their opinions concerning whether he should award the contract to the company that submitted the lowest bid. The purchasing agent could have made a decision without the meeting. Accordingly, we find that the Sunshine Law did not require this meeting to be open to the public. 842 S.W.2d at 619.
Since these panels of citizens were not making their recommendations to a public body but to an individual administrative official, the city manager, they do not fit the definition of “governing body” under the Sunshine Law.
The gatherings of the panels for interviews were not “meetings” under the Sunshine Law. T.C.A. § 8-44-102(b)(2) defines “meeting” as “the 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 on any matter.” Since no quorum was required for these panels to meet, their convening does not constitute a meeting under the plain language of the statute. According to the Court in the MARTA case above:
The Sunshine Law applies to meetings of public bodies ‘for which a quorum is required in order to make a decision or to deliberate toward making a decision on any matter.’ ... It has never been interpreted to apply to meetings pertaining to decisions made by single public officials. 842 S.W.2d at 618.
These cases also support the proposition that a “meeting” did not take place because the function of the panels was not to make a decision or to deliberate toward a decision but merely to make a recommendation for decision by the city manager, who is the ultimate decision-maker. The city manager, like the purchasing agent in the MARTA case, could make the decision without their advice.
Since no meeting as defined in the Sunshine Law took place when the panels met, there was no requirement that the convening of these panels be open to the public.
Under the plain language of the statute and the cases cited above, it is clear that the city manager is not a “governing body” and therefore that an interview between the city manager and a candidate for police chief would not be subject to the Sunshine Law. The Law simply does not apply to decisions to be made by individual public officials. MARTA v. Metro Gov. of Nashville, above.
I hope this letter answers your questions. If you have need of further assistance, however, please let me know.