March 30, 2007
Dear City Recorder
You have the following questions which stem from what I told the TAMCAR class yesterday:
1. Can the city’s governing body meet with its attorney to discuss pending litigation without first holding a regular or special meeting that complies with the notice requirements of the Open Meetings Law?
The answer is apparently yes. That answer is contrary to the answer I gave you on this question at TAMCAR. I said that Tennessee’s Open Meetings Law would require a city’s governing body to convene a meeting that meets the requirements of that Law before it goes into closed session to discuss pending litigation with its attorney. But that answer is not correct under the Tennessee Supreme Court’s decision in Smith County Education Association v. Anderson [Superintendent of Schools for Smith County], 676 S.W.2d 328 (Tenn. 1984), which is discussed below. I had forgotten what kind of meetings were involved in that case.
2. What is pending litigation?
The best answer I can give you derives from Van Hooser v. Warren County Board of Education, 807 S.W.2d 230 (Tenn. 1991). It appears to be a pending controversy that is likely to result in litigation between the parties to the controversy. That is the same answer I gave yesterday and it is the closest I can come to the answer.
Analysis of Question 1
In Smith County Education Association v. Anderson, above, the Tennessee Supreme Court itself described the two kinds of meetings that were not called in accordance with Tennessee’s Open Meetings Law:
Complaint is made of two particular meetings. The first one occurred on September 3, 1982, when after a hearing in the case in Chancery Court, the Board, its attorney, and Dr. Fields met for twenty minutes behind closed doors in the second floor witness room at the courthouse. No notice of the meeting was given. [My emphasis.]
The second alleged violation occurred on the night of September 16, 1982, when the Board and Dr. Fields met with the Board’s attorney at his office from 7:00 to 9:25 p.m. Rick Dringenburg, husband of the SCEA president, and Chris Baxter, a reporter for the local paper, watched Board members enter and leave the office and observed the meeting through the office window. Again, no notice was given of the meeting . [My emphasis.] [At 331]
The Court held that neither meeting was subject to Tennessee’s Open Meetings Law. For that reason, notice of such meetings was not required to be given, and obviously the board was not required to go into a closed session from a meeting called in accordance with Tennessee’s Open Meetings Law.
Analysis of Question 2.
In Smith Court Education Association v. Anderson, above, the Tennessee Supreme Court held that board of education could consult with its attorney in a closed meeting to discuss “pending litigation.” In that case, a lawsuit had already been filed by the Smith County Education Association against Anderson [acting in his capacity as Superintendent of the Smith County Board of Education]. But in Van Hooser v. Warren County Board of Education, 807 S.W.2d 230 (Tenn. 1991), the Warren County Board of Education met with its attorney in closed session to discuss legal issues involving one of its school teachers. However, no lawsuit had yet been filed by either party. Eventually Van Hooser filed a lawsuit and alleged that the Warren County Board of Education had, among other things, violated the Open Meetings Law. The Warren County Board of Education argued that:
...there was no violation of the Open Meetings Act. They contend that the attorney-client exception recognized in Smith County Education Association v. Anderson, 676 S.W.2d 328 (Tenn. 1984) applies in this situation because, although there had been no charges preferred against Van Hooser as of August 16, 1983, there was a pending controversy that was likely to result in litigation between the school district and Van Hooser..... [At 237]
The Tennessee Supreme Court held that “ We agree with the defendant’s assertion that the board has a right to meet with its attorney to discuss the pending controversy pertaining to Marilyn Van Hooser.” [At 237]
It appears that in Warren County Board of Education v. Van Hooser, the Court broadened the right of a government to meet in closed session with its attorney to discuss a “pending controversy that [is] likely to result in litigation....” That is all the Court says on that point. It gives no further clue as to how a government decides what kind of controversy is likely to result in litigation. Presumably, some good faith on the part of the government is involved in reaching such a decision.
Incidentally, the Court did hold that Warren County had violated the Open Meetings Law because the board had made decisions or deliberated toward a decision in the course of discussing the controversy with its attorney.
Early next week, I will send out a similar letter to all the clerks and recorders who attended the TAMCAR class, but I knew you needed this one right away.
Sidney D. Hemsley
Senior Law Consultant