September 29, 2006
Dear City Manager:
You have the following question: How long in advance is the notice of a special meeting required to be given to the public?
No exact answer to this question is possible. As will be seen below, the standard under Tennessee’s Open Records Law is “adequate public notice” for both general and special meetings. Whether adequate public notice has been given depends upon the “totality of circumstances.”
Your City is chartered under Private Acts 1979, Chapter 11. Article 4, § 5 of that charter provides with respect to special meetings that, “Whenever in the opinion of the mayor or of any three (3) councilmen, the welfare of the city demands it, the recorder shall call a special meeting of the council.” No provision for advance notice of the meeting is contained in the charter.
The Tennessee Open Meetings Law codified at Tennessee Code Annotated, § 10-44-101 et seq., requires only “adequate public notice” of both regular and special meetings. [Tennessee Code Annotated, § 8-44-103] No definition of “adequate public notice” appears in the Open Meetings Law. But it is said in Memphis Publishing Company v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974), that:
We think it impossible to formulate a general rule in regard to what the phrase “adequate public notice” means. However, we agree with the Chancellor that adequate notice means adequate public notice under the circumstances, or such notice based on the totality of circumstances as would fairly inform the public. [At 512]
The unpublished case of Englewood Citizens for Alternate B v. Town of Englewood, 1999 WL 419710 (Tenn. Ct. App. 1999), provides some further guidance on what constitutes adequate public notice:
First, the notice must be posted in a location where a member of the community could become aware of such notice. Second, the contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken. And, third, the notice must be posted at a time sufficiently in advance of the special meeting in order to give citizens both an opportunity to become aware of and to attend the meeting. [At 3] [Emphasis is mine.]
Englewood Citizens involved a special meeting over the selection of a route for a highway construction project. The special meeting was scheduled for December 12 and the recorder testified that the notice of the meeting was posted on December 10 at the local post office, city hall and at a bank. The city recorder also faxed a copy of the notice to the local newspaper, but the paper did not print the notice. The notice stated “letter to State concerning HWY 411.” The Court found the locations of the posting to be reasonable, but found that
- The contents of the notice did not adequately inform the public of the purpose of the meeting. The Court declared that, “a more substantive pronouncement stating that the commission would reconsider which alternative to endorse for Highway 411 should have been given.”
- Under the totality of circumstances test, two days notice was inadequate to “fairly inform the public under these circumstances.” [At 5]
Unpublished cases do not carry the precedential weight that reported cases carry, but they should be given great consideration.
A special meeting was called to take up the dismissal of a police officer in Kinser v. Town of Oliver Springs, 880 S.W.2d 681 (Tenn. Ct. App. 1994). There is no indication in that case how much advance notice of the special meeting was given (my recollection is 24 hours), but the Court found under the totality of circumstances that adequate public notice of the meeting was given under the following facts:
The City Administrator prepared the notice of the called meeting which was signed by the Mayor. The administrator testified that he placed the notice of the called meeting, which was signed by the Mayor. The Administrator testified that he placed the notice inside City Hall “where everybody pays their water bill” and over the entrance to the police department and council room “where people come in and pay their tickets...into the police department.” The Police Chief testified that it was “our policy” to post such notices on the bulletin board at the post office, and he testified “I’m pretty sure I did.” [At 682]
The Court reasoned that “In this case, the chancellor concluded since this was a personnel matter involving one individual, the notice was adequate. We agree.” [at 682]
Thus, we have little guidance on how much advance notice of special meetings must be given under Tennessee’s Open Records law; the test is “adequate public notice,” under a “totality of circumstances” test. As I indicated above, the length of notice in Kinser was not an issue, although my recollection is that it was only 24 hours. But my recollection, even if it is accurate, cannot be relied upon for legal support.
My own view–supported by Englewood Citizens, above, is that anything less than two days advance notice is skating on very thin ice in most instances, and that where the issue is controversial and/or important, two days is probably insufficient. As Kinser indicates, how many people are affected by the issue to be considered in the special meetings may be important.
Sidney D. Hemsley
Senior Law Consultant