August 19, 1992
Your question is whether a committee consisting of the mayor and some members of the city council can select a police officer in a closed meeting held without public notice. As I recall, I recently addressed a similar question for the city, and the answer is still no.
If what you tell me is correct, such a committee recently met without public notice and interviewed police officers, and in that meeting either selected a police officer or narrowed down the candidates for the position of police officer.
If such a meeting was held, it unquestionably violated the Open Meetings Law. As I read the city charter, the city council consists of a mayor and six aldermen, [City Charter, § 3], and a quorum consists of four aldermen or three aldermen and the mayor [City Charter, § 7]. In other words, such a committee would be the city council.
The Open Meetings Law found at Tennessee Code Annotated, § 8-44-101--8-44-201 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 Tennessee Constitution." A meeting under the definition of that Law is "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." [Tennessee Code Annotated, § 8-44-102(a), and 8-44-102(c)]. It is difficult to envision a committee (by whatever name it is called) composed of most or even some of the members of the governing body that doesn't intend to make decisions or deliberate toward decisions. In this particular case, if the committee met, collectively interviewed candidates for police officer, and actually selected a police officer or narrowed down the choices for the same, there has certainly been the requisite decision making and/or deliberation toward a decision, on the part of the governing body.
Even if there were only collective interviews of the candidates for police officer by the committee, it is difficult in the case of a municipal governing body to separate the interviews from actual deliberation toward a personnel decision. In fact, it seems to me almost impossible for deliberation toward decision-making, if not downright decision-making, not to creep into collective interviews held by municipal governing bodies.
In Standard Publishing Co. v. City of McMinnville, (Tn.Ct. App., filed at Nashville, April 25, 1985), the Tennessee Court of Appeals had this to say in overturning the trial court's decision that because a newspaper which challenged the meeting of city committees in secret didn't prove that the committees had a quorum requirement:
The Board of the City of McMinnville may not act, either intentionally or unintentionally, through its committees in a manner prohibited to the Board itself. In other words, the Board may not create committees that hold hearings and make recommendations to the Board, and then be allowed to circumvent the Public Meetings Act simply by failing to provide that it is necessary that a quorum be present for the committee to act.
Although the question you pose doesn't involve exactly the same set of facts as in Standard Publishing Co., the Court's admonition that "The Board of the City of McMinnville may not act, either intentionally or unintentionally, through its committees in a manner prohibited to the Board itself," prohibits the committee from acting in a closed meeting whether it is a quorum of the whole board or less than a quorum of the whole board. In either case, the committee would be doing what the entire board could not do under the Open Meetings Law.
I am enclosing Tennessee Attorney General's Opinions 88-169 and U-90-114. They make several points regarding meetings of subdivisions of a governing body, and meetings among individual council members at which city business is discussed, all of which general discourage secret meetings of municipal governing bodies of any kind.
Sidney D. Hemsley
Senior Law Consultant