Reviewed Date: 05/20/2019
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. 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. Additionally, the 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.
Retreats are subject to the TOMA, if public business will be discussed or decided upon by multiple members of a governing body. (See Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990)).
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.
At meetings, all votes must be public. Secret ballots are not permitted. T.C.A. § 8-44-104.
The following gatherings are not subject to the provisions of the TOMA:
- On-site inspections of projects or programs (T.C.A. § 8-44-102(b)(2);
- 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));
- 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)
- Meetings of public hospital boards to discuss, 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).
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;
- The governing body is a named party; and
- 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 Smith County Education Association v. Anderson,676 S.W. 2d 328 (Tenn. 1984); Van Hooser v. Warren County Board of Education, 807 S.W.2d 230 (Tenn. 1991).)
However, the governing body must deliberate towards and/or make decisions related to the subject of the executive session in an adequately noticed public meeting,
T.C.A. § 8-44-108 allows certain state bodies to meet using electronic means. This statute generally does not apply to municipal governing bodies, except that it does apply to the governing bodies of municipalities incorporated under the general law city manager-commission charter with a commission of three members and a population of more than 2,500.
T.C.A. § 6-54-143 allows a service member, 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.
Any action held by a court to have violated the Sunshine Law is void, unless the action is related to public debt. 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. §§ 8-44-105–106.