On March 30th and April 2nd, Tennessee Gov. Bill Lee issued Executive Orders No. 22 and No. 23, respectively, which instituted a statewide Safer at Home Order to remain in effect until April 14, 2020. Many cities and counties have also issued local Safer at Home Orders. These orders were intended to slow the spread of COVID-19 by forcing closure of all non-essential services and limiting essential services to the greatest extent possible.
Gov. Lee had previously issued Executive Order No. 16 on March 20, 2020, which suspended the requirements of the Tennessee Open Meetings Act, T.C.A. § 8-44-101, to the extent necessary to allow any governing bodies to meet and conduct essential business by electronic means, rather than be required to gather a quorum in person at the same location. While Executive Order No. 16 did suspend some of the restrictions of the Open Meetings Act, it expressly states that all meetings conducted by electronic means are to remain open and accessible to the public and that existing quorum, meeting notice and voting requirements will remain in effect.
In light of the Safer at Home Orders and Executive Order No. 16, many local governments are asking how they can maintain compliance with provisions of the Open Meetings Act not suspended by Executive Order No. 16 and still conduct essential government business via phone or video conference. As local governments begin to explore what it means to govern remotely, this article seeks to provide insight into how city and county legislative bodies and boards and commissions can continue to provide open access to public meetings and ensure transparency, while also maintaining the health and safety of citizens in light of the COVID-19 outbreak. This article also provides suggestions that local governments should consider when seeking to conduct public meetings of governing bodies via electronic means as permitted by Executive Order No. 16.
Tennessee Open Meetings Act
The Open Meetings Act was enacted to ensure that the “formation of public policy and decisions” would not “be conducted in secret” in Tennessee (T.C.A. § 8-44-101). The Tennessee Supreme Court concluded that the Open Meetings Act “implements the constitutional requirement of open government” found in Article I, Section 19 of the Tennessee Constitution, which provides for “freedom of the press, open government and freedom of speech” (Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976)). At its core, the Open Meetings Act seeks to prevent governing bodies from making decisions behind closed doors and to safeguard the public’s right to access the workings of government. As such, city and county legislative bodies and boards and commissions may only regulate access to public meetings in a manner that reasonably serves public safety and welfare (Tenn. Op. Atty. Gen. No. 95-126).
The Open Meetings Act applies to all “meetings” of any “governing body.” A meeting is defined 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” (T.C.A. § 8-44-102(b)(2)). A governing body is defined as “the members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration” (T.C.A. § 8-44-102(b)(1)). The Tennessee Supreme Court has determined that this definition applies broadly to “any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and authority may be traced to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector” (Dorrier, 537 S.W.2d at 892). This includes not only city council and county commission meetings and their committees, but also meetings of industrial development boards, planning commissions, local school boards, county hospital boards, highway commissions and many others.
The Open Meetings Act requires all meetings of any governing body to be open to the public at all times and also requires that adequate public notice be given of all regular and special meetings (T.C.A. §§ 8-44-102 and 103). Meeting minutes must be recorded and open to public inspection and must include “a record of the persons present, all motions, proposals and resolutions offered, the results of any votes taken, and a record of individual votes in the event of roll call” (T.C.A. § 8-44-104(a)). Every vote must be made “by public vote or public ballot or public roll call,” and no secret votes or secret roll calls shall be allowed (T.C.A. § 8-44-104(b)). No chance meetings, informal assemblages, or electronic communication between two or more members of a governing body can be used to decide or deliberate public business in circumvention of the spirit or requirements of the Open Meetings Act (T.C.A. § 8-44-102(c)). Any action taken by a governing body at a meeting in violation of the Open Meetings Act is void and of no effect (T.C.A. § 8-44-105). All these requirements work together to guarantee public access and transparency in government decision making.
Public Hearings vs. Public Meetings
As local governments weigh the possibility of conducting business through electronic means, it is important to distinguish public meetings of a governing body from public hearings before the governing body. Public hearings and public meetings are both considered meetings of the governing body under the Open Meetings Act; however, public hearings additionally require that the public have the ability to comment on proposed governmental actions. Whether a public hearing or only a public meeting is required is determined by statute. For example, the following are just a few of the government actions required to take place at public hearings under Tennessee law: budget adoption (T.C.A. § 6-56-206(b)); adoption of an economic impact plan by an industrial development corporation (T.C.A. § 7-53-312(g)); amendment and assessment of a central business improvement district (T.C.A.§§ 7-84-207 and 522); adoption or amendment of zoning regulations (T.C.A. §§ 13-7-104 and 105, 13-7-203); adoption of a redevelopment plan (T.C.A. § 13-20-203), adoption of an urban renewal plan (T.C.A. § 13-20-211), and the approval of a tax rate levied in excess of the certified rate (T.C.A. § 67-5-1702). It is important for a governing body to consider whether the public has a right to comment on the proposed action when deciding whether to conduct meetings electronically and to also consider whether it has adequate technology available to allow for public comment.
Best Practices for Conducting Public Meetings Via Electronic Means
In the midst of the COVID-19 outbreak, many local governments have decided to delay or postpone meetings of their governing bodies. However, it is likely that some governing bodies will need to meet while the Safer at Home Orders are in effect. Compliance with the Open Meetings Act and conducting electronic public meetings do not have to be mutually exclusive. The following suggestions are considered to be best practices when holding meetings via electronic means and are based on guidance provided in the Open Meetings Act, as well as in Executive Order No. 16.
Make a determination that meeting electronically is necessary to protect health and safety
Executive Order No. 16 allows for government bodies to meet electronically only after “the governing body determines that meeting electronically is necessary to protect the health, safety, and welfare of Tennesseans in light of the COVID-19 outbreak.” Governing bodies should make clear in any public notice that the meeting is being held electronically because it is necessary in light of the COVID-19 outbreak and the Safer at Home Orders. Furthermore, governing bodies should adopt a resolution at the first meeting held electronically that states that it is necessary to meet via teleconference or videoconference to protect the health and safety of the public during the COVID-19 outbreak.
Comply with requirements of Executive Order No. 16
The order set forth the following requirements for each governing body when conducting meetings by electronic means:
- To make reasonable efforts to ensure that the public has live access to meetings conducted electronically, and if live access cannot be provided despite reasonable efforts, to make a clear audio or video recording available to the public within two business days; and
- To conduct meetings in a manner consistent with Article I, Section 19 of the Tennessee Constitution providing for free speech and open government.
Executive Order No. 16 also requires state boards and commissions to comply with the requirements of T.C.A. § 8-44-108(c). The Office of Open Records Counsel, which was established pursuant to T.C.A. § 8-4-601 and serves citizens, media, and local governmental entities as a resource for issues related to Tennessee’s public records and open meeting laws, has counseled that while that subsection only applies to state government, many of the requirements of Section 108(c) are good suggestions for any governing body that holds meetings electronically pursuant to the order. This article further discusses how local governments can comply with Section 108(c) in practice.
Publish instructions for public access and electronic meeting procedures in advance
Importantly, Executive Order No. 16 expressly states that meeting notice requirements under Tennessee law are in no way limited or abridged. Therefore, public notice must continue to be “adequate” as required by the Open Meetings Act when a governing body chooses to meet electronically (T.C.A. § 8-44-103). Adequacy is not defined in the Open Meetings Act, but Tennessee courts hold that “adequate notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public” (Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511 (Tenn. 1974)).
Considering this, public notices for electronic meetings should include instructions for public access and the procedures that will apply. As space may be limited in the public notice itself, particularly if published in a newspaper, then governing bodies should consider referencing a website where these procedures can be accessed in the notice itself, and also post the same information in the place where governmental notices are routinely posted. If this is the case, the notice should also include a phone number where citizens who lack internet access may request a copy of the meeting procedures. Taking these steps provides the media and public clear guidance on how the electronic meeting will be conducted and ample time to make plans to participate, thus helping to provide adequate public notice.
Provide deadline for submission of documents
The electronic meeting procedures may set submission deadlines for members of the public to provide documents to be shared with the governing body. Setting a deadline allows a governing body to comply with T.C.A. § 8-44-108(c)(4), which states that “any member of a governing body not present at a meeting shall be provided, before the meeting, with any documents that will be discussed at the meeting, with substantially the same content as those documents actually presented.” This best practice ensures that each member has a correct copy of any document and members have the chance to review all documents prior to the meeting.
Allow for more than one outlet for public access
To the extent reasonably possible, governing bodies should seek to use more than one platform to provide the broadest possible access to the public meeting. Executive Order No. 16 urges governing bodies “to provide access to the meeting electronically at a time and location reasonably accessible to all members of the public.” The COVID-19 outbreak and the Safer at Home Orders prohibit 10 or more people from gathering at the public meeting location to watch or listen in person. However, in the opinion of the Office of Open Records Counsel, broadcasting the meeting live via teleconference or videoconference and making a recording publicly available online in accordance with Executive Order No. 16 are sufficient. If video streaming is available, governing bodies may want to consider partnering with a local broadcast station to provide access to those without internet service. If a governing body plans to conduct its meeting via teleconference, the body may consider working with a local public radio station to air the meeting live. The greater the availability of public access to electronic meetings, the more likely it is that a governing body is complying with the requirements of the Open Meetings Act and Executive Order No. 16.
Roll call votes and identify members for the record
All votes taken during an electronically held meeting should be taken by roll call in accordance with T.C.A. § 8-44-108(c)(5). Although Section 108(c) only mandates roll call votes for state government, roll call votes are the suggested best practice for local governments meeting electronically because it ensures creation of a clear record and that the public and other governing body members understand who is speaking and whether a proposed action has the necessary votes to pass. Governing body members should also consider beginning each statement or motion made by stating their name as to accurately reflect the members’ actions in the record, especially if video is not available. Members participating electronically should also consider identifying the persons present with them in the room where the member is participating, as described in T.C.A. § 8-44-108(c)(3).
Make and preserve a video or audio recording of the meeting
In order to protect against future legal claims that the meeting did not conform to the requirements of the Open Meetings Act, governing bodies should make and preserve a video or audio recording of the meeting. It is also a best practice for a governing body to make the recording public by uploading the video or audio file to its website within two business days or as soon as reasonably practicable after the meeting.
Ratify any actions after the emergency subsides
After the COVID-19 outbreak subsides, government bodies should republish public notices and hold in-person public meetings or public hearings to ratify any actions taken at meetings conducted electronically. Since any action taken at a meeting that violates any requirement of the Open Meetings Act is “void and of no effect” (T.C.A. § 8-44-105), the ratification of all prior actions taken during electronic meetings will ensure that each is effective and has the full force of law.
Technological capabilities for public comment
If Tennessee law requires for a public hearing to be held rather than a public meeting, then the governing body must consider whether its technology can adequately accommodate public comment. In light of the Stay at Home Orders, governing bodies are unable to provide a physical location for the press and members of the public to make in-person comments if more than 10 people desire to attend. The Office of Open Records Counsel has stated that it would be sufficient for the public to make comments over the telephone or other technology being used for the meeting in light of the COVID-19 pandemic. At the beginning of the meeting or in the published procedures, a governing body should state the reasonable amount of time each person will have to comment. Then once the meeting begins, the governing body chairman should ask for any individual to identify themselves on the call or video as someone who would like to provide comment, so that the chairman may call on each individual when it is his or her time to speak. If the technology used by the governing body will not permit public comment or lacks the ability to mute and unmute members of the public, the public hearing should be postponed until adequate technology can be acquired or an in-person public hearing can be held.
Conclusion
Considering the multitude of challenges facing local communities by the spread of COVID-19 in Tennessee, many governing bodies will find the need to meet electronically to conduct business, implement policies and provide relief to citizens. Governing bodies should be aware of how the requirements of the Tennessee Open Meetings Act apply to electronic meetings and be prepared to adapt their procedures accordingly, as discussed in this article.
For many local communities, electronic meetings are uncharted territory. Please share any additional thoughts, ideas and concerns that you may have with us so that we may all continue to build best practices together during this challenging time.
