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TRANSPARENCY MORE THAN CAMPAIGN PLEDGE

One of the great ironies of politics is how most candidates in most elections pledge openness, transparency and accessibility during the course of a campaign. Despite those promises, from the courthouse to the statehouse public officials all across the state deliberate the public’s business in private, hide behind executive sessions, orchestrate voting blocs outside of meetings, stall open records requests and the Tennessee General Assembly even exempts itself from the same Open Meeting Act that is binding on local officials. Closed government is poor government regardless of political ideology or party. Voters should take note of all the campaign posturing about transparency in government and when the next General Assembly convenes remind the men and women we have elected of their promises. Tennessee’s Open Meetings Act is good, but not great. Citizens, the media and open government advocates should put pressure on representatives and senators to improve the language in open meetings legislation to define what it means for elected officials to “deliberate” the public’s business outside of an open public meeting. Citizens of Tennessee have every right to always have the expectation that public policy is only being deliberated in open public meetings. The citizens of Tennessee have every right to know not only what decision are reached by elected officials, but how they arrive at those decisions. In addition to the need for more precise language in the act itself, state legislators could prove their commitment to openness in government by enacting legislation that requires the General Assembly itself to be just as open as local government. All government, not just local government, belongs to the governed.

Jim Zachary, Director

Tennessee Transparency Project

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GOVERNMENT BELONGS TO THE GOVERNED

It’s Your Government

“Never doubt that a small group of thoughtful, committed citizens can change the world … indeed, it is the only thing that ever has,” – Margaret Meade.

No rights are more important than the rights of individuals. Among those rights are the basic rights of access to our government.  Government belongs to the governed. As citizens of the state of Tennessee we are guaranteed by state law that the public’s business will be conducted in public. However, city councils, county commissions, boards of education, utility districts and other governmental bodies in our communities often do not understand the importance of complete government transparency or simply disregard the public’s right to know.

In fact, members of the Tennessee General Assembly have even gone so far as to suggest that the state’s open meetings and open records legislation should be weakened, allowing for more secrecy in local government.

All citizens have a vested interest in open government. We believe the only way to protect rights of access in the longterm is to activate citizens, educate the public at-large, empower the electorate and serve notice on public officials that the citizens of each of our communities and the state of Tennessee demand absolute government transparency.

Government belongs to the governed.

Jim Zachary, Director

Tennessee Transparency Project

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OPEN GOVERNMENT — RULE OF LAW

ALWAYS ASSUME OPEN / PUBLIC

Open meetings and public records carry the rule of law in Tennessee.

Citizens should have have the presumption that any meeting of elected officials and any document held in local government offices is open and public.

Exemptions to the state’s Open Meetings Act and Public Records Act are just that — exemptions.

If any two or more elected officials of the same governmental body meet, citizens have every right to think they have every right to be in attendance at that meeting and should fully expect that public notice will be provided prior to the meeting. There are only a few, very few, exceptions and very specific conditions must be met before any kind of private meetings of even just two local officials can take place. For an example, officials may meet in private with an attorney to discuss matters of ongoing or truly pending litigation to discuss legal strategy, but that does not mean they can simply meet behind closed doors because an attorney is with them. The law is specific and open is the rule, not the exception.

It should always be assumed by a citizen and a pubic records custodian that any record held by a school, at a courthouse or in city hall must be made available for any citizen to inspect during normal business hours. A citizen does not have to prove that a record is a public record. Again, openness is the rule of law. Someone in a public office denying access to any record must be prepared to provide the specific exception in state law if they deny a records request.

The Tennessee General Assembly is not as transparent as it needs to be.

However, in local government the law in on the side of transparency. The laws for openness may not be perfect, but they are good. Generally when local officials do things outside of public meetings, where two or more of them discuss the public’s business prior to or outside of a meeting, the problem is not the law. The problem is in officials complying with the rule of law. When a citizen has a problem getting a public record from the police department, county  clerk or property assessor, the problem is not with the law, it is generally in the office worker or office holder’s knowledge of the law. The rule of law is that public records are public. Exceptions, though many, relative to the volume of records held in government offices, are few.

Largely the issue of transparency in local government is a matter of not complying with the rule of law.

Jim Zachary, Director

Tennessee Transparency Project


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WORKS IN PROGRESS, EVEN BUDGET DRAFTS, ARE PUBLIC RECORDS IN TENNESSEE

As every county commission, board of mayor and aldermen and board of education drafts its FY2012-13 budget, every budget deliberation, every workshop and every hearing must take place in open public meetings. Any discussions among elected officials regarding the tax levy must take place in those meetings and not in private conversations among elected members of the governmental body prior to or outside of the posted meeting. If city recorders, mayors, directors of schools, office staff, finance directors or any one else is acting as a go-between or intermediary relaying messages back and forth between aldermen, commissioners or board members in an attempt to circumvent the Open Meetings Act, they are out of compliance with the law. Additionally, citizens should know that all budget documents are public records. It is not uncommon for officials to deny a request for budget worksheets and drafts saying they are “works in progress,” and are not public records. They are wrong. The worksheets, the budget drafts or any budget documents handed to, mailed to or emailed to public officials are public records and must be made available for inspection during normal business hours or duplicated in a timely manner when a citizen of the state of Tennessee requests the documents. There is no obligation in the law requiring the records requestor to prove the documents are public records. In fact, any records custodian or office staff member that denies a public record is legally required to provide a legal basis for the denial. It does not have to be a member of the media who gains access to those records. All citizens have full rights of access to all public records.

Jim Zachary, Director

Tennessee Transparency Project


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UNDER ATTACK: SUNSHINE LAW BATTLES NOT OVER

The citizens of the state of Tennessee remain under attack.

A full out assault on citizen rights is being waged across the state, in all three of the grand divisions, and the battlegrounds are in the halls of county government and  the steps of city hall in communities all across Tennessee.

As one example, at the end of last year, at the behest of the Tennessee County Commissioners Association, county commissions across the state were voting on resolutions that would have, in effect, stripped local government out of the hands of ordinary citizens and would have created local governments that are not of, by and for the people, but rather are behind the people — behind their backs.

The standard bearer of that ideology was Williamson County Commissioner Bob Barnwell,  who wanted to make it legal for any number short of a quorum of the members of a county commission, school board, or city council to meet and discuss public business.

Tennessee’s Open Meetings Act and Open Records Act, commonly know as the Sunshine Law, are not the best in the nation, but they are not the worst either.

For almost four decades local lawmakers have been required by law to conduct the public’s business in public.

The law clearly states:
“The General Assembly hereby declares it to be the policy of this State that the formation of public policy and decisions is public business and shall not be conducted in secret,” (Tennessee Code Annotated 8-44-101-201).

The county commission association was leading the charge in this attack on citizen’s rights and that was a bit like putting the fox in charge of the hen house. Barnwell and the association were hoping the Tennessee General Assembly would take up their cause, because county commissions, though they may be feeling their oats and flexing their muscles, in reality can only pass nonbinding resolutions on this issue and are powerless to change Tennessee Code. They could however, unduly influence state lawmakers.

While the idea did not have legs in the General Assembly this session, the sentiment is not dead. Citizens must continue to tell their county commissioners they are adamantly opposed to any legislation that would give an endorsement to good old boy politics and back room deal making. In fact, some proposals would move the backroom to the front room and allow almost half of a county commission, for example, to deliberate the public’s business in complete privacy with complete impunity.

Some suggestions would allow any number of county commissioners, or a school board or board of mayor and aldermen or the board of a utility district to meet in private with no public notice at anytime they wanted to regarding any issue just so long as a quorum of that elected body is not present.

It may be true that local elected bodies must operate under rules of disclosure and openness that do not apply to the Tennessee General Assembly, but all that means is that the Constitution of the State of Tennessee may be a bit antiquated in a few places and the General Assembly should be more transparent not less.

Tennessee Lt. Governor and Speaker of the Senate Ron Ramsey (R), Blountville, has given clear indication of part of the problem that may have created this blind, thoughtless threat seige on the citizens of Tennessee.

Ramsey reportedly told an AP reporter that local officials fear prosecution if they are seen talking to a member of the same elected body outside of a public meeting. Ramsey’s assertions showed a clear ignorance of the code and it is that very kind of misinformation that may be fueling this assault on citizens right of access to their local government. State law does not allow for such protections and no lawmaker in Tennessee has ever been subjected to prosecution for such an allegation. Ramsey clearly does not know the Code and does not understand the application of it.

In fact, Tennessee’s Sunshine Law is not punitive in nature. It is corrective and merely allows for the overturning of decisions that have been reached by an elected body in violation of the law.

Under the 37-year-old “sunshine law,” two or more members of a government body may not get together in private to “deliberate” toward a decision. The Courts have broadly defined what it means to “deliberate,” opining that it extends beyond just voting on an issue. In fact, the public has a right to know not only what decisions public officials have reached; they have a right to know how they arrived at those decisions.

In the interest of providing the most accurate information possible and so our local officials do not operate under the same misunderstandings reflected by Ramsey’s comments, we want our county commissioners, aldermen and school board members to know what the law actually does say.

State law defines what a “meeting,” is:
8-44-102. Open meetings — “Governing body” defined — “Meeting” defined (a) All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee. (b)(1)

“Governing body” means:
(A) 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 and also means a community action agency which administers community action programs under the provisions of 42 U.S.C. 2790 [repealed]. Any governing body so defined by this section shall remain so defined, notwithstanding the fact that such governing body may have designated itself as a negotiation committee for collective bargaining purposes, and strategy sessions of a governing body under such circumstances shall be open to the public at all times; (B) The board of directors of any nonprofit corporation which contracts with a state agency to receive community grant funds in consideration for rendering specified services to the public; provided, that community grant funds comprise at least thirty percent (30%) of the total annual income of such corporation…”
(2) “Meeting” means 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. “Meeting” does not include any on-site inspection of any project or program.
(c) Nothing in this section shall be construed as to require a chance meeting of two (2) or more members of a public body to be considered a public meeting. No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part. HISTORY: Acts 1974, ch. 442, 2; 1979, ch. 411, 1, 2; T.C.A., 8-4402; Acts 1985, ch. 290, 1, 2; 1986, ch. 594, 1; 1988, ch. 908, 3, 5; 1997, ch. 346, 1; 1998, ch. 1102, 1, 3.

State law requires public notice of meetings:
8-44-103. Notice of public meetings (a) Notice of Regular Meetings. Any such governmental body which holds a meeting previously scheduled by statute, ordinance, or resolution shall give adequate public notice of such meeting. (b) Notice of Special Meetings. Any such governmental body which holds a meeting not previously scheduled by statute, ordinance, or resolution, or for which notice is not already provided by law, shall give adequate public notice of such meeting. (c) The notice requirements of this part are in addition to, and not in substitution of, any other notice required by law. HISTORY: Acts 1974, ch. 442, 3; T.C.A., 8- 4403.

State law requires access to minutes of meetings and prohibits secret balloting of elected officials:

8-44-104. Minutes recorded and open to public — Secret votes prohibited (a) The minutes of a meeting of any such governmental body shall be promptly and fully recorded, shall be open to public inspection, and shall include, but not be limited to, a record of 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. (b) All votes of any such governmental body shall be by public vote or public ballot or public roll call. No secret votes, or secret ballots, or secret roll calls shall be allowed. As used in this chapter, “public vote” means a vote in which the “aye” faction vocally expresses its will in unison and in which the “nay” faction, subsequently, vocally expresses its will in unison. HISTORY: Acts 1974, ch. 442, 4; T.C.A., 8-4404; Acts 1980, ch. 800, 1.

The existing state law is remedial in its nature, rather than being punitive:

8-44-105. Action nullified — Exception Any action taken at a meeting in violation of this part shall be void and of no effect; provided, that this nullification of actions taken at such meetings shall not apply to any commitment, otherwise legal, affecting the public debt of the entity concerned. HISTORY: Acts 1974, ch. 442, 5; T.C.A., 8-4405.

The law defines the court jurisdictions for alleged violations: Enforcement – Jurisdiction (a) The circuit courts, chancery courts, and other courts which have equity jurisdiction, have jurisdiction to issue injunctions, impose penalties, and otherwise enforce the purposes of this part upon application of any citizen of this state.

The law is not the best we could have.

However, it is the best we do have and there is no need to change it for the worse.

One east Tennessee county commissioner said this year, “If you don’t have anything to hide why would you want to meet in private?” We agree.

Proposals to weaken the state’s Sunshine Law are not an attack on the media or a local newspaper or reporter. Such proposals are an attack on the citizens of the state of Tennessee. We want every citizen to know that the business of the county commission, school board and board of mayor and aldermen is your business.

Jim Zachary, Director

Tennessee Transparency Project

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NOT-SO-PUBLIC NOTICES;

NOT IN PUBLIC’S INTEREST

Should government keep public notices in newspapers?

There are four words to consider:
• Government;
• Public;
• Notice; and
• Newspapers.

Only one of those words matters — Public.
The issue of whether government should require the publication of public notices in newspapers is not about anything other than what is in the public’s best interest.
This issue is not about what is good for government.
It is not about what is good for newspapers.
It is only about what is good for the public.
The battle over the publication of public notices in Tennessee should not be a battle about either government saving money or about newspapers making money. Both of those issues are red herrings and have nothing to do with the larger issue and that is about what is right for the citizens of Tennessee.

A handful of legislators across the state of Tennessee seem bound and determined to relieve local government of its responsibility to publish public notices in local newspapers.
There is a reason why public notices are required to begin with and that is simply to provide for openness and transparency in Government.

This issue is about what is in the best interest of 6.3 million Tennesseans.

Where do ordinary citizens in Tennessee’s 95 counties get their information about the community they live in?

How do they stay aware of the actions and decisions of local government? Internet websites may be used by a large number of Tennesseans for entertainment, for playing games, for research, for general information or even for national and international news.

However, people stay informed about their local community through their local newspaper.

This boils down to a question about where people look for and find information about their respective communities.

Ordinary citizens simply do not peruse the Internet looking for public notices.

If citizens in Anderson County want to know when a public hearing on next year’s property tax rate is going to be set, they will look for that information in the Clinton Courier News or the Oak Ridger. If people in Obion County have concerns about a foreclosure or an estate sale, they will turn to the pages of the Union City Daily Herald. If the citizens of Grainger County are looking through the classified advertising section in Grainger Today and see a permit application that could potentially impact ground water or air quality, they will likely show up for the scheduled public hearing. If Murfreesboro city fathers consider a sweeping annexation that could take in a large number of Rutherford County residents who might be opposed to being annexed into the city, citizens most likely would first find out about it in the pages of the Daily News Journal.

Newspapers have long been the fourth estate. Whether government likes it or not, newspapers are where citizens turn for information about local government and that is not changing anytime soon.

Perhaps government does not always want its citizens to know what it is up to and that is just too bad. They have every right to know.  Newspapers have historically protected those rights and will continue to do so.

Placing government information on government websites is fine, but it is not a replacement, and will never be a replacement, for providing the most visible, most transparent, most useful information for and about a given community.

Citizens are not going to go to a government-run website or a centralized public notice website to find information unless they are already aware or clued in to what they are looking for and that is one important distinction between the institutional government-run website and a true public forum, such as the local newspaper.

For example, suppose in a reappraisal year local officials have the intention of not ratifying the certified property tax rate even though property values may have increased significantly, resulting in an effective take hike. Even though the tax “rate,” would remain unchanged, because of the reappraisals an unchanged rate is in all actuality a tax increase.

By law, the local government is required to give public notice and conduct a public hearing prior to setting the tax rate.

Suppose the not-so-public notice was simply posted on a local or state government website. Who would see it? Why would anyone even be looking for such a notice?

Obviously, if local officials did not want citizens to show up and protest the true tax hike they might prefer the “notice,” not be “noticed” and be buried somewhere on a website that would not be a true alert either to the media or to citizens at-large.

How could this be in the public’s best interest?

Clearly, it would not be.

Public notices must remain public and the only way to protect the public nature of those notices is by publication in local newspapers — not because it’s good for newspapers, not because it’s good for government, but because it’s good for the public.

Jim Zachary, Director

Tennessee Transparency Project

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TRANSPARENCY — NOT REPUBLICAN — NOT DEMOCRAT

Openness in government is not a liberal, conservative, republican, democrat, independent, TEA party or libertarian issue. The importance of transparency in local, state and federal government should transcend parties and political ideologies. Checks and balances provide few checks and little balance when officials broker deals behind closed doors and conceal documents that contain important information that citizens have the right, and often the need, to know. Local government has the biggest impact in the lives of citizens on a day to day basis. Whether it is in the form of property taxes, sales taxes, personal property taxes, business taxes, state-shared dollars or federal grants, loans and funding, local government is 100 percent taxpayer funded. The decisions being made, the monies being spent and the records being kept by city hall, the county commission, the board of education or the utility district all belong to liberals, conservatives, republicans, democrats, independents, TEA party volunteers, libertarians and even politically disinterested individuals. All stakeholders have a stake in open meetings and public records and should care about transparency issues. Bipartisanship is like the weather — everyone talks about it, but no one does anything about it. The difference is while a person can’t change the weather, officials could choose to work together. The lack of and need for true government transparency should be truly be a bipartisan cause. Any elected officials who truly care about public service in a real and meaningful way and fully understand what a representative form of government is all about, should not only champion openness in government, but should be the most effective watchdogs, looking out for the public trust. Sadly, those kinds of elected officials are hard to find. We encourage those officials who do care and who do understand to become a part of the transparency project and enhance their public service.

Jim Zachary, Director

Tennessee Transparency Project

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QUICK BUDGETS RAISE QUESTIONS;

ALL DISCUSSION MUST BE PUBLIC  

City, county and school system leaders need to make long-term decisions that will benefit the citizens for many years to come and those decisions need to be fully vetted, completely discussed and thoroughly debated in open public meetings. There are no decisions that public officials ever make that are more important than the annual budget allocations. Those decisions should never be taken lightly, or done quickly.

Just a budget workshop or two followed by quick budget hearings hardly seems sufficient to make such important and impactful decisions.

We will continue to say this — all deliberations of the public’s business must take place in public meetings.

It does not make any difference whatsoever if elected officials agree or disagree with this in principle.

It is the law.

Deliberating does not mean voting.

Most elected officials would agree that they cannot vote in private, but somehow they seem to think it is okay to discuss city business in private.

It is not.

It is against the law.
If the city or attorney has advised officials they can discuss the public’s business during casual conversations just so long as they are not voting, then the advice they have received is wrong. If aldermen or commissioners or school board members believe or have been led to believe that it is permissible for two of them to discuss the public business in private so long as there are not three or more present, once again, they are wrong.

If local leaders think they have found a way around the state’s Open Meetings Act by a non-elected person being a go-between, sharing information that leads to a decision, in essence serving as an intermediary, then they are wrong.

In fact, any attempt to circumvent the law is considered to be a violation of the law.

It is the policy of the state of Tennessee that local government must do its business, all of its business, in open public meetings. Period.

The law says, “The general assembly hereby declares it to be the policy of this state that the formation of public policy and decision is public business and shall not be conducted in secret” (T.C.A. 8-44-101).

A mayor, a city recorder, a secretary, a director of schools, a family member, a friend or even an enemy cannot legally carry information between elected members of the board of aldermen, county commission, or BOE as they prepare the annual budget or do any other piece of the public’s business for that matter.

Furthermore, not only is it illegal for any two members of the elected board to have private discussion regarding absolutely any piece of public  business, it is just as illegal for them to email, text, telephone or communicate in any way that is not before the public.

The public not only has a right to know what decisions officials reach, but has the right to know how they arrive at those decisions.

The law does say that a chance meeting between two elected officials is not in any way a violation of the Open Meetings Act, so long as they do not discuss official city business.

If two aldermen, for example, see each other, go to church together, eat in the same restaurant, etc. they do not have to avoid one another, they just have to avoid talking about city business. The same thing applies to members of the board of education or any elected body.

However, regarding such chance meetings, the law also clearly states, “No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part” (T.C.A. 8-44-102 (E) (2).

The state’s counsel for Open Records in the Tennessee Comptroller’s Office has been clear that the ordinary definition of “deliberation,” applies and simply refers to any discussions of the public’s business.

Is it really possible to vote unanimously on monthly business over and over again with virtually no discussion without having had some prior communications?

When these types of things go on regularly, it time one would hope at least one alderman, commissioner or BOE member would break ranks and do the right thing and demand that all deliberations of the public’s business take place only in open public meetings.

After all, every single piece of business being discussed is the public’s business.

Every single dime being spent is the public’s dime.

Once it is demonstrated that any piece of the public’s business has been deliberated in private, including budget discussions, prior to public hearings or prior to taking a vote, the law says, “Any action taken at a meeting in violation of this part shall be void and of no effect” (T.C.A. 8-44-105).

Jim Zachary, Director

Tennessee Transparency Project


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