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TPA attorney says school system’s version of public notice could erase its vote to sue

A decision by the Carter County Board of Education to file suit against the City of Elizabethton might not have been the most controversial aspect of a special called meeting held by the Board last week – the meeting itself may have violated state law.
Rick Hollow, general legal counsel for the Tennessee Press Association, said that based on how the notification of the meeting was handled, the legality of the meeting, and therefore any action taken during the meeting, could be in question.
“If all they did was post a notice on a bulletin board in a public place and leave a voice mail on a reporter’s phone then you do not have adequate public notice,” Hollow said. “Based on just those facts it is an apparent violation of the Open Meetings Act, so any action that they took, if they took any action, could be nullified if the meeting were challenged.”
Under the Open Meetings Act – also known as the Sunshine Law – governing bodies, such as the Board of Education, must give public notice of not only their regularly scheduled meetings but any special called meetings as well. “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,” states a portion of Tennessee law regarding open meetings.
During a search on Monday, the Elizabethton Star could find no record of the special called meeting being advertised in any fashion.
Carter County Director of Schools Kevin Ward confirmed on Monday that the special called meeting was held on Wednesday, May 28, and that no advertisements for the meeting were placed.
“We didn’t advertise this,” he said, explaining that the meeting was needed on short notice due to the subject of the meeting being pending legal action. “We posted it at the office and notified (Elizabethton Star reporter) Ashley (Rader), which is what our attorney advised us to do.”
Ward said the notice for the meeting was posted at the school system’s administration building on Tuesday May 27, the day before the special called meeting. Rader said she received no voice-mail or other communication from anyone with the county school system regarding the special called meeting.
Hollow stated that even if Rader had received the message, it still would not have constituted “adequate public notice” for the special called meeting. “It would be very difficult for me to believe that a court would find that to be adequate public notice,” Hollow said.
State law does not define what “adequate public notice” is considered to be. A Supreme Court of Tennessee ruling in the 1974 case of Memphis Publishing Co. v. City of Memphis stated that as a general rule “adequate public notice” would be determined based on the totality of the circumstances of the particular case.
At the meeting members of the board met with attorney John Banks, who represents the school system in legal matters. It was during this meeting that the board directed Banks to proceed with litigation against the City of Elizabethton in an attempt to retrieve liquor-by-the-drink tax revenues currently being held by the city, which the board says are due to it under state law.
Ward said the special called meeting was held on such short notice because they were operating on a legal deadline. He said that the board had until June 1 to take legal action in order to be able to keep the suit in the local Chancery Court. After June 1, any legal proceedings would have to be filed in Nashville through the Davidson County Court.
The deadline was not new information to the school system. The tax revenues which the board says are being withheld by the city along with the possibility for legal action were discussed by Ward with the board during a regularly schedule meeting of the BOE on May 15, by Ward during a county budget workshop on May 15 with members of that committee, and again on May 19 when Ward reported on the situation to the full County Commission. During each of those meetings, Ward reported that he was attempting to work with the city to secure the funds without having to result to legal action.
State law does allow for attorney-client privilege when discussing current or pending litigation involving a public body so that members of the body and the attorney may privately discuss facts and information. However, under law, any discussion or vote regarding action to be taken must be open to the public and is subject to the Open Meetings Act under state law.
Hollow said if the meeting is challenged the board could face some ramifications if the court finds the Sunshine Law was violated.
Under state law, any action taken at a meeting which is found to be in violation of the Open Meetings Act “shall be void and of no effect” with the exception of actions taken which affect the public debt of the entity concerned.
If this special called meeting were challenged and was found by the courts to be in violation of the Open Meetings Act and the actions of the meeting nullified, then the board’s decision to direct Banks to file suit against the city would be nullified.
In the event that the Board’s authorization of the suit were nullified, the suit could possibly be thrown out of court. Having now missed the deadline for keeping the case in the local courts, the board would then have to seek redress through the courts in Davidson County.
Hollow said that in addition the nullification of any actions taken at the challenged meeting, the courts could also issue an injunction against the board if it is found that the Open Meetings Act were violated. “They could be enjoined against further violations,” he said. “That injunction could cause them to suffer contempt of court if they violate the Act again.”