Open meeting lawsuit takes aim at two secretive techniques

Published 12:43 pm Friday, December 30, 2022

BY DEBORAH FISHER
TN Press Association
The Chattanooga Times Free Press filed a lawsuit in December against the Chattanooga City Council over its use of private meetings to decide a significant issue — the new boundaries of city voting districts.
The lawsuit alleges violations of the Open Meetings Act and is important because it takes aim at two autocratic techniques sometimes used by public officials in Tennessee to skirt the law and shut out the public and journalists who report for the public.
In this case, it’s not clear whether the entire city council realized that their normal legislative process was being hijacked. But the process was distinctly different from redistricting in Chattanooga a decade ago.
In contrast to last time, this time, the council member discussions about new boundary lines were done in private, not in public. The public meetings that were finally held to show and eventually vote on the new maps were mostly a rubber-stamping of what everyone had already agreed upon ahead of time.
So how did Chattanooga manage to do all this behind closed doors? It started innocuously enough.
The city council’s chairman formed a redistricting committee of four city council members to bring forth a recommendation to the full council.
But instead of holding meetings open to the public like other city council committees do, the redistricting committee convened private meetings with executive staff of the mayor’s office. Unlike other committees, the redistricting committee gave no public notice of its meetings nor kept minutes.
Based on comments from the committee’s chair to the press, Chattanooga may try to argue that the redistricting committee’s meetings were not “meetings” subject to the open meetings act by contending that the committee didn’t decide anything or “deliberate” toward a decision during these meeting, but rather just heard from staff.
This was the first technique used by the committee to justify operating outside public view. But it’s a technique that takes a narrow view of the open meetings law and we know that governing bodies usually don’t operate this way. Under this narrow view of the law, anytime a government official gave a presentation to a city council or county commission — such as the mayor giving a presentation on a budget proposal or the sheriff on a new jail plan — the meeting could be closed to the public because the governing body is only “hearing” from someone, not actually making its decision yet or considering what its decision could be.
But the definition set by the Tennessee Supreme Court is specific. “Deliberate” means to “to examine and consult in order to form an opinion.”
A meeting in which the mayor’s staff presents information to a city council redistricting committee about redistricting requirements and choices is very much a part of the “examining and consulting” process and is, in fact, key to the big decision that must eventually be made by the governing body. These types of meetings are normally open to the public and should have been open here. One wonders why they were not.
The second technique used is one that I hear about repeatedly from citizens across the state who are frustrated with methods used to keep important issues outside the public eye until it’s too late for meaningful citizen input.
The redistricting committee instructed the mayor’s staff to meet individually with each council member about potential district boundaries.
City staff proceeded to spend “hundreds of hours” with council members in these private individual meetings. And when they introduced a proposed map to the full city council in the first public meeting on the issue, it was clear that staff believed all council members were all firmly in agreement with the proposal.
“I think I’ve spent a lot of time with each of you making changes that you wanted to your districts. We’re happy to make more if you want them, but the last word I have from every member of the council is that you’re fine with this,” said Chris Anderson, then the mayor’s administrator of innovation delivery and performance.
These serial meetings in which city staff serves as an intermediary — talking individually with council members to bring a governing body into agreement behind the scenes — is perhaps one of the most crafty, clandestine ways to rob the public of the opportunity to hear their representatives publicly debate issues. In this case, citizens interested in the issue had even asked at the time the ad hoc committee was created to be alerted when the committee started its work.
That request fell on deaf ears. A determination to have consequential discussions in private and to come to consensus on a plan in private through mediated conversations with city staff prevailed. That is not what the open meetings law prescribes, nor is it the way citizens want government to operate.
(Deborah Fisher is executive director of Tennessee Coalition for Open Government, an organization that has monitored and researched open government in Tennessee since 2003.)

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