New laws require local governments to provide agendas, public comment periods
Published 11:48 am Friday, May 12, 2023
BY DEBORAH FISHER
The Tennessee Open Meetings Act hasn’t changed too much over the years. But this year, the General Assembly made two major improvements that were a long time coming.
The open meetings law now requires that city and county legislative bodies produce an agenda that is available to the public at least 48 hours before a meeting and that “reasonably describes” each agenda item.
No more hiding important government business behind vague language or putting out an agenda that is only “new business” and “old business.”
Another new law requires public comment periods in all governing body meetings in which action is planned. Many governing bodies already have public comment periods, but nothing in state law required it and some do not have them or eliminate them for various meetings.
Both changes are good for citizens and for the people who serve on our governing bodies. They mean more information gets shared and less funny business can occur through withheld information.
My group, Tennessee Coalition for Open Government, worked with lawmakers and stakeholders on the requirement for an agenda after hearing reports of governing bodies that intentionally left things off the agenda or disguised them to avoid public scrutiny.
When citizens have sought legal relief for such secretive behavior, they were met with a Tennessee Court of Appeals ruling that said that nothing in the statute specifically requires governing bodies to have an agenda.
The new agenda law applies to all meetings of local legislative bodies, which include city councils, boards of aldermen and county commissions. TCOG hopes that lawmakers will consider in future sessions adding the requirement for other governing bodies, such as school boards, planning and zoning commissions and state boards and commissions.
• The agenda must be available 48 hours in advance in a place accessible to the public. This place can be on the governing body’s website, but it also can be in a public building, such as a city hall, if it’s accessible to the public.
• A governing body can add an item to the agenda during the meeting only if members follow their bylaws or properly adopted rules and procedures and comply with all other applicable state laws.
• However, the governing body is prohibited from circumventing the advance agenda requirements for the purpose of avoiding public disclosure of business to be considered.
NO CRYPTIC AGENDA ITEMS
One question going forward may be: What does “reasonably describe” mean? Generally, a reasonable person legal standard refers to what a hypothetical person with an ordinary degree of reason and intelligence and exercising average skill and judgment might determine.
An example of what would not be acceptable can be found in a court case regarding the town of Englewood’s notice of a special-called meeting. By law, notice for a special-called meeting must include the purpose of the meeting.
The meeting was about the town selecting the route for a highway construction project – one that would bypass the town or one that would widen a two-lane road into a four-lane road.
The notice said: “Letter to the State concerning HWY 411.”
The Court of Appeals in 1999 found that this “was so lacking that a person of reasonable intelligence would not be informed by the cryptic statement…Instead, a more substantive pronouncement stating that the commission would reconsider which alternative to endorse for Highway 411 should have been given.”
The agenda bill was carried by Sen. Todd Gardenhire, R-Chattanooga, and Rep. Jerome Moon, R-Maryville.
GOVERNING BODIES MAY RESTRICT COMMENTS TO ITEMS ON THE AGENDA
The new public comment law requires that a governing body reserve a period for comment “on matters that are germane to the items on the agenda for the meeting.” Nothing restricts a governing body from also allowing comment on items not on the agenda.
Some additional details:
• The governing body may put “reasonable restrictions” on the comment period, “such as the length of the period, the number of speakers and the length of the time that each speaker will be allowed to comment.”
• The governing body may require people to give notice in advance that they want to speak. The meeting notice must tell citizens how they can express their desire to speak – for example, if they need to sign up.
• The law requires that the governing body take steps “to ensure that opposing viewpoints are represented fairly.”
• Public comment periods are not required for meetings in which a governing body is conducting a disciplinary hearing for a member of the governing body or for a person whose profession is regulated by the governing body, such as state licensure boards.
The public comment bill was carried by Sen. Adam Lowe, R-Calhoun, and Rep. Elaine Davis, R-Knoxville.
(Deborah Fisher is executive director of Tennessee Coalition for Open Government at www.tcog.info.)