Governor’s teleconference may violate open meetings law 

By GEOFF DAVIDIAN 
Putnam Pit editor 
NASHVILLE, Tenn. - A memorandum from Gov. Don Sundquist’s Office to Tennessee mayors and county executives, notifying them of “an important” security briefing conference call scheduled at 2 p.m. Cookeville time on March 12, asks officials to bar the press from the conference. 

But the exclusion may run afoul of state open meetings laws that do not exempt such conferences. The memorandum, dated Feb. 25, 2002 and signed by Sundquist’s deputy for Homeland Security, Wendell Gilbert, says the governor and the Homeland Security Council will participate in the conference with mayors and other local officials across the state, and Joe Allbaugh, director of the Federal Emergency Management Agency.

 “We ask that each mayor and county executive invite your top law enforcement official and your emergency management director to be included in the call,” Gilbert writes. “We would appreciate it if you did not involve your local media.”

 The Open Meetings Act does not prescribe when governing bodies must conduct meetings. Instead, it defines when meetings must be open to the public. In fact, any person may attend any open meeting that any governing body conducts. See T.C.A. § 8-44-102(a) (meetings open to "the public").

 What bodies are covered by the law? Executive branch agencies. Covered by the Act. The term governing body has been construed to include "any board, commission, committee, agency, authority or any other body, by whatever name, whose origin 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 v. Dark, 537 S.W.2d at 892. The Act applies to administrative agency proceedings. Levinson, Contested Cases Under the Tennessee Uniform Procedures Act, 6 Mem. St. U. L. Rev. 215, 234.

What constitutes a meeting subject to the law. Nature of business subject to the law. Meetings subject to the Act are those that are called to make a decision or to deliberate toward a decision on any matter. T.C.A. 8-44-102(C). 

What bodies are covered by the law? Advisory boards and commissions, quasi-governmental entities. 

Covered by the Act. Forbes v. Wilson County Emergency Communications Dist., 966 S.W. 2d 417 (Tenn. 1998)(Personnel Policy Committee of County Emergency Communications District 911 Board was subject to Act); See Hollow & Ennis, Tennessee Sunshine: The People's Business Goes Public, 42 Tenn. L. Rev. 527, 538 (1975) (citing legislative history that gives a broad reading to the term "public body" but does not indicate any specific bodies). See also Op. Att'y Gen. No. 94-77, 19 TAM 31-29 (July 8, 1994) (partisan caucuses given authority to make recommendations to or decisions for county legislative bodies are subject to Open Meetings Act). But see Perdue v. Quorum Health Resources, Inc., 934 F. Supp. 919 (M.D. Tenn. 1966) (no violation of act where City Hospital Board of Trustees did not meet to consider termination of employee of a private company that provided management services to the hospital). What constitutes a meeting subject to the law. 

Electronic meetings. a. Conference calls. Participants in a meeting may use any means of communication as long as every participant is capable of simultaneously hearing the other members of the meeting and it is possible to speak among the participants throughout the meeting. T.C.A. § 8-44-108. Further, if a physical quorum is not present at the meeting, the governing body must make a finding of "necessity" for electronic participation. Id. This statute, by its terms, applies only to state government, and not to local government. Op. Att'y Gen. No. 99-152 (Jan. 24, 1983). 

MEETING CATEGORIES -- OPEN OR CLOSED. Security, national and/or state, of buildings, personnel or other. The Open Meetings Act makes no specific exemption for such matters. But see T.C.A. § 10-7-504(a)(3) (making confidential papers, documents, and papers of the military department that involve the security of the United States or State of Tennessee, including national guard personnel records, staff studies, and investigations). However, Sundquist nowhere states the meeting should be closed to the press or pubic under this provision. For more information of the public’s rights to monitor government meetings, the Reporters Committee for Freedom of the Press, at http://www.rcfp.org/.