While Michael reacts with stunned disbelief and outrage to the story that 4 Knox County Commissioners, including two of the newly appointed ones, admit to having private discussions about public business, I'm not surprised at all.
While the trial was going on, I talked to a couple of the commissioners, and even though the actual law in question only prohibits private deliberation and decisions.I heard more than once that if they lost, they said would feel prohibited from having any discussions in private. At the time, I felt that was something of a childish attitude to take, but it turns out that there may be something less than childish going on.
In the story I linked, County Law Director John Owings is quoted as saying that
"The court has really gone beyond deliberation." The law prohibits private "deliberation" by members of the same body, but Owings said, "This body is enjoined from discussing any topic or any matter that may come up in the future."
A quick reading of the actual decision shows that once again, Mr. Owings gets it wrong.
In accordance with Tenn. Code Ann. §8-44-106(c) the Knox County Commission and its members are permanently enjoined from further violation of Tenn. Code Ann. §8-44-101, et. seq.. More precisely the Knox County Commission and its members are enjoined from engaging in any chance meetings, informal assemblages or electronic communications consisting of, or between, two or more members of the Knox County Commission for purposes of deciding or deliberating public business in circumvention of the spirit or requirements of the Open Meetings Act.
The Chancellor's decision enjoined them from violating the law, nothing more. So why does Mr. Owings act like Fansler placed an impossible burden on the County Commission? Let's dig a bit deeper into the decision.
Generally, inquiries by individuals to a public entity as to when the entity would meet to act upon a particular matter do not constitute a violation. Southern Valley Grain Dealers Assoc. v. Board Of County Commissioners, 257 N.W.2d 425 (N. Dak. 1977). An individual member of a public body would not violate the law by communicating items to be added to the agenda to the person in charge of assembling the agenda and sending copies to other members. Schwing, supra, §6.86. However, when the discussion regarding the time and place of the meeting or the agenda to be established, goes beyond such purely procedural issues, then the Open Meetings Act may be violated. It is substantive issues that are covered by the Open Meetings Act. Once the discussion goes beyond the purely procedural matters of when to conduct the meeting and delves into a discussion of the merits of substantive issues then the requirements of the act are invoked.
In other words, according to the decision, Commissioners DeFreese and Pinkston were not in violation of the Open Meetings Act or the injunction when they discussed the appropriate time for a meeting.
So why is Owings acting like they were?
Anybody remember when you were kid, and your parents had a rule you didn't like, so you followed it to the letter, using no common sense at all, just to drive them nuts, and get the rule lifted?
Yeah, me too.
It may be that some folks on the County Commission believe they can achieve the same thing with the Open Meetings Act.
Posted by Rich at March 25, 2008 8:56 PM | TrackBack