More than 22 year ago, a group of citizens in Englewood filed a lawsuit against their city, alleging that their Board of Commissioners did not provide adequate notice of a meeting in which it selected a route for a highway expansion project.
The case reached the Court of Appeals, which established a three-pronged test still relied upon today when considering if a public notice of a special-called meeting is adequate under the requirements of the Tennessee Open Meetings Act.
It’s a test that came to mind recently when some citizens in Ridgetop in Robertson County complained that their board of mayor and aldermen did not give adequate notice of a special-called meeting in which they decided to dissolve the town’s police department.
The town of Ridgetop posted notice on the Thursday before the Monday meeting at city hall, the post office and a local bank. It specified at the bottom of the notice that it was a “meeting on the budget and police department.”
The parallels with the Englewood case are noticeable.
In Englewood, the town commission had posted the special-meeting notice at city hall, the post office and a local bank two days before the meeting. Its notice read:
1. Letter to State concerning HWY 411.
2. Police Salary Supplement pay
3. City Recorder
The Court of Appeals in Englewood Citizens for Alternate B. v. The Town of Englewood (1999) ruled that was not enough.
The Tennessee Open Meetings law, passed by the General Assembly in 1974, states that a governing body must give “adequate public notice” of all of its regular and special meetings.
The statute doesn’t specifically outline how many days or what type of specificity in the notice constitutes adequate notice. This caused the Open Meetings Act to be immediately challenged upon passage by the city of Memphis who said the act was so vague that officials would not know how to comply.
In a ruling that still smacks at the feigned perplexity so tiresome when encountered in government officials resistant to open government, the Tennessee Supreme Court rejected the “we-don’t-know-what-to-do” argument and upheld the law.
It explained in Memphis Publishing v. City of Memphis (1974) “…adequate public notice means adequate public notice under the circumstances, or such notice based on the totality of the circumstances as would fairly inform the public.”
The Supreme Court’s decision, in many ways, gave flexibility for the variety of circumstances and types of governing bodies under the law, while essentially requiring government officials to be grownups and do what they must know is the right thing in notifying the public about their meeting agenda.
In Englewood, the Court of Appeals offered further, if somewhat obvious, guidance in its three-prong test:
- The notice must be posted in a location where a member of the community could become aware of such notice.
- The contents of the notice must reasonably describe the purpose of the meeting or the action proposed to be taken.
- The notice must be posted in enough time to give citizens the opportunity to become aware of the meeting and to attend.
So did Englewood pass the test? The court said no. While it posted the notice where people could see it and in enough time for people to see it, the contents of the notice were too vague.
To qualify as adequate notice, the court said “the general public must be made aware of the issues to be deliberated … through a notice designed to inform the public about those issues.
“We find that under the circumstances presented, the content of this notice was so lacking that a person of reasonable intelligence would not adequately be informed by the cryptic statement ‘Letter to State concerning HWY 411.’ Instead, a more substantive pronouncement stating that the commission would reconsider which alternative to endorse for Highway 411 should have been given.”
Did the Ridgetop board pass the three-pronged test in their notice of the meeting in which they dissolved the police department?
That would be up to a judge to decide, based on the “totality of the circumstances as would fairly inform the public.”
In this case, saying only in the public notice that the meeting is “on the budget and police department” seems to leave out the fairly significant nugget that the council would be voting on dissolving the police department.
Put yourself in the seat of the Ridgetop mayor and aldermen. If you were having a meeting in which you were might vote on eliminating the police department, what would you say to flag the public?
For that matter, if you were an alderman and received a notice for a meeting “on the police department,” would you feel it sufficient enough to prepare you to intelligently discuss and vote on dissolution of the department?
In those simple questions, I hope Tennesseans can begin to find some answers.
Deborah Fisher is executive director of the Tennessee Coalition for Open Government, which has provided education and advocacy on open government since its founding in 2003.