Monday, September 26, 2011

Did commissioners violate Sunshine law?

On Saturday, Brian Hornback posted this – click right smack here about Commissioner Amy Broyles and what he – and quite a few people at the Deathstar today who read his blog – felt was a possible Sunshine law violation.

You know? That little rule you’re supposed to follow when you’re a commissioner and you want to hang out with your buds and not get in trouble.

Here’s the deal I got from talking to commissioners: Broyles, who was in the hospital recently, wanted to catch up on some of the recent audit committee discussions. So, she sent some folks this email:

“Commissioners Amy Broyles and Ed Shouse will meet at Panera Bread in Bearden (4855 Kingston Pike) on Sunday, September 25, at 3:00pm. Other Commissioners may be present. The public and press are invited.”

(Shouse, by the way, is a member of the audit committee.)

I got the email at 4:52 p.m. Friday, according to my delete folder where I dug it out of because that’s what I do with those things. Because I’m immature that way. Heh. (OK, that wasn’t fair. I have actually gone to one of Broyle’s meetings.)

It appears Amy sent that to me personally. Going back through the junk box of bad boys I also found the exact same email sent to me again, but this one was at 8:18 a.m. Saturday. It also included a bunch of other email addresses. So, lots of people got it. On Saturday.

At issue is whether the meeting was adequately publicly noticed. I don’t recall seeing it on the county’s Web site, but who checks that thing anyway?

I asked Joe Jarret, the county’s law director, about it during today’s commission luncheon and he said Tennessee Code says officials need to give “reasonable public notice.”

And there is the problem. What’s reasonable? Jarret felt 48 hours was a good number.

He also emailed me this during the luncheon:

Mike, here's the latest analysis:

What constitutes adequate public notice depends on the totality of the circumstances. In Memphis Publishing Company v. City of Memphis, 513 S.W.2d 511, 513 (Tenn. 1974), the Tennessee Supreme Court declared that, "[a]dequate 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." See also Neece v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990).

Mike, based upon the above, the courts have issued inconsistent rulings. If a court ruled that notice was inadequate, then any action taken by the members present, presuming they had a quorum, would be considered void and of no effect.

Hornback got a similar email. Check it out right smack here. Jarret also reiterated to him the 48-hour thing.

Oh yeah – almost forgot. Broyles and Shouse did meet for several hours. They were joined by Commissioners Richard “The good doctor” Briggs and Dave Wright. In addition, radio talk dude Hubert Smith and Dan “the man” Andrews were there.

The group talked about audit stuff and then the proposed Carter Elementary School.

Anyhoo, I talked to Wright about the meeting and he said “it wasn’t kosher” that Broyles didn’t give more than 48 hour notice. He said “someone” called him Saturday to give him a heads up about the meeting.

Commission Chairman Mike Hammond agreed.

“I want to talk with Joe Jarret about this,” he said. “We need to get some clarification. When we do these things, someone has to take notes and there has to be an agenda. It’s probably time to have Joe weigh in on this again and refresh us.”

He also said he wants to put it on the chairman’s luncheon next month. (The commission meets for lunch between 11:30 a.m. and 12:30 p.m. on commission meeting days. Yes, they are adequately notified.)

Commissioner Jeff Ownby, who was with Wright and Hammond when I approached them about this, said he didn’t get a notification until 7:50 p.m. Friday, but he didn’t see it until Saturday.

Shouse said he got his some time Friday but he’d “prefer a 72-hour” advance notification.

None of the commissioners I spoke to said they felt there was a violation, but they weren’t exactly thrilled at the timing of the email.

I also talked very briefly with Amy about it. She didn’t seem concerned, and said that she had a number of email addresses on hand, so she sent them out as soon as she could Friday; and then later that night – when she had rounded up all her other addresses – sent out another email. (She also made a comment during the luncheon that the meeting was "sunshined".)

So, you can decide whether the commissioners violated the Sunshine law. Keep in mind that it wouldn’t just be Broyles. Although she sent out the email, three other commissioners attended the meeting.

I’m just glad they didn’t vote.

Credit goes to the rogue for pointing this out. Also, Dan Andrews has a video of the meeting but was having problems uploading it to Youtube, since it was too large of a file. He said he might be able to upload it later. If so, I'll post a link to it.

If it's as riveting as most commission meetings, I'm sure you'll all watch it.



Brian Hornback said...

I did not realize that Hubert Smith & Dan "the man" Andrews attended. I would have Sunday, but I had family commitments. I like you have attended oe before. I just wish these things would happen at the Dethstar during weekdays. There is just a perception of sneakiness.

Mike Donila said...

Absolutely, I agree.

Anonymous said...

Amy Broyles and Tony Norman somehow think they are Super Commissioners. They aren't. They just waste time with their childish tantrums. I wish they would both grow up and show some respect.

Amy Broyles said...

Thanks for the comments, guys. Joe has always told us that 48 hours is considered reasonable notice, and that is what we all prefer. I know there have - rarely - been meetings in the past when only 24 hours notice have been given. There is no question that the more advance notice the better, but sometimes it isn't possible if extenuating circumstances exist.

I sunshine a lot of meetings, and if you look back through them, you can see that Sunday afternoon is not my preferred meeting day. It is usually the only day our entire family has together, and I would much rather be with them.

You would also notice that I almost always sunshine a general meeting during the week between the Commission Work Session and the Commission Meeting. Normally it is on a Friday, but Rick has asked that it be moved to Thursday because his clinic hours at the hospital have changed, and he likes to come to these meetings.

Dave usually comes too, and Ed, Sam, Tony, and Hammond have all dropped in from time to time. Jeff and Larry have also come to one of my sunshined meetings at the Time Warp. Larry Van Guilder, Betty Bean, reporters from WBIR and WATE, Hubert Smith, and Dan Andrews have all attended at one time or another, and some more regularly than others. Usually there are a couple of constituents that come, or some folks from various county departments. We have juggled the time around to try to make it easier for more constituents to attend, but haven't had much luck.

What changed this month was that I had a pretty big surgery the week before, and could not attend last week's work session. It also was inadvisable for me to get out on Thursday or Friday. Sunday was the best I could do, physically, and it was also the best time for Ed because of other obligations he had.

I do have an attendance list, and minutes. The reason I set up the meeting specifically with Ed was because the topics I needed to get caught up on were in what most of us consider his area of expertise - finance. Dave and Rick were there too, and I was glad to see them there. A four person discussion is usually better than a two person discussion! Dave's wife Pat was there, as were Dan Andrews and Hubert Smith, and they all joined in the discussion too. I thought it was a good meeting.

We actually discussed four topics:
1. The RFP for an auditing firm for the county's yearly audit. We are down to two candidates now. I missed the last Audit Committee meeting - it was on the same day as the Work Session, exactly one week after my surgery - and I needed to discuss what happened there.
2. Approving a contract with Bass, Berry and Sims to be our new Bond Counsel. We had a good discussion on this - everyone agrees that BB&S are a great firm, but some people in the community have been upset at the manner in which the RFP process was handled.
3. Approving a contract with Morgan Keegan & Company and Scott & Stringfellow for Financial Advisory Services. Another good discussion.
4. New school for Carter. Most of this discussion took place because Dave was there. Yes, I would have asked Ed his opinion on it if Dave had not been there, but Carter School was not the reason I asked Ed for this meeting.

I hope this clears up any misconceptions out there. Sneakiness is not my style.

Mike Donila said...

Amy, thanks for clarifying. I don't think we were accusing you of being sneaky. It's just a perception. It would be the same if any commissioner did it. I should have noted that in the past - when you meet at the time warp cafe - you do send out notices well in advance.

Anonymous said...

When are you going to learn not to follow Hornback?

Mike Donila said...

Commissioner Amy Broyles asked me to post this for her. For some reason, blogger isn't taking all posts. If this happens to you, just email me and I'll put it up I'm doing this in two parts. - Mike Donila

Here's Amy's comment:

Not a problem Mike. A couple of other things that might make this a little more understandable - granted, it is an unusual situation.

I almost always ask Jolie to sunshine all my meetings, and she does so during business hours.

Earlier in the week, I wasn't sure I would be up for a meeting, so didn't extend an invitation to Ed until around 2:00 on Friday. I called and left a message for him asking if he could meet with me on Sunday or on Monday morning.

However, schools were out on Friday, and he and his son were out enjoying the time off together and he didn't get my message until much later in the day. He called me at exactly 7:00pm Friday and we agreed to meet at Panera in Bearden on Sunday afternoon (Time Warp is closed on Sunday). As Ed is on the Pension Board, adding one more meeting on Monday morning was not the best thing for him, so he preferred Sunday.

I immediately sent a request to Jolie's personal email asking her to sunshine the meeting (it was after business hours and I felt she would be more likely to check personal email than work email). However, I also sent out a notice myself, just in case she didn't get the request. I sent one out to the other Commissioners and to Mike Donila a little before 8:00.*

I then searched back through some of Jolie's previous notices, and sent out the notice again to the list she sends them to. That notice went out about an hour after the first one.** Why it landed in some email boxes on Friday evening, and why it didn't land until Saturday morning in others - and why Donilla's email time stamp is two hours before I actually sent the email - are phenomena I cannot understand nor explain - along with almost anything else having to do with computers (I could probably get my 5 year old to explain it though).

Mike Donila said...

This is part 2 to Amy's post - Mike

Was it a 48 hour notice? No, it was a 44 hour notice. Was it sent out during business hours? No, but only because the details of the notice were not available until after 7:00pm. Was it sent out by the Commission's administrative staff? No, but that has never been a requirement of public notices - several Commissioners have sunshined meetings without going through our office. Was it on the County website? No, but only because I haven't been taught how to do that, and there was no one else to do it after business hours. Was the meeting set up for a weekday? No, but I have already explained that one, and there is no requirement that they be held on a weekday anyway (several Commissioners have scheduled meetings on weekends).

I know this is a lot of detailed information. But I am disappointed, given my record of openness, inclusiveness, and honest communication (and lots of previous meetings), that I was not granted the benefit of the doubt here.

I am disappointed that anyone who works with me or has followed my service on Commission, would think I was doing anything other than trying to get a meeting set up under some very extenuating and trying circumstances, so that I could complete my due diligence before Monday's Commission meeting.

I would also hope, in light of the impact this recent surgery has had on my body and mind, and the uncertainty it brought to my schedule, that I would have been granted a little compassion and understanding.

I also think this situation has highlighted, yet again, the issue of civility in politics and how we treat our public servants - and why it is so darn hard to get good people to run for office.

Hope this answers everyone's questions, although I am certain there are those out there who will enjoy picking it apart.

Mike, you write a great blog, and I always enjoy reading it. There are other bloggers out there who could learn from you.

And thanks for reading this (I realize it is a bit long). It feels good to get the whole thing out there, and in one place. Screams from the Porch is a good place to do that!

* I don't remember why I sent a notice only to Donila along with all the other Commissioners. I guess he popped into my mind first when I started thinking about media who cover the Commission. Then I thought to look for Jolie's list to get the rest. I apologize to the other media folks out there. You all do great work and you are all important.

** Several of the emails bounced back as invalid email addresses. I am planning to follow up with Jolie on this and see if we can clean up the list a little.