Finance Committee Squeaks By

The question of a violation of the Open Meeting Act by the Jefferson County Finance Committee during interviews for the Director of Jefferson County Finance Office was brought following the Committee’s decision to recess their public meeting, conduct interviews privately, and then reconvene publicly. Though the meeting and interview session was publicly posted and originally thought to be open to the public, a motion to recess until the completion of interview of candidates was successful and interviews were conducted behind closed doors.

According to Ann V. Butterworth, Open Records Counsel & Assistant to the Comptroller for Public Finance, the State of Tennessee voice on government transparency, the finding of a breech of the Open Meetings Act would be fact based. In a telephone interview and via email correspondence, Butterworth indicated that it is likely that the actions of the Committee did not reach far enough to violate the Open Meetings Act. In order to be in violation of the Open Meetings Act, the Committee would have had to deliberate and, though it would be easy to unintentionally cross the line from interview for the purpose of information to deliberation, certain actions by the Committee do not favor a violation of the Open Meetings Act. Because there was little discussion regarding the interviewees or public deliberation, the assumption could have been made that deliberation took place outside of the public meeting. However, that fact is off set by a failed first motion to employee one of the candidates, which would have been unlikely to happen had there been prior deliberation. The second motion of the Committee was successful, again without serious deliberation but the dissenting vote of the Chairman, due to lack of deliberation, again fails to meet the bar for violation of the Open Meeting Act. In an email Butterworth stated “…even if the closed meeting was found to be in violation of the Act, if the Committee when it reconvened the properly called meeting conducted substantial consideration of the candidates and the reasons for the selection of the new finance director, such action would not be deemed void. The actions and behavior of the Committee after reconvening do not clearly include full discussion in the public meeting, yet the two motions indicate there was not a determination prior to the meeting. A court may further consider the past behavior of the Committee to determine if there is a pattern of avoiding “openness” in violation of the spirit of the Act: that “formation of public policy and decisions is public business and shall not be conducted in secret.”

In an Opinion from the Tennessee Attorney General regarding a case that had a reasonable likeness of fact to the actions of the Finance Committee, the Attorney General supported Butterworth’s statement that the question of a violation of the Open Meetings Act is fact based and must support that deliberation occurred outside the scope of a public meeting. When questioned if she would have advised the Committee against the course of action that they took during the December 12, 2014 meeting, she stated “Yes”. In discussion with Butterworth, she expressed that, while the impression of impropriety may not transfer to a technical violation it is advisable to avoid the question of a violation.