Can a Tennessee county commissioner privately solicit fellow commissioners' votes to be appointed county mayor without breaking the Open Meetings Act?

Plain-English summary

Representative Gerald McCormick asked whether a county commissioner who wanted to be appointed county mayor (filling a vacancy) could lawfully contact his or her fellow commissioners one-on-one to ask for their support, given Tennessee's Open Meetings Act. The Act bars deliberations and decisions outside public meetings. Did individually working the phones to round up votes count?

AG Robert E. Cooper, Jr. said a court would likely find such individual solicitations lawful, with one important caveat. Tennessee Court of Appeals precedent in Jackson v. Hensley (1986) treated similar conduct as lawful: a commissioner seeking appointment to a vacancy was "doing nothing more than what a private citizen, any individual, would have had the right to do under the same or similar circumstances." But State ex rel. Matthews v. Shelby County Board of Commissioners (1990) drew a hard line: if commissioners actually deliberated or decided as a group, even informally and even by daisy-chained one-on-one contacts, they crossed into the conduct prohibited by Tenn. Code Ann. § 8-44-102(c)'s "loophole closer." Mere information sharing, the AG noted, is not deliberation; deliberation means weighing arguments for and against a course of action.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's the line between lawful lobbying and an illegal private decision?
A: Lawful: a commissioner asking each colleague individually for their vote, sharing information about the candidate, getting reactions. Illegal: commissioners agreeing among themselves on a single candidate, or deliberating together (even by chained one-on-one calls) and locking in the outcome before the public meeting.

Q: Why was Jackson v. Hensley's solicitation lawful but Shelby County's planning unlawful?
A: In Jackson, Hensley individually called fellow commissioners and asked them to vote for him, then they all came to a public meeting and voted. The court said this was indistinguishable from any private citizen lobbying for an appointment. In Shelby County, by contrast, the complaint alleged that commissioners had collectively discussed candidates, decided which candidates were unacceptable, and pre-arranged votes for a "consensus" candidate before the public meeting. That was group deliberation, not individual lobbying.

Q: What does "deliberate" mean for Open Meetings Act purposes?
A: Per Johnston v. Metropolitan Government of Nashville and Davidson County (Tenn. Ct. App. 2009), to deliberate is "to examine and consult in order to form an opinion ... [t]o weigh arguments for and against a proposed course of action." Just passing information is not deliberation. Discussing pros and cons collectively is.

Q: What's the "loophole closer" provision?
A: Tenn. Code Ann. § 8-44-102(c). It says that even chance meetings, informal assemblages, or electronic communications cannot be "used to decide or deliberate public business in circumvention of the spirit or requirements" of the Act. Without this language, public officials could split a quorum into pairs, talk privately, and never trigger the formal "meeting" definition. The provision lets courts grant relief whenever the conduct violates the Act's purposes, even if it doesn't fit the literal "meeting" definition.

Q: How does this apply to other vacancy decisions?
A: The same logic governs any appointment decision a county legislative body makes. A candidate or supporter can lobby individual commissioners, but the deliberation and decision have to happen at the public meeting. A pattern of multiple commissioners gathering offline to coordinate would draw the loophole closer.

Q: What about email or text chains?
A: The Act's "chance meetings, informal assemblages, or electronic communications" language captures these. A round-robin email or text chain in which a quorum debates the merits of candidates would likely violate the Act.

Background and statutory framework

Tennessee's Open Meetings Act (Tenn. Code Ann. §§ 8-44-101 et seq., often called the Sunshine Law) declares that "[a]ll meetings of any governing body are declared to be public meetings open to the public at all times" (§ 8-44-102(a)). The Act defines "meeting" narrowly: "the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter" (§ 8-44-102(b)(2)).

That narrow definition leaves a gap: officials could split below quorum, deliberate in shifting subgroups, then arrive at a public meeting where the decision is already foreordained. The Tennessee Court of Appeals identified that gap in State ex rel. Matthews v. Shelby County Board of Commissioners (1990), which described "the crystallization of secret decisions to a point just short of ceremonial acceptance." The Act's loophole closer in § 8-44-102(c) addresses the gap by giving courts power to grant relief whenever the conduct violates the Act's purposes, even when it doesn't fit the literal "meeting" definition.

The two leading Court of Appeals cases stake out the doctrinal poles. Jackson v. Hensley (1986) is the lawful-lobbying case: an individual commissioner soliciting votes for himself one-on-one, with no group deliberation, did not violate the Act. State ex rel. Matthews (1990) is the impermissible-private-deliberation case: commissioners coordinating among themselves to pre-decide an appointment did violate the Act, even though no formal meeting took place. Opinion 10-126 maps Hensley's facts (individual solicitation for his own appointment) onto a similar mayor-vacancy scenario and concludes that, absent the kind of group deliberation alleged in Matthews, the conduct is permissible.

The 2009 Johnston decision adds a useful definition: deliberation means examining and consulting to form an opinion, weighing arguments for and against a course of action. Mere information dissemination does not count. That refinement matters because it tells commissioners what they actually have to avoid: not contact, but joint reasoning toward a decision.

Citations and references

Statutes (as of 2010):

• Tenn. Code Ann. §§ 8-44-101 et seq. (Open Meetings Act)
• Tenn. Code Ann. § 5-1-104(b)(1) (county vacancy fill)
• Tenn. Code Ann. § 8-48-111 (emergency interim successor)

Cases (Tennessee Court of Appeals):

• Jackson v. Hensley, 715 S.W.2d 605 (Tenn. Ct. App. 1986) (individual lobbying lawful)
• State ex rel. Matthews v. Shelby County Board of Commissioners, 1990 WL 29276 (Tenn. Ct. App. March 21, 1990) (private deliberation unlawful)
• State ex rel. Akin v. Town of Kingston Springs, 1993 WL 339305 (Tenn. Ct. App. Sept. 8, 1993) (Sunshine Law analytical framework)
• Johnston v. Metropolitan Government of Nashville and Davidson County, 320 S.W.3d 299 (Tenn. Ct. App. 2009) (definition of "deliberate")
• Neese v. Paris Special Sch. Dist., 813 S.W.2d 432 (Tenn. Ct. App. 1990)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-126.pdf

Original opinion text

Open Meetings Act and Appointments by County Legislative Body

QUESTION

Whether a member of a county legislative body who is seeking consideration for appointment to the office of county mayor may contact his or her fellow commissioners to solicit their support without violating the Open Meetings Act?

OPINION

We think a court would find that a county commissioner's contacting fellow commissioners to solicit their support and/or vote to appoint him or her to fill a vacancy in the office of county mayor does not constitute a violation of the Open Meetings Act, as long as there is no decision to appoint or deliberation towards a decision to appoint such commissioner to fill the vacancy prior to a public meeting.

ANALYSIS

You have asked whether, in the event that a vacancy occurs in the office of county mayor, a member of a county legislative body may contact his or her fellow commissioners to discuss and solicit their support for appointment to the office of county mayor without violating the Open Meetings Act.

Tenn. Code Ann. § 5-1-104(b)(1) provides that "[v]acancies in county offices required by the Constitution of Tennessee or by any statutory provision to be filled by the people shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next general election[.]"

Your question requires interpretation of the Open Meetings Act, Tenn. Code Ann. §§ 8-44-101, et seq. The Act provides that "[a]ll meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Constitution of Tennessee." Tenn. Code Ann. § 8-44-102(a). A "governing body" is defined as "[t]he members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration ..." Tenn. Code Ann. § 8-44-102(b)(1)(A). The Act defines "meeting" as "the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. 'Meeting' does not include any on-site inspection of any project or program." Tenn. Code Ann. § 8-44-102(b)(2). The Act further provides that a chance meeting of two (2) or more members of a public body is not to be considered a public meeting; however, "[n]o such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part." Tenn. Code Ann. § 8-44-102(c).

From these definitions, it is clear that a convening of a quorum of the county legislative body during which the members make a decision or deliberate toward a decision on an appointment to fill a vacancy is a public meeting that may not be conducted privately under the Open Meetings Act. A meeting between one commissioner to solicit the support of a fellow commissioner for appointment to fill a vacancy presents a more difficult question and requires a determination of several issues, including "whether the challenged meeting fits within the definition of meeting found in Tenn. Code Ann. [§ 8-44-102(b)(2)]" and "whether the public officials used the artifice of an apparently chance meeting or informal assemblage to conduct public business in circumvention of the Sunshine Law's spirit and purpose." State ex rel. Akin v. Town of Kingston Springs, 1993 WL 339305, slip op at *3 (Tenn. Ct. App. Sept. 8, 1993).

These questions were addressed by the Court of Appeals in the case of Jackson v. Hensley, 715 S.W.2d 605 (Tenn. Ct. App. 1986), p.t.a. denied (1986). In that case, the trustee of Roane County had resigned and designated George Jackson, a deputy in his office, to serve as "emergency interim successor" pursuant to Tenn. Code Ann. § 8-48-111 until the county legislative body could appoint someone to fill the vacancy. Gerald Hensley, a member of the Roane County Commission, learned of the trustee's resignation and contacted several of his fellow commissioners by telephone, and in one instance with a personal visit, to solicit their support and votes to appoint him trustee. Subsequently, at a public meeting of the Roane County Commission, Mr. Hensley was appointed trustee. Shortly thereafter, Mr. Hensley discharged Mr. Jackson, who then filed suit, alleging among other things, that Mr. Hensley's appointment was void as the Roane County Commission had violated the Open Meetings Act. Id. at 607. Both the trial and appellate court found that Mr. Hensley's solicitations of his fellow commissioners were not "in circumvention of the spirit or requirements" of the Act and that Hensley "was doing nothing more than what a private citizen, any individual, would have had the right to do under the same or similar circumstances." Id.

The issue arose again several years later in a case involving a vacancy on the Shelby County Commission; however, the facts in that case were significantly different. See State ex rel. Matthews v. Shelby County Board of Commissioners, 1990 WL 29276 (Tenn. Ct. App. March 21, 1990), p.t.a. denied (1990). That case dealt primarily with the issue of whether the complaint stated a cause of action for violation of the Open Meetings Act. The complaint alleged that the defendants had engaged in secret telephone conversations and/or meetings and deliberating and deciding their vote for the person to fill a vacancy on the County Commission prior to the announced public meeting. Id. at 3. Specifically, the complaint alleged that various commissioners had met and discussed personally and by telephone the pros and cons, merits and demerits of the announced candidates and decided among themselves that none of the announced candidates was acceptable to a majority of the Commission. The complaint further alleged that certain commissioners were charged with finding an acceptable compromise candidate and that these commissioners, prior to the public meeting, had secured the votes of a majority of the Commission for the "consensus" candidate. Id. The trial court dismissed the complaint, however, on the grounds that "there was no meeting in the statutory sense as defined in [the Act] until the County Commission met to elect a new County Commissioner." Id. at 2.

On appeal, the Court of Appeals first noted that one of the purposes of the Open Meetings Act "is to prevent, at non-public meetings, the crystallization of secret decisions to a point just short of ceremonial acceptance." Id. at *5. The Court went on to find:

In enacting T.C.A. [§ 8-44-102(c)] as a loophole closer, the General Assembly recognized that public officials could evade the literal "quorum" and "meeting" requirements of the Act. The provision permits the courts to grant relief when the challenged conduct, though violating the purposes of the Act, does not squarely fall within the literal definitions of the Act.

Id. The appellate court reversed the dismissal of the complaint for failure to state a claim, finding that although the conduct alleged in the complaint did not fall within the Act's definition of a "meeting," it

constitute[d] informal assemblages of a governing body at which public business was privately deliberated and decided, without public notice, in contravention of the spirit and requirements of the Open Meetings Act all of which is proscribed by subsection [(c)] of the foregoing code section.

Id. at *6. The Court of Appeals found that Jackson v. Hensley was inapplicable:

The key factor that existed in Jackson which is absent in the instant case is that there was no allegation or proof that those commissioners who ultimately voted to appoint Hensley had deliberated or decided among themselves prior to the public meeting on Hensley as the candidate to be elected.

Id. at *7.

Based upon these decisions, we think a court would find that a county commissioner's contacting fellow commissioners to solicit their support and/or vote to appoint him or her to fill a vacancy in the office of county mayor does not constitute a violation of the Open Meetings Act, as long as there is no decision to appoint or deliberation towards a decision to appoint such commissioner to fill the vacancy prior to a public meeting. We would note that the appellate courts have held that merely the dissemination of information does not constitute deliberation; rather, to deliberate is "to examine and consult in order to form an opinion. ... [T]o weigh arguments for and against a proposed course of action." See Johnston v. Metropolitan Government of Nashville and Davidson County, 320 S.W.3d 299, 311 (Tenn. Ct. App. 2009), p.t.a. denied (2010) (citing Neese v. Paris Special Sch. Dist., 813 S.W.2d 432, 435 (Tenn. Ct. App. 1990)).

ROBERT E. COOPER, JR.
Attorney General and Reporter

GINA J. BARHAM
Deputy Attorney General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Gerald McCormick
State Representative
117 War Memorial Building
Nashville, TN 37243-0126