The Tennessee General Assembly’s habit of sticking it to the press by meeting behind closed doors is once again being challenged.
In recent weeks, former television newsman Mark Mayhew filed a lawsuit claiming that private meetings conducted by state lawmakers violate the state Constitution and the Open Meetings Act. The Nashville Scene, the on-line Nashville Post, and state Rep. Rob Briley, a Democrat from East Nashville, have signed on as plaintiffs. A hearing is scheduled for July 27 before Circuit Court Judge Hamilton Gayden.
“It’s called the democratic process. People have a right to know under the federal and state constitutions about the process of government,” says George Barrett, one of the lawyers representing the plaintiffs.
Lawmakers have always met privately to divvy up the few million dollars in annual public money for pork barrel projects. Most reporters were happy to be barred from covering this unseemly and largely inconsequential feeding at the trough.
But in 2000’s agonizing session, panicky lawmakers began hiding from public scrutiny by meeting secretly to debate taxes to fund the entire state budget.
What they eventually adopted was not exactly a monument to fiscal stewardship. The budget, which was vetoed by the governor only to be quickly overridden, included neither tax reform nor spending cuts, but instead relied on optimistic revenue projections and the allocation of one-time money. Not surprisingly, the state’s bond rating quickly slipped as a result of this slipshod spending plan.
Barrett asks the court to throw out the Legislature’s new budget since it might have been an outgrowth of various secret and shady meetings.
Given that members of both the House and Senate met privately to discuss the budget, the lawsuit seems like a slam dunk. But state statutes are typically brilliant exercises in verbal ambiguity, and the veteran attorney will face a tough battle proving the state acted in violation of its own laws. Both the state Constitution and the more specific Open Meetings Act may have loopholes that allow lawmakers to shut out the press from their deliberations.
For example, the state Constitution says that “the doors of each Houseäshall be kept open, unless when the business shall be such as ought to be kept secret.”
In the past, the state attorney general’s office has argued that that provision doesn’t apply to the various committees and subcommittees of the General Assembly, but only to the House and Senate as a whole. In addition, the last clause of the provision also seems to give the Legislature the discretion to choose which matters should be debated privately. It is, as local attorney Forrest Shoaf points out, “the exception that swallows the rule.”
The Open Meetings Act, however, is more specific. It states, “the formulation of public policy and decisions is public business and shall not be conducted in secret.”
But citing the above language in the Open Meetings Act, lawmakers say they can deliberate privately so long as they don’t actually initiate legislation or hammer out a budget. In other words, they can meet behind closed doors so long as they are just discussing tactics or procedure.
“As long as no action is taken, legislators can get together and discuss governmental business,” says Jim Shulman, a Metro Council member and chief of staff for House Speaker Jimmy Naifeh, who has presided over more than his share of closed meetings. “Sometimes it’s helpful for members to sit down and talk by themselves.”
However, the lawmakers’ argument that they can deliberate privately providing they don’t discuss actual policy is about as disingenuous as the budget they crafted. After all, if they are meeting behind closed doors, who is to say whether they are talking about changing TennCare’s benefit plan or whose turn it is to pick up lunch? And in any case, during this past session at least, secretive lawmakers were almost certainly discussing public policy as they were trying to figure out ways to balance the budget.
Obviously, the intention and scope of the Open Meetings Act is subject to debate. The great benefit to this lawsuit is that it should clarify the matter once and for all. Says state Sen. Bob Rochelle, who took part in some of those secret meetings as chair of the Senate and House Conference Committee, “A lawsuit is fine, because you get a decision on what the rules are.”
Regardless of how the courts interpret Tennessee law, few can argue that legislators haven’t violated the spirit of the Open Meetings Act, which was meant to foster accountability. One would think that an indignant state press corps would rise up and revolt. Think again. As of press time, only the Scene and the Nashville Post, which rank near the bottom on the media food chain, have signed on as plaintiffs.
Says Ted Carey, one of the plaintiffs’ attorneys, “We think that the media is less interested in enforcing their rights under the First Amendment and more interested in other priorities which may include their bottom line.”
Matt Pulle can be reached at 244-7989, ext. 445. Or you can e-mail him at mpulle@nashvillescene.com.
