Column: Is Tennessee ready for the slippery slope of legislating by phone? (3/11/21)
By DEBORAH FISHER - Executive Director, Tennessee Coalition for Open Government
During the pandemic, members of local and state governing bodies have been allowed to conduct meetings electronically per executive order by Gov. Bill Lee.
They have not had to hold physical meetings in a physical place. They can hold meetings on Zoom or even by telephone conference call, as long as they allow the public real-time live audio or video access and follow other rules.
In some instances, this has meant that the governing body is on videoconference, and the public must show up physically at city hall to watch them through a government computer.
It has not been ideal for citizens, who have lost the benefit of interaction with their representatives before and after physical meetings of county commissions, city councils and zoning boards. But the minimum — the ability to follow the discussion, know who is speaking and how a person is voting — has been protected under provisions in the governor’s executive order.
After the pandemic eases, the regular rules of Tennessee’s Sunshine Law will go back into effect. But some local elected officials, county commissioners specifically, want to continue to be able to patch into a meeting and vote by phone instead of physically attend.
Problem is, this time around, the protections for the public that were carefully preserved in the governor’s executive order would disappear.
House Bill 327 and Senate Bill 301, sponsored by two Knoxville lawmakers at the request of the Knox County Commission, would permit almost half of a county legislative body to participate and vote in a given meeting by calling in instead of appearing in person if they meet certain requirements.
A healthy debate should take place on whether legislating by phone and not in front of constituents is a good idea. The Tennessee Constitution prevents state lawmakers from doing this.
But if the General Assembly thinks it’s important to allow county commission members to call in and debate and vote by phone, then surely the public needs protections to assure that citizens can hear and understand who is talking on the phone at any given time and how those members vote.
How did such legislation emerge? The idea as presented by its sponsors is noble and kind. It would allow county commissioners who are having a family emergency or medical emergency to stay at home and still participate and vote in a meeting. However, it’s unclear what would constitute a “family emergency” or even “medical emergency.” The legislation gives authority for that determination to the county commission, raising questions about potential misuse or abuse.
Another reason is more straightforward — the member is out of the county for work, but even that could be abused. The fourth reason is specific and seems unlikely to be abused — the member is called into military service.
The bill requires that a quorum of the county legislative body be at the physical location of the meeting before other members are allowed to call in and vote by phone.
For example, on a county commission with 25 members, only 12 members could call in for any given meeting. On the 40-member Metropolitan Council of Nashville and Davidson County, only 19 members could participate electronically at the same time.
While it may seem an unlikely scenario for so many to call in, the bill permits it. And it would not be completely outside the imagination that with such large governing bodies, you might have six or seven people taking advantage of the electronic participation. Like with any slippery slope, we ease into new realities slowly.
The legislation creates an exception to the entirety of the Open Meetings Act, not just the section that sets out rules on how electronic participation in meetings should take place — rules that have been developed largely for state boards. This means if the legislation became law, it would trump where it conflicts with any part of Tennessee’s open meetings law.
The bill instead envisions that the county legislative bodies would come up with their own rules to protect the public’s interest in open meetings.
This assumes that each of the state’s 95 county legislative bodies would impose stricter standards on themselves than what is required in the open meetings law — an idea that deserves more examination and thought.
Finally, the bill’s sponsors point to a natural limitation in the legislation: An elected official could participate electronically in only two commission meetings a year.
It’s a seemingly small hole in the open meetings law for the state’s 95 county legislative bodies. But if passed, it likely won’t be long before city councils, boards of aldermen and other local governing bodies ask for the same. And the limits of twice a year? Why not three? And how about expanding it to county budget committee meetings, too?
We should proceed cautiously and thoughtfully down this route of permanent exceptions to the open meetings law.
The enthusiasm of an elected official for more personal convenience should be tempered with the duty of appearing before the public they represent and conducting business in the open.
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