Sunday, November 18, 2007

Shelby County Commissioners Asked To Vote In Support Of Secret Meetings

Shelby County Commissioner Steve Mulroy has developed a reputation during his 13 months in office as someone who acts on his heartfelt belief in American liberalism.

That’s why it’s so hard to fathom his sponsorship of Monday’s resolution urging the Tennessee Legislature to gut the Tennessee Open Meetings Law.

Maybe he’s come under the spell of the Neanderthal thinking of the head of the Tennessee County Commissioners Association, David Connor, who surely would have flunked a polygraph test when he insisted that changes in the law aren’t about avoiding public scrutiny.

“It’s more to the fact that there are some circumstances that the public and taxpayers’ interests are better served by meeting in closed session,” he proclaimed.

If he’s so sure of this, would he like to let us taxpayers vote on this? After all, it’s not like these elected officials aren’t conducting personal business or paying the costs of their decisions. We are.

It’s called a public meeting not just because it’s an open meeting, but because it’s the public is paying the freight – for the bills being passed and for the salaries of the people involved.

It seems a contradiction to those who know Commissioner Mulroy that he would devote his considerable talents to saving a rundown theme park while trying to devastate a law that gives the public confidence that they know the reasons and the rationale for the bills passed by their government officials.

After all, not only will the changes in the so-called Sunshine Law allow secret meetings attended by almost all members of a public body, but it will in turn eliminate much of the public discussion that now takes place and gives taxpayers more insight into legislation. In weakening the law, back room deals can be cut in secret so that at the meetings of the public bodies, for example, votes can be taken without any real debate or discussion, denying taxpayers key information into the decisions.

In other words, changes in the Sunshine Law are all about serving the interests of politicians, rather than the public.

It all goes to show how tone deaf some politicians can be. Investigations and convictions are reason enough to think that they would put some of their energy into restoring public confidence, but in addition, there has never been more games played by government in stonewalling requests for public records and delaying responses.

A television reporter has been waiting six months for the public records that she requested from City Hall, and she considers city government the most responsive of the governments she covers. It should come as no surprise that citizens routinely wait even longer, and that when they come, the records are often designed to obfuscate and require follow-up requests aimed at more delay.

But back to the public meetings law, there’s no denying that there are some minor adjustments that could be made to clarify the law, but the amendments being proposed by the ill-named Joint Study Committee on Open Government take a meat ax to a law that has served taxpayers well for decades.

Proponents for taking drastic action on the law have presented no credible evidence of a serious problem that deserves such draconian action. As for Commissioner Mulroy, we want to chalk all of this up to the naivete that comes with a new elected official, but in sponsoring this resolution, he’s doing more than showing inexperience. He’s abandoning some founding principles of liberal political philosophy – the one about open, transparent, citizen-focused government.

It’s almost as if Memphis just can’t shake all the vestiges of the Crump era.

In light of Commissioner Mulroy’s resolution, we reprise our October 24 post:

Legislators Work To Weaken Sunshine Law And Open Government

Giving more evidence of a general lack of sensitivity by some elected officials about the need to restore the public’s confidence in their governments, a committee of the Tennessee Legislature seems intent on gutting the Tennessee Public Meetings law.

As we pointed out in yesterday’s post, violations of the law have become widespread and routine. While there are some minor clarifications that are needed, the state legislative committee yesterday chose to take a meat ax to the heart of the law.

Its proposed changes in the law would allow any number of members of any public elected body, public board, public commission or public agency to meet secretly whenever they like as long as they don’t represent a quorum.

The Dirty Dozen

In fact, the changes in the Sunshine Law recommended by the legislators yesterday in Nashville are so outlandish that it would have been legal for the Knox County Board of Commissioners to secretly select commissioners for eight vacant seats and four fulltime elected officials. As we wrote yesterday, that’s exactly what those commissioners did, and a judge and jury kicked all 12 of the secretly chosen officials out of office.

While we are sensitive to the concerns explained by some ethically-minded officials like Shelby County Commissioner Mike Carpenter in a comment to yesterday’s post and they deserve attention, there’s nothing about the recommended change by the study committee in Nashville that passes the smell test.

If the Sunshine Law is changed, it would mean that six City Council members or six Shelby County commissioners could meet in secret to discuss the public’s business.

The Designated Hitter

And forgive our cynicism, but if six are allowed in the meeting, it would be pretty easy to involve a seventh – which would mean that the group had the majority votes to pass whatever they like. All it would take is for one of the six to leave the room and allow the seventh person to take their place, making sure that there’s only six people in the room at the same time. (Update: this original proposal has now been changed to no more than four members of a public body, but for us, that number remains too large.)

It’s all a bit reminiscent to us of the early days of Shelby County Government. In those pioneer years in this wilderness community, the county legislative body was the law of the land - administration, judicial and legislative. As a result, when a member was arrested for public drunkenness, enough members kept leaving the room to make sure there was never a quorum to convict him.

Somehow, there are days when the notion of drunk members of public bodies would at least make some of their decisions make sense.

Changes in the Sunshine Law would ensure that meetings in an Internet age would become throwbacks to the back-slapping days of local politics, when the meetings of the three-headed administrative branch of county government – the structure of county government before the mayor’s job was created by public referendum in 1974 - actually lasted less than three minutes.

Pray For Wisdom

It happened because the three officials met privately before their public meeting and cut their deals. When the public meeting convened, they would often make a motion to approve the entire agenda, pass it and adjourn before most people had even sat down.

Frequently, the prayer to open the meeting lasted longer than the meeting itself, making the invocation one day especially insightful. With the officials calling on their budget director to open the meeting, he delivered one of the most eloquent prayers ever delivered at the meeting of a public body -- “Lord, forgive them for they know not what they do. Amen.”

But back to the present, leading the attack on open government in Tennessee is Memphis Rep. Ulysses Jones, described by the Nashville Tennesseean as a “longtime critic of ethics reform.” Now that’s a mantel that someone should be proud to wear, made even more ironic by the reality that the state legislature already has a incredibly low standard for public debate and discussion. It’s always more than passing strange to us that an African-American politician leads the fight against open meetings, since African-Americans were so systematically excluded from the machinery of government decision-making for so long, and laws like this opened up the public processes for the first time.

Members Only

Already, the Tennessee Legislature regularly shuts out the public when they ascend to Capitol Hill as if it’s Mount Olympus, but apparently, some of its members want to make sure that all levels of government in Tennessee pull in the welcome mat to the public who pays their bills, who funds their programs and suffers the consequences of their actions.

Already, the Tennessee Coalition of Open Government is sounding the alarm about the danger of this change in the Sunshine Law, and all of us ought to be taking up the challenge to defeat this legislation. We hasten to add that there are some public-minded elected officials who will undoubtedly oppose these heavy-handed amendments to the Sunshine Law, and they need to hear from us, too.

The 18-member special study committee had divided into two subcommittees – one for the open records law and one of the open meetings law – and recommendations are expected to be voted on by the General Assembly in 2008.

The Cure

It’s worth remembering that our state’s laws aren’t particularly onerous or strict. While there are some areas that need clarity (so there aren’t 95 county attorneys giving 95 different interpretations of the law), the last ranking that we saw by the Investigative Reporters and Editors ranked Tennessee 45th in the effectiveness of its Sunshine Law.

Actually, if it were as strict as some opponents try to make out, there wouldn’t be such widespread violations. After all, the remedy to “cure” a violation is pretty simple – deliberating and debating the same issue in public session. And what are the draconian consequences for a public body if a newspaper or activist actually wins a lawsuit? The action by the public body is voided, which means that it has to have a “do over” in a public meeting.

To hear some statewide organizations representing public officials tell it, all of this creates some incredibly unbearable hardship on them. In the end, that is more a commentary on who their true master is – their own personal political interests rather than the public they took an oath to serve.


Amy said...

I respect the concerns raised in the editorial, but Steven's reasons for taking this position are not "hard to fathom." He explained them in detail in a C-A op-ed last Thursday. I'd appreciate it if you could provide the link so folks can have the other side and decide for themselves.

Anonymous said...

While you are at it read the response to that op-ed. From a citizen who seems to understand. There is a history of reasons for this law and those reasons still seem to be valid; especially in Shelby County Tennessee.

"This "well-meaning reform that superficially sounds good actually makes government worse" issued from the pen of former newspaperman, state senator, and General Sessions Judge Jim White.

Again, what's the hurry, Mulroy, that the people's business can't wait until the appointed public meeting times?

Has anyone ever been prosecuted for the "Items" you set up, or are they just straw dogs? No law is perfect. The real issue is what law is least imperfect..."

gatesofmemphis said...

In line with the examples posted in Commissioner Mulroy's CA piece, perhaps we should change the open-meetings law to allow a much broader use of communication technology, as long as the communication is real-time, transparent, accessible and persistent.

For instance, if commissioners want to talk on the phone, they call a permanent County Skype conference call, a party line if you will, allowing read-only access from members of the public (real-time and transparent) and requiring recording and instantaneous posting to the County's website (accessible, transparent and persistent). Email correspondence from the Commissioners to one another is automatically and immediately routed to a County blog or twitter account. If Commissioners want to meet outside of regular meeting times, they meet in a special, publicly accessible conference room with voice-activated video recording and instant posting of the vodcasts.

It may sound like science fiction, but the technology to do this inexpensively is here now. This will allow a more flexible deliberation -- in tune with technological possibilities -- without sacrificing openness. In fact, it could make government even more transparent.

Before moving back to 1950 (choose your favorite boss -- Crump or Stalin), we should figure out what's possible in 2007.

Anonymous said...

I read the CA op-ed piece and all I can say to Mr. Mulroy is that this is BAD TIMING. With the lack of public trust in elected officials, now is not the time to attempt to change this law. If I were Mr. Mulroy, I would want to do whatever I could to ensure the public perception is that all meetings and conversations between elected officials is in the pubic.

Smart City Consulting said...

As we've said, there may be reasons to amend the law so that two members can talk over the public's business, but that's not what the proposed amendment does. In the end, it destroys this law.

Good comments about this and we appreciate it.

What's interesting is that none of the politicians can see this from the public's point of view. If they could, they would conceive of remedies that serve the interests of the public, rather than remedies that make their lives easier as politicians.

Also, there seems to be some misplaced notion that this is about the media. More to the point, it's about the public, citizens, taxpayers all, who deserve to know what's being discussed as fully and openly as possible.

Anonymous said...

It sounds like you jsut don't like Steve.

Tom Guleff said...

The op-ed piece by S. Mulroy was cute, but what is so vital to our national security interests here in Shelby County that we can't live under current sunshine laws. Are we about to invade Mississippi ?

Anonymous said...

don't need to invade.

Just tax their income as a 'privledge' for working in willy world.

Smart City Consulting said...


Actually, we do like Commissioner Mulroy, and it's because of that respect that we hope for greater things from him than eroding the public's right to know what their elected officials are deciding.

Commissioner Mulroy says in an email to others today that he hopes every one will read his op-ed piece in The Commercial Appeal and is puzzled as to why we can't "fathom" his decision in light of what he wrote.

Actually, we appreciate the examples that he provided, but we can't fathom his logic in determining that these examples justify such drastic damage to the law.

Anonymous said...

What's being said behind the closed doors that they are so scared we'll hear?

Anonymous said...

Steve is a constitutional lawyer. What about the public's right to know?

Anonymous said...

It's always about them, and not us.

Anonymous said...

Amy: Steve wrote his explanation. but it didn't give us any particularly compelling reasons. He may think he's put on a great case, but the jury on this one, the public, is never going to return the verdict that he's right. Even if all the other county hacks agree, he's just blown this one and let us all down.

Tom Guleff said...

We need to check the water supply, ASAP. Whatever water fountain these politicians are drinking from needs to inspected and tapped off. I am afraid for their health. :)