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Tennessee Coalition for Open Government attorney Richard L. Hollow argues in Greene County Chancery Court Thursday that deliberations at public meetings should be required to be audible in order to comply with Tennessee's Open Meetings Act.

Third Judicial District Chancellor Douglas T. Jenkins made a ruling Thursday regarding Tennessee's Open Meetings Act that could have far-reaching legal significance.

During a hearing in a Greene County Chancery Court lawsuit which seeks to stop the Industrial Development Board of Greeneville and Greene County and US Nitrogen's plans to use the Nolichucky River for the company's water supply (see related article, page A-1), Jenkins ruled that deliberations at public meetings covered by the Open Meetings Act must be audible in order to comply with the law.

He had earlier granted a Motion For Leave to Intervene in the case from the advocacy group Tennessee Coalition for Open Government (TCOG) and its attorney, Richard L. Hollow, of Knoxville.

"I do think it sends a message that citizens have a right to hear a proceeding," TCOG Executive Director Deborah Fisher said after Thursday's hearing.

Hollow, a widely known specialist in First Amendment law, said after the hearing that Jenkins' ruling is not binding on other courts, but does set an important legal precedent in the state if other courts wrestle with the same question.

"About the best thing that could happen is a ruling that says there is a requirement of audibility," Hollow said.

Aside from citizens having access to public meeting is that "you also have a right to hear what's going on," Hollow said.

FACTS AND ARGUMENTS

Members of Save the Nolichucky, who are plaintiffs in the lawsuit, have said they were unable to hear deliberations at the July 18, 2014, IDB meeting, held in the G. Thomas Love Boardroom of the Greeneville Light and Power System headquarters.

Microphones were in the room but were not used for the meeting.

The defendants in the lawsuit -- the IDB and US Nitrogen -- assert that the meeting did not violate the Open Meetings Act or any other law.

Hollow argued that the court should "have a liberal interpretation" of the Open Meetings Act in this case and require audibility to be a condition of complying with the law.

Hollow pointed out during his arguments that TCOG takes no position on whether the Open Meetings Act was actually violated at the meeting and isn't taking sides in the lawsuit in general.

He said if Jenkins would have ruled against TCOG in the motion, it would have created "an exception to the Open Meetings Act."

The issue is simple and defined in the state Constitution, he told Jenkins in his presentation to the court Thursday.

"We say that we believe the citizens of Tennessee have a right to attend a public meeting and they have a right to hear what goes on at a public meeting," Hollow said.

IDB members were seated around a rectangular table, some with their backs to the audience, during the July 2014 meeting, and there was no amplification of what they said, Hollow stated.

"We ask the court to apply the law," he said, "and hope there is a requirement on audibility."

Jenkins asked Hollow if he was aware of any other courts in Tennessee ever taking up the issue of ample sound at meetings of entities such as the IDB attended by the public.

Hollow replied that the issue has never been discussed in Tennessee.

Courts in New York and New Mexico have ruled in favor of the same position TCOG takes, Hollow said.

"These people have a constitutional right (or) at least a statutorily-defined right to see and hear what's going on," he said. "We say the issue of audibility is a substantial interpretive part of this act."

Denying the right to hear "may be a potentially evasive device," Hollow said.

"This court is in the position to strike a blow for public transparency because no court (in Tennessee) has ever ruled on the issue," Hollow said. "There ought to be a requirement for compliance on this act."

The IDB and US Nitrogen had argued in pleadings filed before the hearing that the Open Meetings Act does not stipulate that audience members be required to hear all of a meeting.

The board and the company had stated that they had complied with all of the explicit requirements of the Act in connection with the meeting.

In addition, they said that noise from the audience itself may have made it harder for the board's deliberations to be heard.

US Nitrogen attorney Michael K. Stagg, of Nashville, argued Thursday that the court should take "what I would call the reasonableness approach," meaning that not every citizen who attends any public meeting can say he must hear every word of deliberation or the meeting should be voided as being in violation of the Open Meetings Act.

"What it gets down to is statutory interpretation," Stagg said.

"Just because some people don't get some words, it's not grounds to void a meeting," he said. "We're all for open government."

Chancellor Jenkins' ruling could have a significant impact on the case when it goes to trial.

As a result of Jenkins' other decisions in the case Thursday, the only claim now remaining in the plaintiffs' lawsuit is that the IDB meeting in July 2014 was a violation of the Open Meetings Act.

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