When Tennessee lawmakers on Tuesday pushed aside the regular House and Senate calendars and decided to focus only on essential business before taking an eight-week coronavirus recess, one of the key items left on this week's plate is a bill to temporarily amend the Open Meetings Act. The bill would allow electronic meetings via conference line or video conference during this pandemic crisis.
Such legislation could allow the continuance of government while still ensuring that local governing bodies — city councils, county commissions, hospital boards and the like — comply with Sunshine requirements. That should be true even if the panel itself meets by electronic conference or if it meets in normal chambers but bars or limits the public from physically attending because of the public health crisis.
This is good and necessary thing — provided the language of the bill eventually considered and passed later this week is properly worded to ensure important safeguards for transparency.
At least three members of our local legislative delegation say they see the importance of the measure and support it, as long as the final wording for those transparency safeguards "is rational," in Republican Sen. Todd Gardenhire's words. Chattanooga area Reps. Robin Smith, R-Hixson, and Yusuf Hakeem, D-Chattanooga, echoed that sentiment Tuesday.
In more ways than one, we are in new territory here. City councils, county commissions, hospital boards — even library boards and courts — are trying to figure out how to carry on essential government business in a public setting while also protecting the public as well as our public servants.
Public spaces tend to be small with closely placed seats — precisely the kind of situations health officials are telling all of us we should avoid during this Covid-19 outbreak.
But as Deborah Fisher, executive director of Tennessee Coalition for Open Government, noted in a recent newsletter: "What about the legal tradition of open courts and open meetings? The Tennessee Open Meetings Act that states in its preamble, 'The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.'"
The current and time-tested law makes it clear. "All meetings of any governing body are declared to be public meetings open to the public at all times."
Fisher says TCOG has offered potential language that the group believes will safeguard open government, will be limited for use only during this declared disaster and will give governing bodies a way to make decisions on essential business.
"We felt it was our responsibility to point the way in safeguarding transparency and accountability while at the same time recognizing that during this unprecedented disaster, we should not tie the hands of our governing bodies who need to make important decisions for the welfare of our counties and cities," she wrote. She added that she was told Monday that lawmakers want to add a repeal date in 2121 to emphasize that this is a "temporary" measure. She also said she was told the bill is being tweaked by the Tennessee Comptroller's office. She has not yet seen those changes.
But some of the points made by TCOG include:
* The governing body's chairman may make the initial decision to allow electronic participation, but the members must vote on the matter during its first available meeting.
* The board, council or commission must provide the public with electronic access by TV broadcast on public access channels, radio broadcast of audio, live streaming on the internet or a call-in telephone number — "provided that the governing body has the technology and capacity" to make its meeting publicly audible or visible.
* Any governing body "shall make reasonable efforts to acquire technology or capacity" to provide the public electronic meeting access. But if the board finds it does not have the technology or capacity, it "shall" make an audio or video record of the meeting and make the recording publicly available within 48 hours. Officials also must retain the recordings for at least five years.
* The board, council or commission may use this temporary provision of the Open Meetings Act only to conduct essential business and not to conduct business that can reasonably be delayed until the emergency ceases. All votes taken must be by roll call and properly recorded in meeting minutes.
* In its discretion, the governing body may take comments from the public or hear testimony during the meetings by telephone or any other electronic means.
* The meetings must be given adequate public notice that provides clear and specific instructions as to how the public may access the electronic meeting or recordings of it.
We strongly urge the Comptroller's office to keep these provisions and even strengthen them.
Communications technology already has transformed our society and looks to change it still more — as does the pandemic in which we find ourselves. Both the public and our elected officials must ensure that these tools and changes are used to preserve transparency in an emergency — not offer a way to smother it.
That may mean we must be vigilant to see that our elected officials act quickly to step into 2020 and obtain the tools necessary to keep all of the public in — not out of — the loop.