The butler did it
Knox County Chancellor Daryl Fansler handed down his ruling earlier today in the aftermath of Tuesday's "guilty-as-hell" verdict in Jack McElroy's lawsuit against Knox County Commission.
I think Fansler's remedies are fair, the opinion well-reasoned, and the outcome just about the best we could hope for under the circumstances.
He ordered that all twelve appointees placed in office on Black Wednesday must vacate office immediately, and that, for the purpose of appointing new officeholders, the Knox County Commission currently consists of the eleven non-term-limited members. That means a majority of six will be all that's required to name new appointees.
He also issued a permanent injunction against future violations; commissioners who violate the Sunshine Law in the future will be held in criminal contempt of court.
I especially loved that part.
The majority of his 16-page opinion discusses the kinds of meetings which fall under the purview of the Sunshine Law and carefully shoots down the "quorum defense," which attempts to interpret the law as requiring a secret meeting of at least a quorum of Commission before a violation is triggered. He also shot down the notion that decisions made in secret are somehow cured by holding discussion on the subject later, in public. In that vein, he quotes another author:
Simple knowledge of the final action or the vote is often only the unsatisfactory end of the story – the butler did it – without the deliberations and analysis leading up to the deed denouement.
There should be no more mention of the "quorum defense" in Knox County after this:
Tennessee's statutory prohibition on informal gatherings used to deliberate public business subjects all gatherings of two or more members of a public body to scrutiny and effectively makes Tennessee a non-quorum state.
He gives an example supporting his reasoning and the literal wording of the law, which applies to meetings of two or more members:
It does not take a stretch of the imagination to envision that private agreements between Commissioner Moore and another member of the faction would result in an automatic decision through the votes of the faction. If that particular faction constituted a quorum then there would be little difference between two members conferring and deciding and the entire faction conferring and deciding.
Carried further, if a faction did not have a quorum then a conference and agreement between two influential members of different factions could result in automatic decisions of the separate factions to effectuate a majority.
Here's the money quote:
The jury in this case found certain facts as set forth in its response to jury interrogatories from which this Court concludes that all twelve appointments made on January 31, 2007, were done in violation of Tennessee's Open Meetings Act. Accordingly, pursuant to Tenn. Code Ann. §8-44-105 those actions are hereby declared void and of no effect and pursuant to Tenn. Code Ann. §8-48-101(4) those offices are vacant, to be filled by the county legislative body in accordance with Article II, Section 2 of the Tennessee Constitution.
Some have speculated that the term-limited officials kicked out in January might have to come back to appoint new replacements. Fansler shoots down that theory too:
Where the election of persons who had succeeded to occupy an elected office was adjudged void a vacancy exists and the former incumbents are not considered de jur or de facto officers and are not entitled to resume office.
This quote is an implicit warning to County Commission that they'd better behave themselves when the new appointees are named:
Nothing precludes Commission from re-appointing the same individuals appointed on January 31, 2007. However, should Commission decide to do so, that decision must be based on a new and substantial reconsideration of the issues involved in which the public is afforded ample opportunity to know the facts and to be heard pertaining to the action taken. It was not the legislative intent to allow a body to ratify a prior violative act in a subsequent meeting by a perfunctory crystallization of its earlier action. Neese v. Paris Special School District, 813 S.W.2d 432 (Tenn. Ct. App. 1990).
He makes that warning explicit in the footnote at the end of that paragraph:
The term "re-do" has often been referred to as a possible remedy for an Open Meetings Act violation. Unless the Neese criteria are met, a "re-do" is insufficient and could result in an action for contempt.
Scoobie et al. need to read that footnote and take it seriously.