betty needs to work on her French verb conjugations.

Plus ça change, plus c’est la même chose. not "ca."

ce n'est pas difficile aussi d'utiliser un accent circonflexe et une cédille.

translation: also, it is not difficult to use a circumflex and a cedilla.

heh. (loosely translated...heh.)

francophiles the world over thank you. that is all.

merci.

After reading those four linked articles, I have to say, the press's coverage of this bullshit is less than stellar. First, the KNS, with its two nearly indistinguishable articles, recycling the same quotes to make some cryptic non-point. Then the Shopper: it's the same as it ever was. Well, golly, thanks!

The next election cycle, when these same dips are reelected or reselected, the local press can hand wring and wonder how in the world it could be.

Sandra's article sheds a little light on what the County thinks it is doing (always with the caveat that I have not attended any of the trial personally).

Essentially, the County is not mounting a defense or presenting a legal position at all. The attorneys have simply advised all the defendants to tell the truth, and are putting them on the stand one by one.

This explains why witness after witness called by the County have testified that, in effect, the law was broken. Normally, a party would call witnesses who would give sworn testimony that would convince the jury the party's theory of the case was correct. The County is not doing this.

It is not clear that this was the County's intention from the trial's outset. I say this because they tried to cross-examine Mark Harmon. They seem to have given up in the middle of the trial.

One thing is clear, the plaintiffs have not given up, and they continue to make their case that the law was violated.

The County is going to argue that the remedy in this case should only apply to specific Commissioners who violated the Sunshine Law, and to specific appointments as to which the Sunshine Law was violated. There was a time when I thought this argument might be successful. I no longer do.

The evidence of violation has been so pervasive, both on a number of specific appointments and as to the process itself, that I would now expect the entire results of the meeting to be nullified under the statute.

The County has pointed out, correctly, that one portion of the law mandates injunctions against "any person" in violation of the law. They have also stated, however, that this means the Court will not enjoin the Commission itself. This is not so clear for two reasons.

First, "person" is often defined legally to mean "entity", rather than "human being". Second, the provision the County relies on does not limit in any way a prior portion of the same section which gives the courts "jurisdiction to issue injunctions, impose penalties, and otherwise enforce the purposes of this part. . ."

In other words, the Court MUST enjoin persons who it determines are violators. The Court has jurisdiction to, and MAY, enforce the PURPOSES OF THE LAW by enjoining who or whatever the Court thinks ought to be enjoined.

Perhaps the County intends to appeal on the basis of the "quorum theory" of the Sunshine Law. That is not really a viable legal theory. It seems to me, however, that only a ruling that the "quorum theory" was correct could produce any result other than a totally humiliating defeat for the defendants at this point.

There will also likely be the argument that the various phone calls and talks did not amount to "deliberations". I don't know if the jury will make that distinction.

I still say there has to be some gray area, where Commissioners can discuss issues and not be violating the Open Meetings law. I believe it's been pointed out that there is an exception in the law for on-site examination. Would that also apply to 'discussions' to gather facts? Fact gathering vs. an agreement to vote a certain way. Would Justice Potter Stewart's famous quote fit here? Maybe that's the jury's job.

I believe Law Director Owings has indicated he is unsure about an appeal of the decision for one reason. I understand Chancellor Fansler has indicated he would not be inclined to stay the effect of the decision. A stay is not automatic if an appeal is filed. If there's no stay, the re-do would likely have to happen before the case could be argued in an appellate court.

Maybe the 'principle' or the issue of an injunction gets taken up on appeal, even though the remedy has already been put in place. It would be a financial decision at that point. If it were only money, the county could put up a bond or deposit the money in court pending an appellate decision. The required remedy here makes an appeal more problematic.

I believe I read also that the court could order an injunction issue and not order that the positions be re-appointed. The jury determines if there's a violation and the judge sets the remedy. But, that's from memory. I could be mistaken. If so, an appeal is more likely. Some clarity from the Supreme Court might be good, though it appears the legislature might be working on some changes to the law. Of course, it doesn't apply to them, so what do they care?

Speaking of perjury, I was wondering what the statutes and penalties were. Here you go:

TCA 39-16-702. Perjury.

(a) A person commits an offense who, with intent to deceive:

(1) Makes a false statement, under oath;

(2) Makes a statement, under oath, that confirms the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(3) Makes a false statement, not under oath, but on an official document required or authorized by law to be made under oath and stating on its face that a false statement is subject to the penalties of perjury.

(b) (1) Perjury is a Class A misdemeanor.

TCA 39-16-703. Aggravated perjury.

(a) A person commits an offense who, with intent to deceive:

(1) Commits perjury as defined in § 39-16-702;

(2) The false statement is made during or in connection with an official proceeding; and

(3) The false statement is material.

(b) It is no defense that the person mistakenly believed the statement to be immaterial.

(c) Aggravated perjury is a Class D felony.

TCA 39-16-705. Subornation of perjury.

(a) A person commits an offense who, with the intent to deceive, induces another to make a false statement constituting perjury or aggravated perjury.

(b) Subornation of perjury is a Class A misdemeanor. Subornation of aggravated perjury is a Class E felony.

TCA 40-35-111. Authorized terms of imprisonment and fines for felonies and misdemeanors.

(a) A sentence for a felony is a determinate sentence.

(b) The authorized terms of imprisonment and fines for felonies are:

(4) Class D felony, not less than two (2) years nor more than twelve (12) years. In addition, the jury may assess a fine not to exceed five thousand dollars ($5,000), unless otherwise provided by statute;

(5) Class E felony, not less than one (1) year nor more than six (6) years. In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000), unless otherwise provided by statute.

(d) A sentence for a misdemeanor is a determinate sentence.

(e) The authorized terms of imprisonment and fines for misdemeanors are:

(1) Class A misdemeanor, not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed two thousand five hundred dollars ($2,500), or both, unless otherwise provided by statute;

Efficiency? I have a flooding problem in my neighborhood. I call Leuthhold. Does that mean I can't call the other Leuthhold and Hammond to look it over at the same time? Do I have to notify the press that these folks are coming to my neighborhood?

Seems to me the Open Meetings law was designed when there was one represntative for one district (or a group of several elected to cover one geographic area). In the case of Knox County, we have two commissioners in each district, with three in the 5th. Even my 3 Commissioners can't talk to each other to agree on how to deal with a new development which is causing a flooding problem.

The Open Meetings law is one-size fits all law. It is an important law. But, it needs to take into account the realities of doing business. The Legislature and Congress apparently recognize the need to talk. No such laws apply to them.

I have a flooding problem in my neighborhood. I call Leuthhold. Does that mean I can't call the other Leuthhold and Hammond to look it over at the same time? Do I have to notify the press that these folks are coming to my neighborhood?

I believe the law specifically addresses this exact scenario, and allows for it. They just can't deliberate.

The issue of "deliberate" v. "discuss" is interesting, too. (I can't recall if the law specifically says "deliberate".) It seems that casual discussion about an issue can take place without deliberating towards a conclusion or a recommendation or a vote or some other action.

But as Mark points out, there's too much potential for violation of the letter of the law if you leave it up to the parties involved to say whether they were discussing or deliberating.

The statute specifically states that “meeting” does not include any on-site inspection of any project or program.

What both of you have posted have allowed us lay folks..to read & reread the legal ins & outs of the trial.Frankly this is the best guideline to whats happening that I have seen.

Thanks

Anyone who thinks the City Council does not regularly violate the Act isn't paying attention. First, recognize that in the City the Mayor is a member of the legislative body. Therefor, ANY meeting he has with a City Council member is, under the "two-or-more" theory, a violation of the Act. While I don't have any personal experience with the current council, the City has historically violated the Act regularly, including meetings at members homes with the former Mayor present.

THere is a very well recognized legal issue in the interpretation of the Act, and we should hope there will be an appeal of the inevitable verdict for the Plaintiff. I think it's inconceivable that any jury who has heard as much prejudicial and irrelevent testimony as in this case could possibly find for the Defendants. Plus, the Judge has prohibited the County from presenting this substantive question of law to the jury, and he will undoubtedly refuse to give any instruction on the "meeting" defense. This is a reference to the actual text of the Act, rather than what we all know it must mean. Specifically, the Act declares that "Meetings" of the "governing body" are to be open. The "2 or more" tells us what constitutes a governing body, not how many members can deliberate together without violating the law. A "Meeting" refers to the "convening" of the "governing body for which a quorum is required" in order to deliberate. The County, in an opinion shared by local government attorneys throughout the State, have opined that a plain reading interpretation of the Act would require the "convening" of a "meeting" of the governing body to constitute a violation. However, they also regularly counsel caution and advise the avoidance of substantive discussions between two or more of the Commissioners.

I guarentee the Law Director's office hasn't given up. They are giving every Commissioner their chance to appear and tell their story to the jury, and carefully preparing the legal issues for appeal. Clearly, this has escaped the Chancellor on a few occaisions (yes, I've attended several hearings). Keep in mind, the Law Director's office knows a whole bunch of things we don't. This is the classic case of bad facts potentially making very bad law, and the TPA has been waiting for a case like this for a very long time.

Plus, the Judge has prohibited the County from presenting this substantive question of law to the jury, and he will undoubtedly refuse to give any instruction on the "meeting" defense.

Sorry, but this is how the system works. Judges decide questions of law. Juries decide questions of fact. Juries DON'T decide questions of law.

Before the jury departs to deliberate, the judge will instruct the jury as to what the law is that affects this case, and, I expect, what issues of fact the jury is to decide. All parties can suggest jury instructions on the law to the judge, ask the judge to have the jury make findings on specific issues of fact, and make other suggestions regarding what the judge tells the jury. They will be arguing about these matters a lot between now and when the jury starts to deliberate.

This is a reference to the actual text of the Act, rather than what we all know it must mean. Specifically, the Act declares that "Meetings" of the "governing body" are to be open. The "2 or more" tells us what constitutes a governing body, not how many members can deliberate together without violating the law. A "Meeting" refers to the "convening" of the "governing body for which a quorum is required" in order to deliberate. The County, in an opinion shared by local government attorneys throughout the State, have opined that a plain reading interpretation of the Act would require the "convening" of a "meeting" of the governing body to constitute a violation. However, they also regularly counsel caution and advise the avoidance of substantive discussions between two or more of the Commissioners.

You are really just wrong on this. Tennessee Code Annotated Section 8-44-102(c) states, "Nothing in this section shall be construed as to require a chance meeting of two (2) or more members of a public body to be considered a public meeting. No such chance meetings, informal assemblages, or electronic communication shall be used to decide or deliberate public business in circumvention of the spirit or requirements of this part."

Unless you can explain how the higlighted language does NOT mean that 2 or more members of a public body are prohibited from meeting informally and delibertaing public business, then the "quorum theory" is just spin.

Which it is.

In my opinion, the legal issues in this case are:

What does "deliberate public business in circumvention of the spirit or requirements of this part" mean? This language is not defined in the statute.

What does Tennessee Code Annotated Section 8-44-105 mean, in the facts of this case? This section states "Any action taken at a meeting in violation of this part shall be void and of no effect; provided, that this nullification of actions taken at such meetings shall not apply to any commitment, otherwise legal, affecting the public debt of the entity concerned."

Does this mean, as the plaintiffs will argue, that, if any violation of the statute occurred at or concerning the meeting, every action taken at the meeting is null and void?

I expect the County to argue that this provision applies to violations under the provisions of the law requiring public notice of meetings and forbidding secret votes at meetings, which would affect the validity of the entire meeting. They will, I expect, argue that the section shouldn't apply to "deliberation" violations which might only affect one vote, and that such violations should only void the particular vote or votes involved.

A possible related issue might involve the meaning of the second sentence of Section 8-44-106(c). That section states: The court shall permanently enjoin any person adjudged by it in violation of this part from further violation of this part. Each separate occurrence of such meetings not held in accordance with this part constitutes a separate violation."

Does the second, higlighted sentence have relevance to the issue of what kind of violation voids the entire meeting? Frankly, it's not entirely certain to me what this sentence was intended to mean. Because of the placement of the sentence in a paragraph about injunctions, I sort of doubt that it would be interpreted to be relevant to the other issue, but an argument could be.

As I noted above, the County will try to argue that the judge should only issue injunctions against individual violators of the law, and not against County Commission itself. For the reasons stated above, I consider this to be an argument without legal merit, much like the "quorum theory" argument.

Just my opinion.