Closed Session On Shelton Likely Violated Open Meeting Law

Cookeville City Council members likely violated Tennessee’s open meetings law with a closed session on Ricky Shelton’s Cookeville Regional hiring.

At its January 19 meeting, council went into special session to discuss “a potential agenda item.” At the beginning of that work session, City Manager James Mills said council member Laurin Wheaton had requested the item be added to the agenda. The topic of the session was not disclosed at the time. However, that item was a discussion of Shelton’s hiring as Cookeville Regional Chief Strategy Officer.

Deborah Fisher serves as Executive Director of the Tennessee Coalition for Open Government. Fisher said the state allows for attorney-privilege sessions in very specific cases.

“The exception is very limited, they can only go in to a closed session if there is pending or potential litigation,” Fisher said. “So in other words, they can’t go into a session just to discuss something they think is sensitive. There has to be a threat of litigation that they need to discuss in private with their attorney and get legal advice on that threat of litigation from their attorney. That’s what’s protected in attorney client privilege.”

The discussion of Shelton’s hiring did not include pending or potential litigation.

“I mean, the public needs to know what the governing body is doing under the open meetings and that no decisions, no deliberation can occur in secret,” Fisher said. “So the exception is when the lawyers giving advice to the governing body. So it is incumbent upon, sometimes it’s the press, sometimes it’s the public to call foul if a governing body is trying to go into a closed session and it’s not really covered to go into a closed session.”

Fisher added that any governing body cannot invite its attorney into a meeting covering non-litigation issues to get the special privilege. Fisher said some entities try this approach to keep issues out of public view they do not want to discuss.

“It’s only privileged if the client is receiving legal counsel on pending or potential litigation,” Fisher said. “That’s what the courts have said in Tennessee. Other questions that they might have for their attorney, such as ‘is there anything in our charter that prevents this?’ Just basic questions like that should be done in open session. In fact, there’s no reason not to do those in open session.”

At Thursday night’s meeting, City Council Member Charles Womack made the motion to add the discussion of Shelton’s position to that night’s agenda. The issue had not been discussed at the Monday work session where other agenda items were vetted by the council members and city staff. Mark Miller seconded the motion. Womack told News Talk 94.1 Friday that he had been considering the issue for several weeks.

Fisher said any time more than one elected official deliberates a topic, it must be in an open forum. As for the definition of deliberate, Fisher said the courts want the consideration of options to be public.

“The courts in Tennessee have said that it means to examine and consult in order to form an opinion and to weigh arguments for and against a proposed course of action,” Fisher said. “That’s the definition the courts have used when they have looked at, sometimes, emails that have been traded with each other or other types of conversation has taken place.”