Can members of a Tennessee county commission form a Democratic or Republican caucus, and do those caucus meetings have to be open to the public?

Plain-English summary

The opinion answered two related questions: whether members of a county legislative body in Tennessee may form a partisan caucus, and whether the resulting caucus meetings are subject to the Tennessee Open Meetings Act (the state's "Sunshine Law"). The AG said yes on the first question and a qualified yes on the second.

Nothing in the general county-government statutes (Tenn. Code Ann. §§ 5-5-101 to -127) or the charter-county statutes (§§ 5-1-201 to -215) prohibits commissioners from organizing themselves into partisan groups. The county charter itself could limit caucuses, but absent such a local restriction, state law does not.

On openness, the Open Meetings Act applies to any "governing body," defined as the members of a public body with authority to make decisions or recommendations to a public body on policy or administration. The AG concluded that a partisan caucus of two or more county commissioners fits that definition. Whether any given caucus meeting must be open then turns on what the caucus is doing. If the caucus is transacting "party business" (selecting officers, planning campaigns, fundraising, internal political organization) that is not within the authority of the county commission, the Act does not apply. But if the caucus is deliberating toward a decision on public business within the commission's authority, the meeting must comply with the Act, including its notice and public-access requirements. The opinion follows the framework set out in Tenn. Att'y Gen. Op. 94-094 and applies the courts' definition of "deliberate" from Neese v. Paris Special School District and Johnston v. Metropolitan Government.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What counts as a "meeting" under the Open Meetings Act?
A: The statute defines a meeting as the convening of a governing body for which a quorum is required to make a decision or to deliberate toward a decision on any matter. Tennessee courts have defined "deliberate" as examining and consulting in order to form an opinion, or weighing arguments for and against a course of action.

Q: Does a caucus of two commissioners count?
A: Under the analysis in this opinion, yes. The governing-body definition kicks in once a public body has at least two members, so a two-member caucus meets the threshold. The relevant question is then whether the meeting's subject matter is public business of the commission.

Q: Can a caucus meet privately to discuss who they will support for a committee chair?
A: If the chair selection is something the full county legislative body actually votes on, that is public business. A pre-vote caucus on whom to support is the kind of deliberation the Open Meetings Act reaches, under the opinion's framework. Internal party leadership selection that has no connection to commission decisions is not.

Q: What about pure campaign or fundraising business?
A: That is party business outside the authority of the commission. Tenn. Att'y Gen. Op. 94-094 (cited in this opinion) explicitly carved that out. The Sunshine Law follows the substance of what is being discussed, not the label on the meeting.

Q: Did this opinion bind county commissions?
A: No. AG opinions are persuasive only. A court applying the Open Meetings Act would have to make the call based on what the caucus was actually doing.

Background and statutory framework

Article VII, § 1 of the Tennessee Constitution requires each county to elect a legislative body and authorizes the General Assembly to provide alternate forms of county government, including chartered counties. The statutory framework for county legislative bodies sits at Tenn. Code Ann. §§ 5-5-101 to -127, and the charter-county framework at §§ 5-1-201 to -215.

The Open Meetings Act, Tenn. Code Ann. §§ 8-44-101 et seq., embodies Tennessee's policy that the formation of public policy and decisions is public business. Its reach is intentionally broad: any "governing body" of a "public body" is covered, and "deliberation toward a decision" is enough to trigger it, even without a formal vote. The AG opinion does not break new ground; it consolidates the analysis already in 94-094 and the case-law gloss on "deliberate."

Citations and references

Constitutional provisions:

• Tenn. Const. art. VII, § 1 (county legislative bodies)

Statutes:

• Tenn. Code Ann. §§ 5-5-101 to -127 (county legislative bodies, general)
• Tenn. Code Ann. §§ 5-1-201 to -215 (charter form of county government)
• Tenn. Code Ann. § 8-44-102(a) (Open Meetings Act application)
• Tenn. Code Ann. § 8-44-102(b)(1) (governing body definition)
• Tenn. Code Ann. § 8-44-102(b)(2) (meeting definition)

Cases:

• Neese v. Paris Special Sch. Dist., 813 S.W.2d 432 (Tenn. Ct. App. 1990) (Tennessee Court of Appeals; defines "deliberate")
• Johnston v. Metro. Gov't of Nashville and Davidson Cnty., 320 S.W.3d 299 (Tenn. Ct. App. 2009) (Tennessee Court of Appeals)

Earlier AG opinion relied on:

• Tenn. Att'y Gen. Op. 94-094 (Aug. 30, 1994)

Subject

Opinion No. 14-96, Authority of County Legislative Body to Establish a Partisan Caucus, October 30, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-096.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 30, 2014
Opinion No. 14-96
Authority of County Legislative Body to Establish a Partisan Caucus

QUESTION

Can members of a county legislative body establish partisan caucuses for the purpose of outlining and meeting party objectives and goals?

OPINION

Yes, but meetings of a partisan caucus of a county legislative body may be subject to the Open Meetings Act.

ANALYSIS

Art. VII, § 1, of the Tennessee Constitution requires that the qualified voters of each county elect a legislative body. Such legislative body shall be composed of no more than 25 representatives from districts in the county, with no more than three representatives from a single district. Article VII, § 1, also authorizes the General Assembly to "provide alternate forms of county government including the right to charter."

The powers and duties of county legislative bodies are set forth in Tenn. Code Ann. §§ 5-5-101 to -127. Nothing in these statutes would limit the authority of a county legislative body to establish a partisan caucus. Provisions for the operation of a charter form of county government are set forth in Tenn. Code Ann. §§ 5-1-201 to -215. Nothing in these statutes would limit the authority of a county legislative body to establish a partisan caucus, except to the extent the county charter itself provides otherwise. Therefore, a county legislative body would not be prohibited under state law from establishing a partisan caucus.

As this Office opined in Tenn. Att'y Gen. Op. 94-094 (Aug. 30, 1994), however, meetings of such a partisan caucus may be subject to the Open Meetings Act, which applies to all meetings of any governing body. Tenn. Code Ann. § 8-44-102(a). The term "governing body" is defined as "[t]he members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." Id. § 8-44-102(b)(1). Assuming that a partisan caucus of a county legislative body has at least two members, it would meet this definition of a governing body.

A "meeting" is defined as the "convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter." Tenn. Code Ann. § 8-44-102(b)(2). The term "deliberate" has been defined by the courts as: "to examine and consult in order to form an opinion" and "to weigh arguments for and against a proposed course of action." Neese v. Paris Special Sch. Dist., 813 S.W.2d 432, 435 (Tenn. Ct. App. 1990) (quoting Black's Law Dictionary 384 (5th ed. 1979)). See Johnston v. Metro. Gov't of Nashville and Davidson Cnty., 320 S.W.3d 299, 311 (Tenn. Ct. App. 2009). To the extent that members of a partisan caucus engage in deliberations regarding public business during meetings of the caucus, such meetings would be subject to the Open Meetings Act. See Tenn. Att'y Gen. Op. 94-094, at 4 ("If the purpose of a meeting of a partisan caucus of a county legislative body is to transact party business that is not within the authority of the county legislative body, . . . such a meeting is not subject to the requirements of the Open Meetings Act. On the other hand, if the purpose of the meeting is to decide or deliberate toward a decision on public business that does fall within the authority of the county legislative body, then the Act applies.").

HERBERT H. SLATERY III
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable G. A. Hardaway
State Representative
22 Legislative Plaza
Nashville, Tennessee 37243