Wayne Gray v. Dickson County, Tennessee

05/27/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 2, 2022 Session

WAYNE GRAY ET AL. V. DICKSON COUNTY, TENNESSEE ET AL.

Appeal from the Chancery Court for Dickson County

No. 2021-CV-13 Laurence M. McMillan, Jr., Chancellor

No. M2021-00545-COA-R3-CV

AND

WAYNE GRAY ET AL. V. DICKSON COUNTY, TENNESSEE ET AL.

Appeal from the Chancery Court for Dickson County

No. 2021-CV-56 Laurence M. McMillan, Jr., Chancellor

No. M2021-00546-COA-R3-CV

This consolidated appeal involves citizen challenges, via the common law writ of certiorari,

to the procedure by which the Dickson County Planning Commission and Dickson County

Commission approved a settlement agreement negotiated with Titan Partners, L.L.C.

Specifically, the Petitioners allege that they were entitled to notice that the settlement

agreement was going to be discussed at the regularly scheduled meetings of the Planning

Commission and County Commission. They further allege that executive sessions were

improperly utilized to discuss the settlement agreement in violation of the Open Meetings

Act. The trial court found no violation of the Open Meetings Act and affirmed the actions

of the Planning and County Commissions. Upon our review of the record, we agree that

there was no violation of the Open Meetings Act and affirm the trial court in all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Rodger Dale Waynick, Jr., Dickson, Tennessee, for the appellants, Wayne Gray, Angela

Lunn, John Reuter, Charles W. Spann, Turnbull Preservation Group, L.L.C., and Miranda

Williams.

Timothy Valton Potter and Andrew Eldridge Mills, Dickson, Tennessee, for the

appellees, Dickson County, Tennessee, Dickson County Planning and Zoning Office, and

Dickson County Commission.

Thomas V. White and George Arthur Dean, Nashville, Tennessee, for the appellee, Titan

Partners, L.L.C.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This is the final opinion in a trilogy regarding claims brought by Dickson County

citizens related to Titan Partners, L.L.C.’s (“Titan Partners”) application for the

construction and operation of a fuel terminal (“Project DV”). As was explained in detail

in, Turnbull Preservation Group L.L.C. v. Dickson County, Tennessee, No. M2021-00542-

COA-R3-CV (released simultaneously with this opinion), the Dickson County Planning

Commission approved Titan Partners’ site plan at an unpublicized Planning Commission

meeting on April 23, 2020. On June 19, 2020, Dickson County citizens filed a petition for

writ of certiorari requesting the chancery court declare the Planning Commission’s actions

at the April 23 meeting a violation of the Open Meetings Act and therefore void.

Thereafter, at the July 23, 2020 Planning Commission meeting, the Planning Commission

overturned its prior approval of Project DV. In Turnbull, we held that the Planning

Commission’s action in overturning its prior approval rendered the citizens’ Open Meeting

Act claims moot.

After the July 23, 2020 denial of the site plan, Titan Partners filed lawsuits against

Dickson County. Thereafter, Dickson County Commissioners and counsel for Titan

Partners engaged in non-public, “executive sessions”1 regarding the litigation brought by

Titan Partners. On January 14, 2021, the Planning Commission held its regularly scheduled

public meeting which was livestreamed on Dickson County’s YouTube channel; public

notice was given for the meeting, including an agenda, but the published agenda did not

include any mention of the settlement agreement or Project DV. At the beginning of the

January 14 meeting, a motion was made, and properly seconded, to amend the agenda to

include a discussion of a proposed settlement agreement with Titan Partners.

1

The parties refer to the non-public meetings between the county commissioners and counsel for Titan

Partners as “executive sessions” and/or “Rule 408 settlement discussions.”

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The settlement agreement itself does not appear in the record on appeal; however, a

seven-page document entitled Summary of Settlement Terms (hereinafter “summary of

settlement”) was distributed at the January 14 meeting and is included in the appellate

record. At the January 14 meeting, the county attorney discussed and summarized the

terms of the settlement agreement paragraph by paragraph. The summary of settlement

outlines twenty-one different obligations of Titan Partners under the settlement agreement.

For example, section 1.6 states that within sixty days of Titan Partners commencing storage

of petroleum at the fuel terminal, Titan Partners will “donate $1,000,000.00 . . . to the

Community Foundation of Middle Tennessee . . . to be spent for a County Agricultural

Center or any other community purpose.” Section 1.9 requires Titan Partners to pay

$50,000 annually for rural fire protection once the fuel terminal is utilized for the

distribution of petroleum. Section 1.15 details the ground water and surface water

monitoring procedures Titan Partners will implement. Section 3 outlines the County’s

obligations, and section 3.1 states:

Upon the approval by the Planning Commission of these Settlement Terms,

the Site Plan for the Terminal submitted for the July 23, 2020 Planning

Commission meeting, being the same Site Plan approved at the April 23,

2020 meeting, will be deemed approved by the Planning Commission.

Within five (5) days of the complete execution of the Settlement Agreement

an Agreed Final Order will be filed resolving the Site Plan lawsuit[s].

After the county attorney finished his presentation, the floor was open for questions

from the commissioners. One commissioner asked whether the settlement agreement was

transferable, and it was explained that the settlement agreement would “run with the land”

if Titan Partners sold the property to another operator. Two commissioners discussed their

reasoning for voting for the settlement agreement, including the following statement from

Commissioner Robert Comer:

My last statements are about the settlement agreement itself and why I’m

inclined to support it. One, for me it’s – there’ll be a lot of talk about the

funding but for me it’s about the protective measures. One of the issues that

I had all through this project was that we were not conditioning this project

in a way that guaranteed the protection of our community. I think the

measures with the inclusion of the Water Authority’s measures and Titan’s

agreement to all of them provides those protective measures that I was

seeking all along, and I think does a great job in protecting this community.

...

Essentially, the settlement agreement got what most of us, and I think I speak

for some of my colleagues, what most of us who were opposed to this project

wanted in the first place. We never wanted to just say go away; we wanted

to make sure that this project was done in the most safe way, the most

responsible way and the most transparent way. . . .

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The Planning Commission voted unanimously to approve the settlement agreement and

recommended that the Dickson County Commission (“County Commission”) also approve

it.

Five days later, at the January 19, 2021 regularly scheduled County Commission

meeting, a motion was made and seconded to add the settlement agreement to the agenda.

Again, the county attorney discussed the terms of the settlement agreement and

summarized the agreement paragraph by paragraph. Several commissioners asked

questions2 and engaged in debate regarding the settlement agreement. Ultimately, the

County Commission approved the settlement agreement with nine commissioners voting

for the settlement agreement, one commissioner voting against it, and one commissioner

abstaining.

Several Dickson County residents (“Petitioners”) filed petitions for writ of certiorari

arguing that both the January 14 Planning Commission meeting and the January 19 County

Commission meeting violated the Open Meetings Act. The trial court held that the

Planning Commission “did not act arbitrarily or capriciously by unanimously approving

the Settlement Agreement” and there was “material evidence in the record to support the

decision of the Planning Commission.” With respect to the decision of the County

Commission, the court further held:

[U]nder the totality of the circumstances, this court is of the opinion that the

public notice given for the regularly scheduled meeting of the Dickson

County Commission on January 19, 2021, at which the Settlement

Agreement with Titan Partners was discussed and approved constituted

“adequate public notice” under the Tennessee Open Meetings Act. As noted

above, Tennessee law does not require an agenda for notice to the public to

comply with the Act.

Petitioners appeal from the trial court’s approval of both the Planning Commission and

County Commission’s decisions and raise the following issues that we have consolidated

and summarized as follows: (1) whether the Planning Commission violated the Open

Meetings Act by failing to include the settlement agreement as a topic on the published

agenda; (2) whether the Planning Commission’s executive sessions violated the Open

Meetings Act; (3) whether the County Commission’s public notice was adequate under the

Open Meetings Act.

2

For example, one commissioner asked whether the County was agreeing to combine any property for

the widening of the site; one commissioner asked a question about section 5.2 of the agreement relating to

the Board of Zoning Appeals case; and another commissioner questioned whether it was appropriate, given

the other pending litigation, to settle the Titan Partners’ suits.

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STANDARD OF REVIEW

When reviewing a certiorari proceeding, appellate courts apply a limited standard

of review. State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 574 (Tenn. Ct.

App. 2005). Specifically, judicial review of a common-law writ of certiorari consists of

determining whether “that decision maker exceeded its jurisdiction, followed an unlawful

procedure, acted illegally, arbitrarily, or fraudulently, or acted without material evidence

to support its decision.” Id. (citing Petition of Gant, 937 S.W.2d 842, 844-45 (Tenn.

1996)); see also Tenn. Code Ann. § 27-8-101. “At the risk of oversimplification, one may

say that it is not the correctness of the decision that is subject to judicial review, but the

manner in which the decision is reached.” Powell v. Parole Eligibility Rev. Bd., 879

S.W.2d 871, 873 (Tenn. Ct. App. 1994).

ANALYSIS

The issues raised by the Petitioners require us to examine Tennessee’s Open

Meetings Act (sometimes referred to as “Tennessee’s Sunshine Law”). The policy and

purpose of the Open Meetings Act is set forth in Tenn. Code Ann. § 8-44-101(a): “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.” See also

Metro. Air Rsch. Testing Auth., Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 842

S.W.2d 611, 616 (Tenn. Ct. App. 1992) (“Public knowledge of the manner in which

governmental decisions are made is an essential part of the democratic process.”). To

effectuate this purpose, the Open Meetings Act requires that meetings be open to the public

and that “adequate public notice” be given of the regular and special meetings of

government bodies, among other things. See Tenn. Code Ann. §§ 8-44-102, -103.

“Adequate public notice” is not defined in the statute, but it has been interpreted to mean

sufficient notice “under the circumstances, or such notice based on the totality of the

circumstances as would fairly inform the public.” Memphis Publ’g Co. v. City of Memphis,

513 S.W.2d 511, 513 (Tenn. 1974). The notice required by the Open Meetings Act is

adequate when it “gives interested citizens a reasonable opportunity to exercise their right

to be present at a governing body’s meeting.” State ex rel. Akin v. Town of Kingston

Springs, No. 01-A-01-9209-CH00360, 1993 WL 339305, at *5 (Tenn. Ct. App. Sept. 8,

1993) (emphasis added); see also Fisher v. Rutherford Cty. Reg’l Plan. Comm’n, No.

M2012-01397-COA-R3CV, 2013 WL 2382300, at *6 (Tenn. Ct. App. May 29, 2013)

(noting that the Tennessee Open Meetings Act “requires notice of the meeting itself and

does not speak to notice of the content of the meeting” for regularly scheduled meetings).

Moreover, a published agenda is not a required component of adequate notice for regular

meetings under the Open Meetings Act. See Fisher, 2013 WL 2382300, at *6.3

3

When interpreting the phrase “adequate public notice,” the Fisher Court pointed out that:

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If a meeting is conducted in violation of the Open Meetings Act, actions taken at

that meeting “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.” Tenn. Code Ann. § 8-44-105. Important to our resolution

of this case is a narrow exception to the Open Meetings Act which arises when public

bodies discuss pending litigation with their attorneys, in which the public body is a named

party. This Court has held that “discussions between a public body and its attorney

concerning pending litigation are not subject to the Open Meetings Act.” Smith Cty. Educ.

Ass’n v. Anderson, 676 S.W.2d 328, 335 (Tenn. 1984). In addition, our courts have

recognized that a violation of the Open Meetings Act does not completely foreclose the

government body from ever acting on the measure that was the subject of the violation. See

Neese v. Paris Special Sch. Dist., 813 S.W.2d 432, 436 (Tenn. Ct. App. 1990) (citations

omitted). Even if a violation of the Open Meetings Act occurred, the governing body’s

action may stand when there was a “new and substantial reconsideration of the issues

involved . . . .” Id.

Petitioners rely heavily on this Court’s opinion in Neese to support their arguments

that both the regularly scheduled Planning Commission and County Commission meetings

held in January 2021 were held in violation of the Open Meetings Act; therefore, a thorough

review of the Neese opinion is warranted here. In Neese, the Board of Education of the

Paris Special School District (“the board”) was considering the educational concept of

“clustering” to correct certain racial and socio-economic imbalances that existed in the

school system. Id. at 433. In connection with their decision-making on this topic, four of

the seven school board members, as well as the school superintendent, met for two days at

an out-of-state “retreat” to discuss the advantages and disadvantages of clustering. Id. At

the board’s regular meeting in January, the board alleged an announcement was made

regarding the retreat; however, the minutes of that meeting did not reflect such an

announcement. Id. at 435. Nevertheless, a newspaper article summarizing the January

board meeting mentions that the board agreed on a date for an out-of-state retreat, stating,

“two major items the board will look at during the retreat will be any word received from

the attorney general on a proposed merger of the county and city school systems, and the

recent drop in . . . enrollment.” Id. A local radio station also reported that the board voted

to hold an out-of-state retreat. Id. Less than a week after the retreat, the board held its

regularly scheduled February meeting. Id. at 433. At that meeting, the board directed the

school superintendent to “develop a formal plan for clustering” and to present the plan at

[T]he legislature could have defined ‘adequate public notice,’ but did not and has not since

the statute was enacted in 1974. Had the legislature intended to require notice of the agenda

for every meeting, whether regular or special, it could easily have said so at any time . . . .

Other states have. See, e.g., Ariz. Rev. Stat. Ann. § 38.431.02(G); Colo. Rev. Stat. Ann. §

24-6-402(c).

Fisher, 2013 WL 2382300, at *6 n.2.

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the following regular meeting. Id. The school superintendent presented the plan for

clustering at the March meeting, at which community members participated in a three-hour

question and answer session, and the Board formally approved the plan at the same

meeting. Id. at 433, 437. On May 1, a lawsuit was filed alleging that the out-of-state retreat

violated the Open Meetings Act. Id. at 433-34.

In analyzing the issues surrounding the out-of-state retreat, the Neese court first

determined that the retreat, which involved a quorum of the Board, constituted a “meeting”

under the Open Meetings Act and was subject to the requirements of the Act. Id. at 435.

Next, the Court considered whether, under the “totality of the circumstances[,]” notice of

the out-of-state meeting was adequate. Id. at 435-36. The Court emphasized that the

“intent” of the superintendent was to “discuss the issue of clustering privately with Board

members.” Id. at 435 (emphasis added). Indeed, when the superintendent was questioned

regarding why clustering was not “discussed openly at Board meetings [he] responded,

‘The problem that led to clustering has racial overtones. It was not—I did not feel it was

in the best interest to be exposing racial imbalances to the public.’” Id. The Neese Court

determined that under the totality of the circumstances “the public had a right to be

informed that the issue of clustering would be extensively discussed” at the two-day out-

of-state retreat, especially because the retreat was convened specifically for the purpose of

discussing clustering. Id. at 435-36. The court characterized the notice provided as

“misleading” and determined that under this particular set of facts, notice was insufficient.

Id. at 436. Ultimately, however, the Neese court upheld the action of the board, reasoning:

We do not believe that the legislative intent of this statute was forever to bar

a governing body from properly ratifying its decision made in a prior

violative manner. However, neither was it the legislative intent to allow such

a body to ratify a decision in a subsequent meeting by a perfunctory

crystallization of its earlier action. We hold that the purpose of the act is

satisfied if the ultimate decision is made in accordance with the Public

Meetings Act, and if it is 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 with reference to the matters at issue.

Id. (citing Alaska Cmty. Coll. Fed’n of Tchrs., Local No. 2404 v. Univ. of Alaska, 677 P.2d

886, 891 (Alaska 1984)).

Relying upon Neese, Petitioners urge us to find that 1) the Planning Commission’s

agenda for the January 14 meeting should have included the settlement agreement, and

because it did not, the meeting was held in violation of the Open Meetings Act; and 2) the

County Commission should have provided notice that the settlement agreement was going

to be discussed at the regularly scheduled meeting because the fuel terminal was of

“pervasive importance” to the public. We decline to make such holdings. The Open

Meetings Act “requires notice of the meeting itself and does not speak to notice of the

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content of the meeting,” and our jurisprudence does not interpret the Open Meetings Act

to require an agenda prior to a regular meeting. Fisher, 2013 WL 2382300, at *6. In Neese,

the meeting at issue was a “special meeting” convened out-of-state for the purpose of

privately discussing a sensitive topic. See Tenn. Code Ann. § 8-44-103(a), (b)

(distinguishing between “regular” and “special” meetings). Moreover, there were no

members of the public present at the out-of-state retreat in Neese.

In the case before us, the settlement agreement was discussed at a regularly

scheduled meeting for which public notice was given and a livestream of the meeting was

provided on-line. Indeed, one of the Petitioners was present at both the Planning

Commission and County Commission meetings. While the published agenda for the

Planning Commission meeting did not indicate that the settlement agreement was going to

be covered, we do not read the Open Meetings Act as requiring the Planning Commission

to disclose the content of its regularly scheduled meeting. The Planning Commission

controls its agenda, and the Planning Commission properly amended its agenda at the

beginning of the meeting. The settlement agreement was summarized paragraph by

paragraph and discussed openly, along with the other business of the meeting. Under these

circumstances, we find that the notice of the regularly scheduled January Planning

Commission meeting was adequate under the Open Meetings Act. Likewise, we do not

read the Open Meetings Act as requiring the County Commission to disclose the content

of its regularly scheduled meeting.4

4

Although Petitioners do not raise it as a separate issue on appeal, they also assert that Neese stands for

the proposition that the public should have been given the opportunity to “be heard” at the Planning

Commission and County Commission meetings in January. We emphasize that the Tennessee Open

Meetings Act does not guarantee citizens the right to participate or be heard in meetings. Souder v. Health

Partners, Inc., 997 S.W.2d 140, 150 (Tenn. Ct. App. 1998) (citing Whittemore, 835 S.W.2d at 18) (“While

the [Open Meetings] Act requires all meetings of entities subject to the Act be open to the public, it does

not guarantee all citizens the right to participate in the meetings.”); see also State ex rel. Akin, 1993 WL

339305, at *5. When discussing a governing body’s ability to cure a prior violation of the Open Meetings

Act (known as the “Cure Doctrine”), the Neese Court somewhat overstated the requirements of the Act

when it suggested that a prior violation of the Open Meetings Act can be overcome when “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 with reference to the matters at issue.” Neese, 813 S.W.2d at 436 (emphasis

added). While the public did participate and offer opinions on clustering during a question and answer

session at the board meeting in the Neese case, and that was clear evidence that the Board did not simply

rubberstamp its prior approval of the clustering plan, the three-hour-long public discussion was not

necessarily required by the Open Meetings Act. In addition, the Alaska Supreme Court case Neese relied

upon, which interprets an entirely different version of an open meetings act, does not stand for the

proposition that the public must be heard during “a true de novo consideration of [a prior] defective action.”

Alaska Cmty. Coll., 677 P.2d at 891. Instead, the Alaska Court stated:

Ideally the plaintiff is entitled to be placed in the position he would have been in had the

violation never occurred. That position is not one where the adverse decision is never

made. Instead it is one where the decision, adverse or not, is taken in conformity with the

sunshine laws.

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Next, Petitioners contend that the Commissions “abused . . . the executive session

exception to circumvent the Open Meetings Act.” In Smith County Education Association

v. Anderson, our Supreme Court explored the impact of the attorney-client exception to the

Open Meetings Act and squarely determined that “discussions between a public body and

its attorney concerning pending litigation are not subject to the Open Meetings Act.” Smith

Cty., 676 S.W.2d at 335. The Court emphasized, however, that the exception is “narrow”:

[c]lients may provide counsel with facts and information regarding the

lawsuit and counsel may advise them about the legal ramifications of those

facts . . . [h]owever, once any discussion, whatsoever, begins among the

members of the public body regarding what action to take based upon advice

from counsel, whether it be settlement or otherwise, such discussion shall be

open to the public . . . .

Id. at 334. We note that Petitioners have proffered nothing more than speculation as to the

content of the executive sessions during which lawyers met with commissioners to discuss

Titan Partners’ lawsuits. There is no evidence, affidavits, deposition testimony, or

otherwise of misuse of these executive sessions or any indication that impermissible

deliberations occurred. Therefore, in light of the on-the-record discussion of the settlement

agreement, detailed earlier in this opinion, we discern no evidence that improper

deliberations regarding the settlement took place during an executive session. In sum, we

find that the executive sessions conducted by commissioners and their attorneys fell within

the attorney-client exception established in the Smith County case, and no violation of the

Open Meetings Act occurred.

CONCLUSION

For the foregoing reasons, we hold that neither the Planning Commission nor the

County Commission violated the Open Meetings Act, and the Petitioners arguments to the

contrary fail. The judgment of the trial court is affirmed. Costs of this appeal are assessed

against the appellants for which execution may issue if necessary.

_/s/ Andy D. Bennett_______________

ANDY D. BENNETT, JUDGE

Id. at 891 n.10. Regardless of the technical holding in Neese, the Cure Doctrine is not implicated under

these facts, as we have held that the Open Meetings Act was not violated in January 2021, and therefore

there was no violation to cure. To the extent there was a prior violation of the Act in April 2020, that

violation was rendered moot by the Planning Commission’s vote to deny the project in July 2020. See

Turnbull, No. M2021-00542-COA-R3-CV.

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