Thursday, July 21, 2016

City of Germantown Eclipses Tennessee Sunshine Law

In September 2014, Patrick Lawton and four aldermen had a private "meeting" online to discuss and vote on a streetscape project for which the City had a grant. Whether or not one cares about the particular project, it is vital that the rule of law be followed in all issues of governance. Even when there is no evidence that anyone had anything but the best intentions, any potential violation of the sunshine law, even in seemingly minor matters, calls into question the way business is done in general in the City. The details of the matter are below, but first let's discuss the law. 

All fifty states have what are known as “sunshine laws” that apply to the practices of certain government entities. Sunshine laws are in place to ensure that governance is conducted in an open and ethical manner. They allow the public to track activities or to request access to records about issues of governance. They are designed to stop corruption within the affected organizations and increase public trust through transparency.  

Read more about Sunshine Laws here:  

The Tennessee Sunshine Law may be found here: 

The Tennessee Sunshine Law is judged to be “dim” in this article from the Columbia (TN) Daily Herald):  

It is clear that under the Tennessee Sunshine Law, votes on matters by public councils such as the Germantown Board of Mayor and Aldermen must be noticed and discussed and votes recorded at public meetings. Also, business cannot be discussed by Boards or Councils at any “meeting” outside of one that is public and has been noticed.The definition of meeting is two or more people who are members of that governing body talking about the issue outside of a public meeting. This is extended to “electronic” meetings.  


An Open Records request reveals that the Tennessee Sunshine Law was potentially violated in the case of a “vote” requested to be taken on an issue in an email exchange between Lawton and four of the five aldermen on September 30, 2014.  

The City had been given a grant of approximately $90,000 for a landscaped median strip on Germantown Road directly to the north of Neshoba. City Engineer Tim Gwaltney first requested a response on this grant, which had been left out of the budget, on August 15. There was no response from Lawton, and Lawton was reminded again by Gwaltney on September 23. Lawton then responded that he would bring it up in “one on one” meetings within the week.  (“One on one” meetings are often held between the City Administrator and each aldermen separately, as a way not to trigger the requirement that meetings be held publicly, as a meeting with more aldermen than one would constitute a meeting under the definitions of the Sunshine Law.)   

The next email on this subject is from a member of the Germantown staff, Marie Burgess on September 30, saying that TDOT was calling her for an answer on this and she needed to know what to tell them about the status of the grant.   

Lawton then emailed four of the five aldermen in one group, BMA, asking them to weigh in. It ends with “Please give your thoughts. Majority wins.”

The aldermen then responded, and the records indicate (through email trails) that they were reading each other’s responses.  Two of the aldermen were not using their government issued emails, but private email accounts doing public business.  Forrest Owens and Rocky Janda were strongly for the project, Palazollo thought he might not be for it because it didn’t include landscaping (the plan actually did include landscaping and he was so told in another email), and Greg Marcom thought it would be unsafe and also might interfere with egress/ingress into Thornwood. Janda reminded Marcom that Owens said it would increase safety and he had the appropriate experience to know.  

Marcom appears to drop his opposition to the project, and Lawton informs Marie to tell the TDOT to go ahead with the project. 

After that point, the emails stop, and we the citizens hear nothing about the issue.  All we know is that when we ride down Germantown Road, there is no landscaped median strip.  Note that the only way that citizens were even able to find out about the grant at all was through Open Records requests.   
There is no record of the median issue or a vote taken on this issue in any of the records of the Board of Mayor and Aldermen meetings in October thru December of 2014 that are on the Germantown, TN official website. Even if there had been a separate vote taken at a subsequent meeting, that does not affect whether the sunshine law was violated in the email exchange. 

Even more interesting is that Marcom had recused himself from votes on the Thornwood development due to his work with Reaves Firm, an engineering and land planning firm.  

Yet none of the participants questioned whether or not he should have been able to participate in this email "vote" due to the proximity of the project to Thornwood. Marcom was the only alderman who responded in the emails that was initially definitively against accepting the grant money. 

My commentary:

It would have been nice if Lawton had taken care of this matter in a public meeting when it was first brought to his attention. Instead it was let go until the very last minute and he felt he had to solicit votes by email. Had he gotten permission to hold this "emergency meeting" as required?  

More important, what happened to the project? The go ahead was given for it but we don't have the median strip.  Did we decide the median was dangerous?  Did the state pull the plug because of our slow response?  Did something else occur?  I doubt that there was anything nefarious going on, because all of the discussion had to do with what was best for Germantown.  But because this was not discussed and voted on at a public meeting, we may never know what happened to the median strip.  

Others may feel differently, but I like the idea of a median strip there.

Here are the files from the records requests, and below that I typed the emails so they could be more easily read by readers of this blog.    

*     *     *     *    *

Here are the relevant documents: (or if you prefer, the typed conversation) below: 

On Aug. 15 at 2:41 PM, Gwaltney, Tim wrote: 
Hello Patrick, 
Need to discuss the Germantown Road Streetscape project.  To refresh your memory, the City received a grant (80/20) several years ago to design/construct a median in G’town Road between North Bixby and S. Bixby Roads.  Various issues have arisen to impede progress.  Early on it was staff turnover.  Next it was a new requirement by TDOT that the City had to go through the Excess Land Committee for an OK to construct the median.  This process took them about a year.  Next was discussion among a few of the Aldermen (one in particular) who questioned the safety of a median in that vicinity due to the extreme high volumes of traffic and close proximity to The Villages.  There is actually some merit to that concern.  Furthering the safety concern is projected traffic from the proposed Thornwood development, Baptist Rehab about to open, and a proposed Campbell Clinic expansion.
Anyway, the state is asking for a project update from the City.  The project is not in the City’s FY CIP.  We are in danger of losing the ~$90,000 grant; city’s share~$18,000.  Is this a project that the City still wants to pursue? 
Tim Gwaltney, P.E.  
September 23, 2014 at 10:45 AM. Gwaltney, Tim wrote

Hello Patrick, 
This subject was going to be discussed at the BMA retreat that did not happen.  TDOT is still asking about this project………whether we want to do it or not.  They are requesting a conference about it this Thursday or Friday.    

On Tue., Sept. 23, 2014 at 10:45 AM, Patrick Lawton wrote: Tim, I will put it on my list to discuss with the BMA this week.  I have one on one meetings set up with them to discuss several of the retreat items. 

On Sep, 30, 2014, at 10:43 AM, “Burgess Marie” wrote (to Gwaltney, Tim, Cameron Ross,  

Butch Eder  
Good Morning All! 
I’m following up on this as I just missed a call from TDOT, and I know that they are wanting to discuss the status of the project. They had requested a conference call last week, but I put them off since Patrick was going to discuss with the Aldermen.  Please let me know the outcome as soon as possible.  I have been unable to give them any direction for nearly two months at this point (which is not how I prefer to communicate). 
Thank you. 

On Tuesday, September 30, 2014 10:58 AM, Patrick Lawton 
Board, is there still interest in the development of the median along Germantown Road near the thornwood development.  This is the project with the TDOT that has been in a state of flux for several years.  The funding is a 80/20 split The state wants to know our position or they are ready to pull the plug.  Please give me your thoughts.  Majority wins.  

On Tuesday, September 30, 2015 at 11:14 AM, Rocky Janda responded to “Patrick Lawton” and BMA  
Yes, anything that will set us apart or look like you’re coming into our ‘Main street”….!!!    

On Tuesday, September 30, 2014 11:31 AM Greg Marcom responded to Patrick Lawton, with a copy to BMA,  

I do not believe we need to move forward with this.  I think it impacts emergency response headed north bound if there is a problem that backs up traffic.  Often the case.  
On Sept. 30, 2014 at 11:13 AM, Mike Palazzolo wrote to Patrick Lawton: 

from his Yahoo email, not a government issued email account, and it is only in the system because it is at the bottom of the next email from Patrick Lawton)
I’m not a big fan since we are not allowed to landscape the median.  I can go either way, put me with the majority.  

On Tuesday, Septemter 30, 2014 at 11:39am, FO wrote to Greg Marcum, with copies to BMA (group), and Patrick Lawton: Yes I believe we should move forward with this as soon as possible.  As long as it doesn't affect the ingress/egress of Thornwood, I think it would look very nice and has been proven to increase traffic safety.

On Tuesday, September 30. 2014 at 11:52 AM, Patrick Lawton responded to Mike Palazzolo (unclear if this is to his Yahoo account or government account, although it is most likely his Yahoo account) 
Two strongly in favor, one not with you on the fence. I believe there will be some landscaping.   

On Tuesday, September 30, 2014 at 12:36 PM from Greg Marcom to Rocky Janda, with a copy to Patrick Lawton and BMA 
I would like to see how this impacts Thornwood.  Could someone please send me a sketch of the location. 
On September 30, 2014 at 11:01 AM, Patrick Lawton wrote to Marie Burgess:  Marie, I hope to hear from the board today or tomorrow, will let you know.  

On September 30, 2014 at 11:14 AM, Marie Burgess responded to Patrick Lawton: 
Ok. Thank you. 

On Tuesday, Sept 30, 2014 at 11:39 am Patrick Lawton wrote to Marie Burgess:  Marie, in addition to the seal design what does the rest of the landscaping look like?  

On Tuesday, September 30 at 12:11 AM Marie Burgess responded to Patrick Lawton:  

The current design and construction plans do not contain a seal.  My recollection is that the application has provisions for it to be included at some point, but it was not part of the submittal (which has been in the works……….since 2008, I believe???..........which is why TDOT is wanting answers).  I would have to contact Andy to understand why he omitted it from the plan set at this time.  It’s possible that to included it, would have exceeded the available funding. 
Regardless, I have included a PDF of the current landscape design which TDOT has reviewed and approved.  Basically, the way I see it, we have $ available to us at the moment for streetscape improvements (which I think is positive for the City).  I can appreciate concerns by some regarding increased traffic generated by existing/proposed developments nearby. However, perhaps an engineer can give us a professional review on the matter so we can move past speculation and make a determination or modifications to the design.  It would e unfortunate to turn down financial assistance offered to enhance the City’s aesthetics.  
I hope this helps. 

From Rocky Janda  September 30, 3:42 PM
to Greg Marcom, copy to BMA, Patrick Lawton 
You know FO was a city planner for Germantown, I think for over 10 years or so and if he says it increases traffic safety I think it probably does.   

October 1, 1:25  From Greg Marcom to Patrick Lawton 

Patrick and Cameron, Based on the review that Marie sent, I have no opposition to the median center other than my original concerns about it creating an impediment to emergency response in the north part of the city. 

I LOVE Germantown, TN 

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Protecting Germantown Employees Comes at a High Cost for Taxpayers  

Thank You Jane Roberts, Vacation Buybacks and Other "Perks"

City of Germantown Eclipses Sunshine Law 

Commerical Appeal Editorial Praises Records Requests

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