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The Open Appointments Act: Who sits on OUR appointed bodies?

In what can only best be described as an ongoing irritant to many citizens, the invisibility of the composition of the various city and county governments’ appointed decision-making/regulatory bodies has long grated the public’s collective nerve. Appointments are announced at meetings but the appointees are rarely, if ever, present or brought before the public’s view. Such actions do little to bestow or increase public trust in the appointment system and the results thereof.

In an effort to better understand this process, a review of the state law addressing minority and non-minority representation in the composition of such appointed bodies has resulted in some insightful information. The TCA has addressed this issue of promoting and actually encouraging the participation of minorities on statutorily appointed regulatory government sub-entities. This is a commendable effort that goes a long way in encouraging the involvement of all elements of our citizenry in the operation and functioning of our government. Sadly, it is not a perfect tool but still one that could have profound impact if actively applied.

The Tennessee State Legislature passed legislation known as the “Open Appointments Act,” which details the intent and the means whereby state and local governments’ various statutorily appointed decision-making or regulatory bodies are to be composed of an accurate reflection of the population of the state or the municipality in which it operates. TCA 10-7-601 thru 10-7-611 addresses the issue of minority representation on appointed bodies in Tennessee. The legislature declares in the law its intent that minorities be represented on appointed bodies of state and local governments. Conscious efforts are to be made to include minorities on these governmental bodies. Records of appointments, solicitation of members and the results thereof, the compensation and funding authority of each such body is all to be documented and an annual year end report is due to the Secretary of State, the Governor, the Speaker of the Senate and the Speaker of the House. The report is to be made available for public inspection and review and copies, at cost, are available to the public. With the internet making government more accessible to the public, viewing these reports need not place a monetary strain on the public’s ability to review its government.

Well, just how compliant are our city and county governments with the Open Appointments Act of Tennessee? Where are the records of applicant solicitations, the annual reports to state officials and the public’s notice of these reports? This information is public information and is due to the people’s review, as mandated by state law.

The Open Appointments Act, excerpt:
10-7-611. Proportionate representation of minority and nonminority groups on appointed bodies.

(a) It is the intent of the general assembly to recognize the importance of balance in the appointment of minority and non-minority persons to membership on statutorily created decision-making and regulatory boards, commissions, councils, and committees, and to promote that balance through the provisions of this section. Furthermore, the general assembly recognizes that statutorily created decision-making and regulatory boards, commissions, councils, and committees play a vital role in shaping public policy for Tennessee, and the selection of well-qualified candidates is the paramount obligation of the appointing authority.

(b) In appointing members to any statutorily created decision-making or regulatory board, commission, council, or committee of the state, the appointing authority should make a conscientious effort to select, from among the most qualified persons, those persons whose appointment would ensure that the membership of the board, commission, council, or committee accurately reflects the proportion that each group of minority persons represents in the population of the state as a whole, or, in the case of a local board, commission, council, or committee, in the population of the area represented by the board, commission, council, or committee, as determined pursuant to the most recent federal decennial census, unless the law regulating such appointment requires otherwise, or persons of the under-represented minority group cannot be recruited. If the size of the board, commission, council, or committee precludes an accurate representation of all minority groups, appointments should be made which conform to the requirements of this section insofar as possible. If there are multiple appointing authorities for the board, commission, council, or committee, they shall consult with each other to assure compliance with this section.

(c) Each appointing authority described in subsection (c) shall submit a report to the secretary of state annually by December 1, which discloses the number of appointments made during the preceding year from each minority group and the number of non-minority appointments made, expressed both in numerical terms and as a percentage of the total membership of the board, commission, council, or committee. A copy of the report shall be submitted to the governor, the speaker of the house of representatives, and the speaker of the senate. In addition, each appointing authority shall designate a person responsible for retaining all applications for appointment who shall ensure that information describing each applicant’s race, ethnicity, gender, and qualifications is available for public inspection during reasonable hours. Nothing in this section requires disclosure of an applicant’s identity or of any other information made confidential by law.

(d) This section applies to appointments and reappointments made after July 1, 1997. It does not prohibit a member of a decision-making or regulatory board, commission, council, or committee from completing a term being served as such member when this section takes effect. A person appointed to a decision-making or regulatory board, commission, council, or committee before July 1, 1997, may not be removed from office solely for the purpose of meeting the requirements of this section.

[Acts 1997, ch. 328, § 1.

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