Common Council of City of Peru v. Peru Daily Tribune, Inc.

• Decision Date: 18 October 1982
• Docket Number: No. 2-482A122,2-482A122
• Citation: 440 N.E.2d 726
• Parties: 8 Media L. Rep. 2479 COMMON COUNCIL OF the CITY OF PERU, Indiana, Jim Baber, Herbert Anderson, Robert Temple, Carroll Bankston, Troy Austin, Daniel Doyle, John Alfrey, Appellant (Defendant Below), v. PERU DAILY TRIBUNE, INC., and Perry T. Fulkerson, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 726

440 N.E.2d 726

8 Media L. Rep. 2479

COMMON COUNCIL OF the CITY OF PERU, Indiana, Jim Baber Herbert Anderson, Robert Temple, Carroll Bankston Troy Austin, Daniel Doyle, John Alfrey Appellant (Defendant Below), v. PERU DAILY TRIBUNE, INC., and Perry T. Fulkerson, Appellees (Plaintiffs Below).

No. 2-482A122.

Court of Appeals of Indiana Second District.

Oct. 18, 1982.

Patrick J. Roberts, J. Richard Sims, Cole, Haig, Roberts & Sims, Peru, for appellant.

Richard W. Cardwell, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellees.

SHIELDS, Judge.

The Common Council of the City of Peru (Council) appeals the trial court's grant of a permanent injunction against the Council, enjoining it from holding executive sessions to interview applicants for a vacancy on the City of Peru Utilities Service Board in threatened violation of the Indiana Open Door Law, I.C. 5-14-1.5-1 to 5-14-1.5-7 (Burns Code Ed., Supp. 1982). The injunction was sought by the Peru Daily Tribune, Inc. and Perry T. Faulkerson (Tribune). The issues on appeal are:

1) whether members of a municipal board are employees or officers;

2) whether Tribune must show "great injury" to obtain injunctive relief pursuant to I.C. 5-14-1.5-7(a); and

3) whether the Tribune sustained its burden of proof.

We affirm.

DECISION

At the outset, we state our standard of review of a trial court's discretionary decision to grant or deny an injunction. We consider only the evidence which supports the trial court's decision along with all reasonable inferences and reverse only where the evidence leads to a conclusion directly opposite to the conclusion of the trial court. We neither reweigh the evidence nor judge the witnesses' credibility. State ex rel. Department of Natural Resources v. Mason, (1981) Ind.App., 416 N.E.2d 1312. Furthermore, our judgment is not substituted for the trial court's even though the circumstances might justify a different result. State ex rel. Stream Pollution Control Board v. Town of Wolcott, (1982) Ind.App., 433 N.E.2d 62, 65.

I

The undisputed evidence reveals Council planned ¹ to hold executive sessions ² to interview applicants for appointment to the city utility service board. ³ Tribune claims the plan constituted a threatened violation of I.C. 5-14-1.5-1 et seq. Council argues the proposed sessions are excepted by I.C. 5-14-1.5-6(a)(iv) which states, in part:

"Executive sessions may be held only in the following instances: ... interviews with prospective employees;" ⁴

Thus, we decide the issue of whether applicants for a municipal board position are "prospective employees" under I.C. 5-14-1.5-6(a)(iv). ⁵

In 1977, the legislature passed the Indiana Open Door Law which expanded the public meeting provision of the Hughes Anti-Secrecy Act, I.C. 5-14-1-4 (this provision repealed 1977) (Burns Code Ed., 1974). The intent behind the Indiana Open Door Law is clearly stated:

"In enacting this chapter [5-14-1.5-1--5-14-1.5-7], the general assembly finds and declares that this state and its political subdivisions exist only to aid in the conduct of the business of the citizens of this state. It is the intent of this chapter that the deliberations and actions of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the citizens may be fully informed. The purposes of this chapter are hereby declared to be remedial, and its provisions are to be liberally construed with the view of carrying out its policy."

I.C. 5-14-1.5-1. Thus, we are instructed to construe the statutory provisions of the Open Door Law consistently with its declared policy that the business of public agencies should be openly exposed to public scrutiny.

In construing this statutory provision, it is our duty to give effect to the intention of the legislature. Barr v. Sun Exploration Co., (1982) Ind.App., 436 N.E.2d 821. Where, as here, the words are clear and unambiguous, the words will be given their plain, ordinary and unbridled meaning. Marion County Department of Public Welfare v. Methodist Hospital of Indiana, Inc., (1982) Ind.App., 436 N.E.2d 123, 126. It can be presumed the legislature intended its language to be applied in a logical manner consistent with the underlying policies and goals of the statute in question. Frost v. Review Board of Indiana Employment Security Division, (1982) Ind.App., 432 N.E.2d 459, 461.

Further, it is important to recognize what the statute does not say as well as what it does say. When certain items or words are specified or enumerated in the statute, then, by implication, other items or words not so specified are excluded. In re Wardship of Turrin, (1982) Ind.App., 436 N.E.2d 130, 132. Finally, exceptions to a statute and its operation should be strictly construed by placing the burden of proving the exception upon the party claiming it. Merimee v. Brumfield, (1979) Ind.App., 397 N.E.2d 315; News & Observer Publishing Co. v. Interim Board of Education, (1976) 29 N.C.App. 37, 223 S.E.2d 580, 586; 73 Am.Jur.2d Statutes Sec. 313 (1974).

Other states, in examining their respective "Open Door" or "Sunshine" laws, follow these same mandates, particularly the principle of strict construction of statutory exceptions. Miglionico v. Birmingham News Co., (1979) Ala., 378 So.2d 677; Town of Palm Beach v. Gradison, (1974) Fla., 296 So.2d 473; Canney v. Board of Public Instruction, (1973) Fla., 278 So.2d 260; Times Publishing Co. v. Williams, (1969) Fla.App., 222 So.2d 470; Daily Gazette Co. v. Town of Cobleskill, (1981) 111 Misc.2d 303, 444 N.Y.S.2d 44; News & Observer Publishing Co., 223 S.E.2d at 580.

Applying these principles, we hold municipal board applicants are not "prospective employees" but rather prospective officers.

An employee is commonly defined as:

"A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed. Riverbend Country Club v. Patterson, Tex.Civ.App., 399 S.W.2d 382, 383. One who works for an employer; a person working for salary or wages.

"Generally, when person for whom services are performed has right to control and direct individual who performs services not only as to result to be accomplished by work but also as to details and means by which result is accomplished, individual subject to direction is an 'employee'.

" 'Servant' is synonymous with 'employee'. Gibson v. Gillette Motor Transport, Tex.Civ.App., 138 S.W.2d 293, 294; Tennessee Valley Appliances v. Rowden, 24 Tenn.App. 487, 146 S.W.2d 845, 858. However, 'employee' must be distinguished from 'independent contractor,' 'officer,' 'vice-principal,' 'agent,' etc."

Black's Law Dictionary 471 (rev. 5th ed. 1979).

Public officer is commonly defined as:

"An officer of a public corporation; that is, one holding office under the government of a municipality, state, or nation. One occupying a public office created by law. One of necessary characteristics of 'public officer' is that he performs public function for public benefit and in so doing he be vested with exercise of some sovereign power of state."

Id. at 978.

Case law supports these common definitions. Our supreme court in Hyde v. Board of Commissioners of Wells Co., (1935) 209 Ind. 245, 198 N.E. 333, observed the following discussion "fairly summarizes the characteristic distinction between an officer and an employee":

"It was said by Judge Cooley in People v. Langdon (1879), 40 Mich. 673, 682:

'The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general.'

"In a note appearing in 17 Am. & Eng.Ann.Cas. 452, in which hundreds of cases from many jurisdictions are digested, it is said by the annotator:

'It may be stated as a general rule, fairly deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast upon the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; ...'

"It was said by the Supreme Court of Massachusetts in Attorney General v. Tillinghast (1909), 203 Mass. 539, 543, 89 N.E. 1058, 17 Am. & Eng.Ann.Cas. 449:

'The holder of an office must have intrusted to him some portion of the sovereign authority of the state. His duties must not be merely clerical, or those only of an agent or servant, but must be performed in the execution or administration of the law, in the exercise of power and authority bestowed by the law. (Authorities.) A mere employee has no such duties or responsibilities. A public officer is one "whose duties are in their nature public, that is, involving in their performance the exercise of some portion of the sovereign power whether great or small, and in whose proper performance all citizens irrespective of party are interested, either as members of the entire body politic or of some duly established subdivision of it." ... The assistant auditor is to be under the direction of the auditor and to assist him in his duties, and, in the absence of the auditor or during a vacancy of that office, temporarily to discharge those duties. These are public functions, involving the exercise of some part of the sovereign power of the commonwealth. The fact that the authority of one officer is subordinate to that of another does not prevent him from being an officer. A subordinate or inferior officer is none the less an officer....

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