Fontaine v. Board of County Com'rs of Park County

• Decision Date: 11 April 2000
• Docket Number: No. 99-68.,99-68.
• Citation: 4 P.3d 890
• Parties: Marie FONTAINE, in her official capacity as the County Clerk for Park County, State of Wyoming, Appellant (Petitioner), v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, State of Wyoming, Appellee (Respondent).
• Court: Wyoming Supreme Court

4 P.3d 890

Marie FONTAINE, in her official capacity as the County Clerk for Park County, State of Wyoming, Appellant (Petitioner), v. BOARD OF COUNTY COMMISSIONERS OF PARK COUNTY, State of Wyoming, Appellee (Respondent).

No. 99-68.

Supreme Court of Wyoming.

April 11, 2000.

Representing Appellant: Joseph E. Darrah and S. Joseph Darrah of Darrah & Darrah, Powell, Wyoming.

Representing Appellee: Bradley D. Bonner, Park County Civil Attorney, Powell, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

THOMAS, Justice.

The primary issue in this case is found in the claim by Marie Fontaine (Fontaine), the County Clerk for Park County, that Wyo. Stat. Ann. § 18-3-402(a)(i)(A)—(D) (Lexis 1999) requires her to attend executive sessions of the Board of County Commissioners (the Board) to make minutes and preserve a record of such meetings. A collateral issue is raised concerning the adequacy of public notice by the Board of administrative meetings of the Board with the county staff. The district court ruled that the statute did not require the attendance of Fontaine at executive sessions of the Board, and it also ruled that no detailed agenda need be published of the administrative meetings with the county staff. Although we agree with the decision of the district court that no detailed agenda is required for administrative meetings of the Board with its staff, we are satisfied that the statute, properly construed, requires the attendance of Fontaine at the executive sessions to make minutes and preserve a record of those meetings. The Declaratory Judgment entered in the district court is affirmed in part and reversed in part. The case is remanded to the district court for further proceedings in accordance with this opinion.

This statement of the issues is found in the Brief of Appellant, which was filed on behalf of Fontaine:

a. Whether the county clerk is required to attend all meetings of the county commissioners pursuant to W.S. § 18-3-402(a)(i)(A)—(D) which states that the county clerk shall attend all sessions of the board of county commissioners, record all proceedings of the board, and make regular entries of all the board's resolutions, orders and decisions when the board refuses the county clerk's attendance at executive sessions.

b. Whether the Park County Commissioners violate W.S. § 16-4-401 et seq. when the board has failed to provide adequate notice of meetings pertaining to scheduled discussions, deliberations and consultations related to matters of public business.

This Statement of the Issues is found in the Brief of Appellee, filed for the Board:

1. Whether the District Court properly granted summary judgment, ruling that the Park County Board of County Commissioners may exclude any person, including the County Clerk, from its executive sessions.

2. Whether the District Court properly granted summary judgment, ruling that the Park County Board of County Commissioners is not required to publish detailed notice of meeting agendas where only "day to day" administrative activity is being conducted.

The Board is the governing body of Park County, and is an agency within the definition set forth in the Wyoming Public Meetings Act, Wyo. Stat. Ann. §§ 16-4-401 through 16-4-407 (Lexis 1999).¹ The Board holds three types of meetings: regular meetings, staff meetings, and executive sessions. Regular meetings take place each Tuesday, and are open to the public. A Commissioners' Agenda is available to the public and the media in advance of each regular meeting. Staff meetings are generally held on Tuesdays before the regular meetings; they are open to the public, but the matters to be addressed are not included on the Commissioners' Agenda or any other document provided to the public. Executive sessions are open only to Board members and their invitees.

Fontaine began serving as the elected County Clerk of Park County in 1979, and was the County Clerk at the time she commenced this action. Earlier in her tenure as County Clerk, Fontaine had attended all types of meetings the Board held for the purpose of taking the minutes. At some point, however, the Board decided that minutes of its executive sessions were not required, and Fontaine was informed that she no longer would be required or even permitted to attend executive sessions. Following that advice, no minutes of either staff meetings or executive sessions are taken or kept by the Board.

Fontaine requested access to the executive sessions, but her request was denied. She filed this complaint on February 24, 1998, seeking a declaratory judgment that, by statute, she is required to, and therefore must be allowed to, attend and record all meetings and proceedings of the Board. She further sought a declaration that all meetings involving public matters must be open to the public and must be publicized in advance, including sufficiently descriptive agendas of staff meetings and executive sessions. The Board moved for, and received, a summary judgment in its favor. Fontaine filed a timely appeal to this Court.

When this Court reviews a summary judgment denying a petition for a declaratory judgment, we invoke our usual standard for review of summary judgments. Board of County Com'rs v. Geringer, 941 P.2d 742, 745 (Wyo.1997); Kunard v. Enron Oil & Gas Co., 869 P.2d 132, 134 (Wyo.1994). The summary judgment can be sustained only when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56; Kirby v. NMC/Continue Care, 993 P.2d 951, 952 (Wyo.1999); Selby v. Conquistador Apartments, Ltd., 990 P.2d 491, 494 (Wyo. 1999); Roberts v. Klinkosh, 986 P.2d 153, 155 (Wyo.1999); Century Ready-Mix Co. v. Campbell County School Dist., 816 P.2d 795, 798 (Wyo.1991). The court must consider the record in the light most favorable to the party opposing the motion, and give to that party the benefit of all favorable inferences that fairly may be drawn from the record. Snyder v. Lovercheck, 992 P.2d 1079, 1083 (Wyo.1999) (quoting 40 North Corp. v. Morrell, 964 P.2d 423, 426 (Wyo.1998)

); Selby, 990 P.2d at 494; Bluejacket v. Carney, 550 P.2d 494, 497 (Wyo.1976). In this instance, there is no contention that any genuine issue of material fact exists, and our concern is strictly with the application of the law. Questions of application of the law, including identification of the correct rule, are considered de novo. Kirby, 993 P.2d at 952. If the summary judgment can be affirmed under any proper legal theory presented in the record, we will do so. In re HC, 983 P.2d 1205, 1209 (Wyo.1999); Century Ready-Mix Co.,

816 P.2d at 799 (citing Reeves v. Boatman, 769 P.2d 917, 918 (Wyo.1989)).

On the first issue, Fontaine argues that Wyo. Stat. Ann. § 18-3-402(a)(i) establishes her position that the county clerk must attend and record all meetings of the Board, including executive sessions. The statute provides, in the part pertinent to this case:

(a) The county clerk shall:

(i) Act as clerk to the board of county commissioners and as such shall:

(A) Attend all sessions of the board of county commissioners either in person or by deputy;

(B) Keep the seal, records and papers of the board of county commissioners;

(C) Record in a book provided for that purpose all proceedings of the board;

(D) Make regular entries of all the board's resolutions, orders and decisions in all questions coming before it;

(E) Sign all orders issued by the board for the payment of money and preserve and file all accounts acted upon by the board with a memorandum of its action thereon;

(F) Perform other duties as required by the board of county commissioners.

The plain language of that statute, with nothing else, would clearly require the clerk's attendance at all Board proceedings. Fontaine further supports her position with the following language from one of the provisions in the Wyoming Public Meetings Act, Wyo. Stat. Ann. § 16-4-403(c), providing for minutes:

(c) Minutes of a meeting:

(i) Are required to be recorded but not published from meetings when no action is taken by the governing body;

(ii) Are not required to be recorded or published for day-to-day administrative activities of an agency.

The Board relies on the "[e]xecutive session" portion of the Wyoming Public Meetings Act, Wyo. Stat. Ann. § 16-4-405, which authorizes agencies to hold executive sessions not open to the public, when specific confidential or sensitive matters are to be considered. That statute provides:

(a) A governing body of an agency may hold executive sessions not open to the public:

(i) With the attorney general, county attorney, district attorney, city attorney, sheriff, chief of police or their respective deputies, or other officers of the law, on matters posing a threat to the security of public or private property, or a threat to the public's right of access;

(ii) To consider the appointment, employment, right to practice or dismissal of a public officer, professional person or employee, or to hear complaints or charges brought against an employee professional person or officer, unless the employee, professional person or officer requests a public hearing. The governing body may exclude from any public or private hearing during the examination of a witness, any or all other witnesses in the matter being investigated. Following the hearing or executive session, the governing body may deliberate on its decision in executive sessions;

(iii) On matters concerning litigation to which the governing body is a party or proposed litigation to which the governing body may be a party;

(iv) On matters of national security;

(v) When the agency is a licensing agency while preparing, administering or grading examinations;

(vi) When considering and acting upon the determination of the term, parole or release of an individual from a correctional or penal institution;

(vii) To consider the selection of a site or the purchase of real estate when the

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