Grein v. Board of Educ. of School Dist. of Fremont, Dodge County

• Decision Date: 13 January 1984
• Docket Number: No. 82-576,82-576
• Citation: 343 N.W.2d 718,216 Neb. 158
• Court: Nebraska Supreme Court
• Parties: , 15 Ed. Law Rep. 1291 Thomas W. GREIN, Appellee, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF FREMONT, in the COUNTY OF DODGE, State of Nebraska, et al., Appellants.

Page 718

343 N.W.2d 718

216 Neb. 158, 15 Ed. Law Rep. 1291

Thomas W. GREIN, Appellee, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF FREMONT, in the COUNTY OF DODGE, State of Nebraska, et al., Appellants.

No. 82-576.

Supreme Court of Nebraska.

Jan. 13, 1984.

Syllabus by the Court

1. Public Meetings: Statutes. The Nebraska Public Meetings Laws are a statutory commitment to openness in government.

2. Public Meetings: Statutes. Public meetings laws are broadly interpreted and liberally construed to obtain the objective of openness in favor of the public. Provisions permitting closed sessions and exemption from openness of a meeting must be narrowly and strictly construed.

3. Public Meetings: Statutes: Words and Phrases. The public interest mentioned in Neb.Rev.Stat. § 84-1410 (Reissue 1981) is that shared by citizens in general and by the community at large concerning pecuniary or legal rights and liabilities.

4. Public Meetings: Statutes. In civil actions good faith or good intention on the part of the public body is irrelevant to the question of compliance with the provisions of the Public Meetings Laws authorizing a closed session.

5. Public Meetings: Statutes. The prohibition against decisions or formal action in a closed session also proscribes crystallization of secret decisions to a point just short of ceremonial acceptance, and rubberstamping or reenacting by a pro forma vote any decision reached during a closed session.

6. Injunction. An injunction is an extraordinary remedy available in the absence of an adequate remedy at law and where there is a real and imminent danger of irreparable injury. The threatened action must be based upon a real apprehension that the acts for which the injunction is sought are not only threatened but will in all probability be committed.

Sidner, Svoboda, Schilke, Wiseman, Thomsen & Holtorf, Fremont, for appellants.

John F. Kerrigan and William G. Line of Kerrigan, Line & Martin, Fremont, for appellee.

Neal E. Stenberg, Lincoln, for amicus curiae Neb. Ass'n of School Boards.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and GRANT, District Judge.

SHANAHAN, Justice.

Thomas W. Grein sued the Board of Education of the School District of Fremont to declare void a contract between the school district and a contractor submitting the second-lowest bid. Grein claimed the contract resulted from a closed session of the board in violation of the "Public Meetings Laws," Neb.Rev.Stat. §§ 84-1408 et seq. (Reissue 1981). The district court, sustaining Grein's motion for summary judgment, held that the closed session violated the Public Meetings Laws and that the resulting contract was void. The district court then enjoined the board from further violation of the Public Meetings Laws. We affirm in part and reverse in part with directions.

The questioned meeting of the board took place on January 4, 1982. At an unspecified date before the meeting, a representative of Risor & Barney, Inc. (contractor), the low bidder on the school boiler project, met with one of the engineers of Clark Enersen Partners, the architectural firm employed by the school district. (Clark Enersen, its architects, engineers, and representatives, irrespective of professional nomenclature, will hereinafter be called the "architect.") The contractor informed the architect about the contractor's error in computing its bid, which resulted in underbidding the project by an amount up to $3,000. It was the impression of the architect that the contractor was soliciting support for a request to increase the amount of the bid in view of the error.

As a result of the meeting with the contractor, the architect met with the board president and other representatives of the school district during the evening shortly before the regular meeting of the board on January 4, 1982. At this preliminary meeting the architect mentioned a possible problem in view of the low bid. The architect requested a closed session of the board to disclose reasons for recommending the second-lowest bid, and declined to elaborate on these reasons in an open session. The architect's reasons for requesting the closed session and for rejecting the contractor's low bid can be summarized as follows: (1) An absence of facts to substantiate the low bidder's inability to perform the contract; (2) A conclusion by the architect that there had been "suggestion and inference" that the low bidder was soliciting assistance from the architect to increase the amount of the bid; (3) An award of the contract to the contractor contrary to recommendations of the architect expressed in an open meeting would cause "difficulties in the [architect]-contractor relationship"; (4) Public disclosure of the error by the contractor would needlessly injure the reputation of the contractor, notwithstanding that the error in bidding may have been an honest mistake misinterpreted by the public; (5) On account of a deadline for federal funding, the architect did not delay bidding to investigate the experience and ability of the contractor; (6) The architect's opinion that the contractor would suffer injury to its reputation if there was public disclosure of the possible problem regarding the bidding; (7) It was unusual for an architectural firm to recommend a bid from other than the low bidder; (8) "[A] potential claim would exist by the low bidder" if the low bidder were not awarded the contract; and (9) There was "increased possibility of success" in the pursuit of a claim by the low bidder if "all facts on which [the architect] based [its] recommendation were not made known to the board ... [in] a closed session."

After the preliminary meeting between representatives of the school district and the architect, the regular meeting of the board of education was convened. In the course of the regular meeting the architect addressed the board and stated: "I believe we will address the boiler bids with a recommendation which is the first order of our business. We would bring a recommendation to this Board to accept the bid of [the second-lowest bidder]." In response, the president of the school board asked: "Is there a reason why you go with the second low bidder?" The architect answered: "Yes sir, there is, and in order to protect our clients [sic] concern we would request a closed meeting to address these claims." At that point the school attorney expressed: "I would suggest, Mr. Chairman, that this would be appropriate both for the purpose of protecting the persons involved and in the interest of the school district, generally, that this be discussed privately." The school board then affirmatively voted to withdraw to the "closed session for these reasons." The exact contents of the closed session are not shown, but the architect's reasons for rejecting the low bid, as previously summarized, were disclosed to the board in the closed session. After the closed session and upon reconvening the open session, the board, without further discussion or deliberations about bids on the boiler project, immediately voted to accept the bid of the second-lowest bidder.

There is no indication that any representative of the low-bidding contractor attended the meeting on January 4, 1982. When asked for whose protection the meeting was closed, the president of the board of education responded: "Probably the School Board. I don't know."

Grein sued to nullify the action of the board in awarding the boiler contract to the second-lowest bidder. See § 84-1414. Grein claimed that the closed session of the board was not authorized by § 84-1410. The answer filed by the board alleges that a closed session was necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual.

The district court held that the closed session of the board and the contract to the second-lowest bidder were void on account of violation of the "Open Meetings Laws." The district court also enjoined the board from further violations of the Public Meetings Laws and ruled that the plaintiff was entitled to recover an attorney fee, but the record does not disclose any order awarding a specific attorney fee.

The board claims: (1) The closed session did not violate the Nebraska Public Meetings Laws, §§ 84-1408 to 84-1414; (2) The vote of the board, namely, accepting the second-lowest bid during the open meeting immediately after the closed session, was permissible and not contrary to the Public Meetings Laws; and (3) The injunction prohibiting the board's further violation of the Public Meetings Laws was not proper.

A declaration of the intent behind the public meetings laws is found in § 84-1408: "It is hereby declared to be the policy of this state that the formation of public policy is public business and may not be conducted in secret.

"Every meeting of a public body shall be open to the public in order that citizens may exercise their democratic privilege of attending and speaking at meetings of public bodies ...."

A closed session of a public body is authorized by § 84-1410: "(1) Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting.... (2) The vote to hold a closed session shall be taken in open session. The vote of each member on the question of holding a closed session, the reason for the closed session, and the time when the closed session commenced and concluded shall be recorded in the minutes...." (Emphasis supplied.)

The Nebraska Public Meetings Laws are a statutory commitment to openness in government. As a result of open meetings, there will be development and maintenance of confidence, as well as participation, in our form of government as a democracy....