Hinds County Bd. of Sup'rs v. Common Cause of Mississippi
| Decision Date | 28 June 1989 |
| Docket Number | No. 58177,58177 |
| Citation | 551 So.2d 107 |
| Parties | HINDS COUNTY BOARD OF SUPERVISORS, Roger Stewart, George Smith, Hershel Wilbourn, Walter Dennis, Bennie Thompson and Frank Bryan v. COMMON CAUSE OF MISSISSIPPI, Roberta Madden, Rims Barber, Barbara Powell, John Guest and Mississippi Publishers' Corporation. |
| Court | Mississippi Supreme Court |
John L. Walker, Nausead Stewart, Walker & Walker, Frank T. Moore, Jr., John Robert White, Wells, Moore, Simmons, Stubblefield & Neld, Michael S. Allred, Edwin Y. Hannan, Satterfield & Allred, Jackson, for appellants.
Thomas W. Tardy, III, Leonard D. Van Slyke, Jr., Terryl K. Rushing, Thomas, Price, Alston, Jones & Davis, Charles H. Ramberg, Elizabeth Gilchrist, Jackson, for appellees.
Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.
This case involves the Hinds County Board of Supervisors which was under a chancery court injunction to comply with the Open Meetings Act, Miss.Code Ann. Sec. 25-41-1, et seq., Ch. 481, Laws 1975, and the record reveals well over fifty violations of the Act and the Consent Decree placing the Board under the injunction. Two of the Board members agreed that the Consent Decree had been violated, and contended they endeavored to persuade the other members to comply with the Decree. The position of the remaining members of the Board is that the violations were at most technical, and in reality peccadillos. For the reasons we will set forth, we attach more significance and importance to the technical requirements of the Act than these Board members.
We reverse and render the imposition of criminal sentences when the chancellor only found the defendants guilty of civil Some acquaintance with the philosophy behind, as well as the technical requirements of the Act, is requisite to placing the Board's transgressions in proper perspective. Thus, we preface our opinion with some law.
contempt; we reverse and render the chancellor's finding that Supervisors Bennie Thompson and Frank J. Bryan, Jr., were guilty of civil contempt; we reverse the chancellor's vacating the Consent Decree and reinstate it; and reverse the chancellor's disallowance of attorney's fees.
In Mayor & Aldermen of Vicksburg v. Vicksburg Printing & Pub., 434 So.2d 1333, 1336 (Miss.1983), we stated:
Openness in government is the public policy of this state. It is conducive to good government, and heroic deeds.
* * * * * *
However inconvenient openness may be to some, it is the legislatively decreed public policy of this state.
In Board of Trustees, et al. v. Miss. Publishers Corp., 478 So.2d 269 (Miss.1985), we reiterated our holding in Mayor & Aldermen of Vicksburg, supra, and stated, "The Open Meetings Act was enacted for the benefit of the public and is to be construed liberally in favor of the public." Id. at 276.
The philosophy of the Open Meetings Act is that all deliberations, decisions and business of all governmental boards and commissions, unless specifically excluded by statute, shall be open to the public. Miss.Code Ann. Sec. 25-41-1.
No doubt there are occasions when board members would speak more frankly on some matter if only the board members were present, and no doubt there are instances in which a board member would personally prefer to speak only to his colleagues. Of far greater importance, however, is that all public business be open to the public. Every member of every public board and commission in this state should always bear in mind that the spirit of the Act is that a citizen spectator, including any representative of the press, has just as much right to attend the meeting and see and hear everything that is going on as has any member of the board or commission. Miss.Code Ann. Sec. 25-41-1; Mayor & Aldermen of Vicksburg, supra; Board of Trustees v. Miss. Publishers Corp., supra.
A citizen spectator or news reporter is not a participant. He has no right to intrude or interfere in any manner with the discussion, deliberation or decision-making process. Miss.Code Ann. Sec. 25-41-9; Wood v. Marston, 442 So.2d 934, 941 (Fla.1983). But he does have a right enforceable at law to be there and see and hear everything.
There is no question but that the Hinds County Board of Supervisors was and is a "public body" under the Act, Miss.Code Ann. Sec. 25-41-3, and required to hold its meetings public and open. Miss.Code Ann. Sec. 25-41-5.
Most of the violations in this case involved the Board going into executive session without complying with Miss.Code Ann. Sec. 25-41-7, set forth in full in Appendix A. This section has mandatory requirements as to all executive sessions, which may be summarized as follows:
1. The meeting must begin as an Open Meeting. [Miss.Code Ann. Sec. 25-41-7(1) ]
2. A member must make motion in Open Meeting for the meeting to be closed to determine whether or not the Board should declare an executive session. The statute does not require a second to this motion, but the vote on this motion is taken in Open Meeting. If a majority votes to close the meeting to make a determination on the question of an executive session, the meeting is closed for this purpose. [Miss.Code Ann. Sec. 25-41-7(2) ]
3. No other business during this closed interim shall be considered until a vote has been taken on whether or not to declare an executive session. [Miss.Code Ann. Sec. 25-41-7(2) ] In order to go into executive session, a majority of three-fifths of those present must vote 4. The Board must then state in Open Meeting the reason for going into executive session, and this reason and total vote thereon must thereafter be recorded on the minutes of the meeting. [Miss.Code Ann. Sec. 25-41-7(3), (5) ]
in favor of it. [Miss.Code Ann. Sec. 25-41-7(1) ]
5. The vote to go into executive session is applicable only to that particular meeting on that particular day. [Miss.Code Ann. Sec. 25-41-7(6) ]
For illustration, the board meeting must begin as an open meeting, Miss.Code Ann. Sec. 25-41-7(1), following which if some matter is either brought up or about to be discussed which any member believes should be discussed in executive session, he must make a motion to close the meeting to determine if the board should go into executive session. The member making the motion is not required at that time to disclose the reason, nor is there any need for a second, but there must be a majority vote in favor of closing the meeting to make this determination. Miss.Code Ann. Sec. 25-41-7(2).
Upon majority vote the meeting is closed. The board then is permitted to discuss whether or not to go into executive session, but no other business than this particular matter may then be discussed. Miss.Code Ann. Sec. 25-41-7(2). If a three-fifths majority of the board votes to go into executive session, the chairman must then re-open the meeting and announce publicly that the board is going into executive session, and give the reason for doing so. Miss.Code Ann. Sec. 25-41-7(3), (5). The reason given, of course, must be meaningful. It must be more than some generalized term which in reality tells the public nothing. To simply say, "personnel matters," or "litigation," tells nothing. The reason stated must be of sufficient specificity to inform those present that there is in reality a specific, discrete matter or area which the board had determined should be discussed in executive session.
The board may then go into executive session to discuss this one matter and, when concluded, must re-open the meeting. No other matter may be discussed at the executive session than the announced subject.
This entire procedure and the vote on each stage must thereafter be recorded on the minutes.
While it is not for this Court or any board to question the wisdom of these requirements, there are very good reasons for each of them.
When a member of the board believes the board needs to go into executive session, he may very well not know the precise reason or how it should be stated, or in fact that the board will agree with him, or the board attorney may advise that the matter is not a proper subject for executive session. Therefore, he is not required to give any reason for asking that the meeting be temporarily closed to determine the need for an executive session.
In a short, temporarily closed meeting, however, the board can determine the precise matter to be discussed and considered, and whether or not an executive session is appropriate. If by a three-fifths vote it is decided to go into executive session, the chairman must re-open the meeting and announce publicly that the board is going into executive session, and state the reason for doing so. The chairman then knows precisely why the board is going into executive session. He must publicly state the reason with sufficient specificity for the audience to know in fact that there is an actual, specific matter which is to be discussed and considered in executive session.
When a board chairman tells a citizen he may not hear the board discuss certain business, he is taking liberties with the rights of that citizen, and the reason given for this interference must be genuine and meaningful, and one the citizen can understand. To permit generalized fluff would frustrate the very purpose of the Act. 1
This Court is cognizant that when there is indeed a valid, legitimate reason to go into executive session it may deal with some sensitive matters such as a person's character, or some investigation which for the time being should not be publicly discussed. The board should not be required to give the reason for going into executive session in such detail as to defeat the very purpose of going into executive session. At the same time, it must, as above noted, disclose enough so that the audience can know in fact that there is some specific area of matter that the board has wisely concluded should, for the...
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