State ex rel. Bd. of Public Utilities of City of Springfield v. Crow

• Decision Date: 17 December 1979
• Docket Number: No. 11119,11119
• Citation: 592 S.W.2d 285
• Parties: 103 L.R.R.M. (BNA) 2868, 5 Media L. Rep. 2574 STATE ex rel. BOARD OF PUBLIC UTILITIES of the CITY OF SPRINGFIELD, Missouri, and Del Caywood, Denton Smith, Nancy Hoflund, J. David Lages, Ransom Ellis, N. L. McCartney, Russell Harthcock and William E. Hoyer, individually and as members of the Board of Public Utilities, Relators, v. The Honorable John C. CROW, Judge, 31st Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

Page 285

592 S.W.2d 285

103 L.R.R.M. (BNA) 2868, 5 Media L. Rep. 2574

STATE ex rel. BOARD OF PUBLIC UTILITIES of the CITY OF SPRINGFIELD, Missouri, and Del Caywood, Denton Smith, Nancy Hoflund, J. David Lages, Ransom Ellis, N. L. McCartney Russell Harthcock and William E. Hoyer, individually and as members of the Board of Public Utilities, Relators, v. The Honorable John C. CROW, Judge, 31st Judicial Circuit, Respondent.

No. 11119.

Missouri Court of Appeals, Southern District.

Dec. 17, 1979.

Motion for Rehearing or Transfer Denied Jan. 16, 1980.

Application to Transfer Denied Feb. 11, 1980.

Richard D. Crites, General Counsel, Daniel T. Ramsdell, Asst. General Counsel, Springfield, for relator Board.

Robert W. Schroff, Schroff, Keeter, Glass & Newberry, P. C., Springfield, for relators individually.

Robert C. Fields, Fields & Kays, P. C., Springfield, for relator Hoyer

Lincoln J. Knauer, Jr., Farrington, Curtis, Knauer, Hart & Garrison, Springfield, for respondent.

Aaron A. Wilson, City Atty., Sam B. Mumma, Asst. City Atty., Harry L. Browne, Howard F. Sachs, Spencer, Fane, Britt & Browne, Kansas City, for City of Kansas City, amicus curiae.

HOGAN, Judge.

This is an original proceeding in prohibition. We are called on to decide whether the Open Meetings Act, §§ 610.010-610.030, RSMo 1978, V.A.M.S., requires that relators' bargaining sessions or their discussions of negotiations being held pursuant to the Public Sector Labor Law, §§ 105.500-105.530, RSMo 1978, V.A.M.S., be conducted as open meetings. We conclude it does not.

The cause came to us thus: On April 3, 1978, the members of the Springfield Board of Public Utilities (hereinafter the board) were negotiating with several labor unions representing their employees. No agreement had been reached. The board's chairman called a joint meeting of its "administrative committee" and its "executive committee". No public notice of the meeting was given. Eight members of the board and its principal negotiator attended the meeting. The status of the negotiations and the issues remaining in dispute were discussed. Apparently, no record of the meeting was kept.

On the following day, the board met again, this time to resume a meeting which had been adjourned at an earlier date. No public notice was given that the adjourned meeting would resume on April 4, but it stands conceded that the minutes of the adjourned meeting indicated it would resume on April 4. During this meeting the board members considered the use of a proposed pricing index and other data as possible bases for determining cost of living increases proposed by its employees. The matters discussed were live issues in the board's negotiations with the unions.

At some point during the meeting of April 4, it was moved that the board go into closed session and the motion carried. A reporter employed by Springfield Newspapers questioned the propriety of closing the meeting and requested admittance; his request was denied. In closed session, the board discussed its employees' proposals with which it disagreed. The topics discussed were political activity of its employees, the data to be used in fixing wage rates, and, apparently, proposals dealing with arbitration and delegation of the board's legal authority to managerial employees. After 30 minutes in closed session, the board reopened the meeting and rejected a proposed quarterly cost of living index and a pricing index as data to be used in negotiation.

Shortly thereafter Springfield Newspapers, Inc., as plaintiff, filed a petition for injunctive relief in the Circuit Court of Greene County. The respondent granted a restraining order enjoining the relators individually and as the Springfield Board of Public Utilities from: 1) holding meetings or gathering together to discuss wages and terms of employment with regard to public employees without adequate and timely public notice of such meetings or gatherings; and 2) adjourning, recessing or closing parts of public meetings to "discuss . . . the business of the public, and especially as it pertains to wages and working conditions of public employees." This order, dated April 14, 1978, also restrains the members of the board, as individual persons, "from attending or participating in such (sic) closed sessions."

On April 20, 1978, the respondent heard evidence and the next day modified his restraining order so as to enjoin relators ". . . from holding meetings or gathering together to discuss wages and terms of employment with regard to public employees as a group without adequate and timely public notice of such meetings or gatherings." The modified order further enjoined ". . . the individual members . . . from attending or participating in closed sessions at which wages and terms of employment with regard to public employees as a group are discussed." The respondent heard further evidence on April 20; subsequently he notified counsel of his findings and by letter advised all parties that he would, unless prohibited from doing so, enter a temporary injunction which would restrain the relators in their capacity as board members from attending or participating in closed sessions in which the wages and terms of employment of its employees as a group were to be discussed. On July 28 1978, relators filed their petition for a writ of prohibition here. A majority of the court believed that the respondent had misconstrued the Open Meetings Act; all considered that because violations of injunctive orders are punishable by attachment for contempt, Rule 92.15, V.A.M.R., respondent was about to effect a continuing state of "confrontation" between the Circuit Court of Greene County and the Springfield Board of Public Utilities. Our preliminary writ ran, perhaps too broadly. The cause has been briefed and argued to the whole court.

A preliminary word of limitation seems appropriate. Counsel's attention was called to the rule that our factual inquiry is limited in prohibition, and to the rule that prohibition is not available to correct errors which may be corrected on appeal. State ex rel. W. A. Ross Const. Co. v. Skinker, 341 Mo. 28, 32-33, 106 S.W.2d 409, 411-412(4, 5) (6) (1937); State ex rel. Specialty Foam Products v. Keet, 579 S.W.2d 650, 653 (Mo.App.1979). Nevertheless, our files contain an incredible number of motions, suggestions and exhibits of various species, even a partial transcript. An amicus brief has been filed. Such a superfluity of marginally relevant matter serves only to obscure the real question at issue. This is not an appeal nor a proceeding for a declaratory judgment and it is not our function to deal with issues which may be resolved in the trial court and orderly determined on appeal. We consider only those matters essential to a disposition of the cause.

On the merits, we reject out of hand the relators' contention that as the Springfield Board of Public Utilities, they are not a "public governmental body" within the intent of § 610.010(2), RSMo 1978. ¹ By virtue of §§ 16.6 and 16.7 of the Springfield City Charter, the relators hold all the public utilities of the city in trust for the citizens of Springfield and operate those utilities for their benefit. Relators' emphasis on the distinction between "governmental" and "proprietary" activities is important in tort cases, but here it has no significance. The functions exercised by the relators, for our purposes in this cause, are governmental functions. See, e. g., Lober v. Kansas City, 74 S.W.2d 815, 822-823(11) (Mo.1934). The real issue before us is whether the statute opening the conduct of public business to the general public was meant to accommodate the constitutionally protected rights granted to public employees by the present Public Sector Labor Law. These two interests may be briefly contrasted, bearing in mind that we are firmly held and bound by the last controlling decision of our Supreme Court. Mo.Const. art. V, § 2; Pitts v. Malcolm Bliss Mental Health Center, 521 S.W.2d 501, 503(1, 2) (Mo.App.1975).

The public interest in the public conduct of public business is declared by the Open Meetings Act, § 610.015, RSMo 1978, in the following language: (emphasis is ours)

"Except as provided in section 610.025, and except as otherwise provided by law, all public votes shall be recorded, any if a roll call is taken, as to attribute each 'yea' and 'nay' vote, or abstinence if not voting, to the name of the individual member of the public governmental body, and all public meetings shall be open to the public and public votes and public records shall be open to the public for inspection and duplication."

Comment on this statute by this court would be singularly inappropriate. In Cohen v. Poelker, 520 S.W.2d 50, 52(1) (Mo. banc 1975), our Supreme Court declared:

"The several sections of Chapter 610, considered together, speak loudly and clearly for the General Assembly that its intent in enacting the Sunshine Law, so-called was that all meetings of members of public governmental bodies (except those described in § 610.025) at which the peoples' business is considered must be open to the people and not conducted in secrecy, and also that the records of the body and the votes of its members must be open."

The court also held that the Open Meetings Act was a statute of general application, binding statewide at all levels of government, including constitutional charter cities. Cohen v. Poelker, supra, 520 S.W.2d at 54.

The statutes granting bargaining rights, of a sort, to public employees have a long and tortuous history which we need not restate. It is, however, clear that public employees' limited bargaining rights are constitutionally protected. In material part, § 105.510, RSMo 1978, V.A.M.S., provides: (our emphasis)

"Employees . . . of any public body Shall have the right to form and join labor organizations And to present proposals to any public body relative to salaries and other conditions of employment through...