Zseltvay v. Metropolitan Government of Nashville and Davidson County
| Decision Date | 31 July 1998 |
| Parties | Don ZSELTVAY, Plaintiff/Appellant, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Defendant/Appellee. |
| Court | Tennessee Court of Appeals |
Dan R. Alexander, Nashville, Tennessee, for Plaintiff/Appellant.
James L. Murphy III, Director of Law, Rachel D. Allen, Lizabeth D. Foster, Thomas G. Cross, Nashville, Tennessee, for Defendant/Appellee.
The plaintiff claimed that Nashville's Board of Parks and Recreation conducted its business in such a way as to violate the Open Meetings Act, Tenn.Code Ann. § 8-44-101, et seq. The trial court refused to discipline the Board, dismissing the complaint against it on a finding that the Board had committed a merely technical violation of the Act. We reverse, and direct the court to impose judicial oversight upon the Board, as is required by the Act, but we decline to comply with the plaintiff's request that we declare the Board's action to be void and of no effect.
On April 4, 1995, the Board of Parks and Recreation of Nashville and Davidson County (the Board) held its regular monthly meeting. The matters on the agenda included consideration of the acquisition of a 195 acre tract of real estate known as Grassmere Wildlife Park. It is undisputed that prior to this meeting, the Board met the public notice requirements of Tenn.Code Ann. § 8-44-103 of the Open Meetings Act. The only reference to Grassmere in the subsequently published minutes of the meeting of April 4 are found as follows under the heading of Old Business:
GRASSMERE WILDLIFE PARK UPDATE
Mr. Bob Sullivan, President and CEO of Cumberland Museums, was present to answer questions from the Board regarding the acquisition. Ms. Erika Geetter, attorney for the Metropolitan Government was also present to introduce the proposed management agreement for Grassmere Wildlife Park. All proposed agreements are subject to Metropolitan Council approval.
On May 16, 1995, the Metro Council (the Council) adopted a resolution approving the purchase of Grassmere. The resolution recited that the purchase had been approved by the Board of Parks and Recreation and the Metropolitan Planning Commission.
On January 2, 1996, Donald Zseltvay filed a complaint in the Circuit Court for Davidson County. He claimed that the Board had never taken a vote on the acquisition of Grassmere, and that since the Metro Charter required that the Metro Council obtain the approval of the Board prior to the acquisition of any land for recreational purposes, the Council's action was null and void. He also claimed that the Board had violated the Open Meetings Act.
On that same day, the Board of Parks and Recreation held another regularly scheduled meeting, at which Mr. Zseltvay was present. Prompted in part by a letter from Erika Geetter which pointed out the deficiency in the minutes of the earlier meeting, the Board took the action which is described in the minutes of the January 2 meeting as follows:
GRASSMERE WILDLIFE PARK UPDATE
It was also noted that during the April 1995 Park Board meeting the sale of the Grassmere property to Metro as well as the proposed management agreement for the running of the park were discussed by the Board. However the April minutes do not reflect the action taken by the Board to accept the Grassmere Property and proceed with the acquisition. Upon motion of Ms. Jones, seconded by Mr. Fossick, the Board unanimously accepted and approved the acquisition of Grassmere. The Board further resolved that the minutes of the April 1995 meeting should be amended to reflect the Park Board's approval.
After a hearing on Mr. Zseltvay's complaint, the trial court found that the Board had corrected any technical mistakes relating to its meeting of April 4, 1995, and dismissed the complaint for failure to state a claim upon which relief may be granted. The plaintiff subsequently appealed.
On January 6, 1997, this Court filed an opinion which affirmed the trial court in part and reversed it in part. We found that Mr. Zseltvay lacked standing to challenge the Metro Council's purchase of the Grassmere property, because he did not allege any personal interest in the property, or that he would suffer any damages or injuries from the completion of the transaction "different in character or kind from those sustained by the public at large." Quoting from Badgett v. Rogers, 436 S.W.2d 292, 294, 222 Tenn. 374, 379 (1968).
We also held that the provision of the Metro Charter which requires a recommendation by the Board prior to the acquisition of property did not apply to the transaction in question, because it specifies only acquisition by condemnation and acceptance of gifts of land, but does not mention purchase without condemnation, which was the transaction authorized by the Council resolution. See Metro Charter Sec. 11.1002(5). We accordingly affirmed the trial court's dismissal of Mr. Zseltvay's claim against the Metro Council.
However we noted that Tenn.Code Ann. § 8-44-106 of the Open Meeting Act gives the courts jurisdiction to enforce the Act "upon application of any citizen of this state." Thus there was no question of standing to prevent Mr. Zseltvay from pursuing his action against the Board of Parks and Recreation, and we reversed that portion of the trial court's order that dismissed his claim against the Board for violating the Act.
On remand, the trial court heard evidence from four witnesses including Mr. Zseltvay, after which it again dismissed his claim. In its findings of fact and conclusions of law, the court found that the Board fully discussed the subject of the acquisition of the Grassmere Wildlife Park property at its meeting of April 4, 1995; that the minutes of that meeting do not clearly reflect the Board's vote of approval of the acquisition of the Grassmere property; and that the meeting of January 2, 1996 was an open meeting pursuant to the Act, at which the Board cured any technical violation relating to the earlier meeting. The present appeal followed.
The policy behind the Public Meetings Act is stated clearly and simply in Tenn.Code Ann. § 8-44-101: "The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret." To this end, other provisions of the Act require that meetings of any governing body be open to the public, Tenn.Code Ann. § 8-44-102, that adequate public notice be given of the regular and special meetings of governmental bodies, Tenn.Code Ann. § 8-44-103, that the minutes of any such meeting be promptly and fully recorded, and be open to public inspection, Tenn.Code Ann. § 8-44-104(a), and that all votes of governmental bodies be public, Tenn.Code Ann. § 8-44-104(b).
The chief violation of the Act alleged by the appellant involves Tenn.Code Ann. § 8-44-104(a) which reads in its entirety as follows:
(a) The minutes of a meeting of any such governmental body shall be promptly and fully recorded, shall be open to public inspection, and shall include, but not be limited to, a record of persons present, all motions, proposals and resolutions offered, the results of any votes taken, and a record of individual votes in event of roll call.
The appellee admits that it failed to fully record the minutes of its meeting of April 4, 1995, but insists that an open vote was taken in accordance with the Act, that the failure to record it was inadvertent, and that the error was corrected by its subsequent modification of the minutes on January 2, 1996. As we stated above, the trial court issued findings of fact and conclusions of law that were consistent with the appellee's theory. The trial court stated that any violation of the Open Meetings Act on the part of the Board was a "technical violation", and a "violation ... of form rather than substance."
Our review of the findings of fact of the trial court is governed by Rule 13(d) of the Rules of Appellate Procedure, which states that such findings shall be accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Thus, we must affirm the court's finding that the Board fully discussed and voted upon the recommendation as to the acquisition of Grassmere, unless the evidence preponderates otherwise.
Three witnesses who were present at that meeting testified at trial on September 2, 1997. Jim Fyke, the Director of the Board of Parks and Recreation, testified that there had been an open and full discussion of the acquisition at the April 1995 meeting, but he could not swear that there was a vote taken, because he did not remember. Edwin Bryan, a Board...
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