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BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING, ET AL. v. MISSISSIPPI PUBLISHERS CORPORATION

OCTOBER 02, 1985

BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING, ET AL.
v.
MISSISSIPPI PUBLISHERS CORPORATION



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

Openness in government is the statutorily declared public policy of this state. This appeal challenges the application of that policy to the Board of Trustees of State Institutions of Higher Learning. The basis of this challenge lies in the Board of Trustee's assertion that, as a constitutionally created board, it is prevented from discharging its constitutional responsibilities by the" open meetings "statute and that in certain sensitive areas the open meetings statute has no application to it. This appeal, therefore, addresses state constitutional and statutory

interpretations.

 In the Chancery Court of Hinds County, Mississippi Publishers Corporation, a Mississippi corporation, filed and was granted an injunction against the Board of Trustees of State Institutions of Higher Learning (hereafter referred to as the Board) and its individual members for violation of the" Open Meetings "Act, the Board of Trustees powers act, and the freedom of the press constitutional guarantee. The College Board appeals from this adverse ruling; this Court affirms the chancery court action as properly interpreting Mississippi constitutional and statutory provisions, with only minor exceptions.

 I.

 On September 20, 1983, Mississippi Publishers Corporation filed suit against the Board of Trustees of State Institutions of Higher Learning and the individuals of the Board in their official capacities, alleging that the Board had violated certain provisions of the Open Meetings Act, Miss. Code Ann. 25-41-1 et seq. (Supp. 1984) (hereinafter referred to as Open Meeting Act) and the Board of Trustees Powers Act, Miss. Code Ann. 37-101-1 to 283 (Supp. 1984) (hereafter referred to as the powers act) and the constitutional guarantee of freedom of the press. Miss. Const. art. 3, 13. U.S. Const. amend. I.

 Mississippi Publishers alleged the Board violated the open meetings act by meeting in executive session in instances not permitted by the statute, by going into executive session without making certain allegedly necessary preliminary findings, and by committing various minutes and record-keeping violations. Mississippi Publishers later amended its complaint to include allegations that it had been denied its constitutional rights through the Board's exclusion of one of the Mississippi Publishers' employees from its November, 1983 luncheon with student leaders. Mississippi Publishers requested writs of mandamus and preliminary and permanent injunctive relief enjoining future violation of the statutes. The College Board sought a dismissal of the suit, but the chancery court granted a preliminary injunction which injunction was later made permanent with one exception. The material designated as the academic program review was this exception.

 A post-trial motion for attorney's fees to Mississippi Publishers was disallowed by the chancellor. Facts supporting these pleadings will be detailed as the opinion develops.

 II.

 The Board assigns the following as error committed by the Chancery Court of the First Judicial District of Hinds County, Mississippi in its adjudication of the case below.

 (1) The lower court erred in holding that the Open Meetings Act is constitutional as applied to the Board insofar as the application of the Act prevents the Board from managing and controlling the Institutions of Higher Learning to the best advantage of the people of this state.

 (2) The lower court erred in holding that the Board has no power to promulgate additional exemptions to open meetings.

 (3) The lower court erred in sustaining the plaintiff's objection to the testimony of Ben Stone.

 (4) The lower court erred in holding that the Board's Wednesday-morning sessions with institutional executive officers are" meetings "within the meaning of the Act.

 (5) The lower court erred in holding that the Board's luncheons with student government officials are" meetings "within the meaning of the Act.

 (6) The lower court erred in holding that the Board is required to record, by individual member, the vote taken to go into executive session.

 (7) The lower court erred in requiring the Board to make certain findings a part of its records prior to entering into executive session concerning personnel and litigation matters.

 (8) The lower court erred in defining the term" personnel "in a manner more restrictive than that found in the Act.

 (9) The lower court erred in finding that the Board had used executive sessions to defeat the purpose of the Act by conducting telephone calls.

 Mississippi Publishers Corporation cross-appeals and assigns the following error committed by the Chancery Court of the First Judicial District of Hinds County, Mississippi in its adjudication of the case below:

 Because Mississippi Publishers was the prevailing party on its claims under the First and Fourteenth Amendment of the United States Constitution and 42 U.S.C. 1983, the lower court erred in denying Mississippi Publishers any attorney's fees under 42 U.S.C. 1988.

 III.

 Is the constitutionally created College Board exempt from the statute relating to open meetings of public bodies?

 The Board of Trustees of the State Institutions of Higher Learning was constitutionally created by the enactment of Article 8 213-A of the Mississippi Constitution in 1942, and is, in pertinent part as follows:

 The State institutions of higher learning . . . shall be under the management and control of a Board of Trustees to be known as the Board of Trustees of state institutions of higher learning, the members thereof to be appointed by the Governor of the State with the advice and consent of the Senate. The Governor shall appoint only men and women . . . of the highest order of intelligence, character, learning, and fitness for the performance of such duties, to the end that such Board shall perform the high and honorable duties thereof to the greatest advantage of the people of the State of such educational institutions, uninfluenced by any political considerations . . . for a period of twelve years

 . . .

 Such Board shall have the power and authority to elect the heads of the various institutions of higher learning, and contract with all deans, professors and other members of the teaching staff, and all administrative employees of said institutions for a term not exceeding four years; but said Board shall have the power and authority to terminate any such contract at any time for malfeasance, inefficiency or contumacious conduct, but never for political reasons.

 Nothing herein contained shall in any way limit or take away the power of the Legislature had and possessed, if any, at the time of the adoption of this amendment, to consolidate or abolish any of the above named institutions.

 The history of the passage of this constitutional amendment is set forth in State v. Board of Trustees of Institutions, 387 So.2d 89 (Miss. 1980), when it was acknowledged:

 [T]hat for many years those institutions had been" political footballs "of the politicians then in power. At one time, the accreditation was taken from most of the institutions because of the action of whomever was in power politically at that time. By the year 1944, the people of the state and the members of the Legislature were ready to cure the previous political diseases. Consequently, section 213-A was approved by the Legislature and the electorate and became a part of the Constitution without subsequent change or amendment.

 Id. at 91.

 The political ramification to which this quotation referred was the gubernatorial attempt to control the College Board and interfere with the integrity of its management. G. Sansing," An Historical Background of Events Leading to a Constitutional Board of Trustees "in Mississippi Law Research Institute, An Analysis of the Law of Separation of Powers Applicable to the Government of Higher Education 1-14 (1978).

 By subsequent legislative enactment, the Board was given wide latitude and discretion in decisions concerning its management and control of the universities and colleges. See Miss. Code Ann. 37-101-1 through 15 (Supp. 1984). Miss. Code Ann. 37-101-15 (c) sets forth these powers to include:

 The board shall exercise all the powers and prerogatives conferred upon it under the laws establishing and providing for the operation of the several institutions herein specified. The board shall adopt such bylaws and regulations from time to time as it deems expedient for the proper supervision and control of the several institutions of higher learning, insofar as such bylaws and regulations are not repugnant to the constitution and laws, and not inconsistent with the object for which these institutions were established. The board shall have power and authority to prescribe rules and regulations for

 policing the campuses and all buildings of the respective institutions, to authorize the arrest of all persons violating on any campus any criminal law of the state, and to have such law violaters [sic] turned over to the civil authorities.

 Thus, the Board exercises statutory duties of a wide scope and magnitude administering and governing eight universities of this state, in addition to the Research and Development Center, and the Gulf Coast Research Laboratory, in areas of finance allocation, physical facilities, degree programs and policy, admission standards, employment and student problems. Because of the breadth of its responsibility and the impact of its decisions upon Mississippi citizens, the Board asserts that certain topics are of such a sensitive nature as to exclude their public discussion.

 In furtherance of this attitude, the Board adopted a resolution on January 19, 1984, to amend the bylaws and policies of the Board by adding proposed exceptions to its open meetings in addition to those provided by the Legislature in 25-41-1 et seq. Miss. Code Ann. (Supp. 1984). *fn1 These code sections are generally referred to as the" open meeting "law, and specifically section 25-41-7 (4) provides those occasions when a public body may hold an executive session.

 These statutorily permitted instances are:

 (4) A public body may hold an executive session pursuant to this section for one or more ...


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