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HINDS COUNTY BOARD OF SUPERVISORS, ROGER STEWART, GEORGE SMITH, HERSHEL WILBOURN, WALTER DENNIS, BENNIE THOMPSON AND FRANK BRYAN v. COMMON CAUSE OF MISSISSIPPI

JUNE 28, 1989

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



BEFORE HAWKINS, P.J., ROBERTSON AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

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. 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 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.

 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.

 PHILOSOPHY AND SPIRIT OF ACT

 In Mayor & Aldermen of Vicksburg v. Vicksburg Printinq & 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. 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. 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. 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. 25-41-3, and required to hold its meetings public and open. Miss. Code Ann. 25-41-5.

 THE TECHNICAL REQUIREMENTS

 Most of the violations in this case involved the Board going into executive session without complying with Miss. Code Ann. 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. 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. 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. 25-41-7 (2)] In order to go into executive session, a majority of three-fifths of those present must vote in favor of it. [Miss. Code Ann. 25-41-7 (1)]

 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. 25-41-7 (3) (5)]

 5. The vote to go into executive session is applicable only to that particular meeting on that particular day. [Miss. Code Ann. 25-41-7 (6)]

 For illustration, the board meeting must begin as an open meeting, Miss. Code Ann. 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. 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. 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. 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. *fn1

 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 time being, be discussed in private.

 Analogous is a witness asked a question which he believes will tend to incriminate him, and he desires to claim the privilege of the 5th Amendment. He is required to give the court sufficient information for the court to determine in fact that answering the question would tend to incriminate the witness. Mississippi State Bar v. Attorney L, 511 So.2d 119, 123 (Miss. 1987).

 The purpose of Miss. Code Ann. 25-41-7 is to discourage private meetings of public bodies, and closed session discussions and consideration of public business. The technical requirements of the Act not only enlighten the public that there exists a specific, valid reason for going into executive session, but also make it somewhat onerous and time consuming for the board to do so. A board required by law to follow the procedure of Miss. Code Ann. 25-41-7 will no doubt be less inclined to go into executive session than a board at liberty to do so simply by publicly stating it is going into executive session.

 Yet, as shown by Miss. Code Ann. 25-41-7 (4) there is a great number of reasons authorizing a board to hold an executive session, some of them overlapping. As applicable to a board of supervisors, they may be summarized as follows:

 1. Business related to personnel, the character, professional competence, and physical or mental health of a person.

 2. Strategy sessions regarding litigation," when an open meeting would have a detrimental effect on the litigating position "of the board

 3. Business as to security personnel, plans or devices.

 4. Where the board is involved in investigative proceedings regarding misconduct or illegality.

 5. Extraordinary emergency posing immediate or irrevocable harm to persons or property.

 6. Proposed sale, purchase or leasing of lands.

 7. Industrial or business prospects as to location, relocation or expansion.

 8. Employment and termination of employees, including deletion of jobs from budget. But final budgetary adoption must be in Open Meeting.

 Miss. Code Ann. 25-41-7 (3) also states that no executive session can be used to circumvent or to defeat the purposes of Open Meetings Chapter.

 FACTS

 On February 25, 1982, Common Cause, a nonprofit corporation, along with several individual plaintiffs filed a suit in the chancery court of the First Judicial District of Hinds County to place the Board of Supervisors under an injunction, enjoining the Board to comply with the Open Meetings Act. The Board members at the time were Roger C. Stewart, Walter L. Dennis, George Smith, Pal R. Jones and Bennie Thompson.

 A consent decree was entered by the chancery court on May 10, 1982, which was prepared jointly by attorneys for the Board and the plaintiffs. The Consent Decree is set forth in full in Appendix B.

 On November 14, 1983, the plaintiffs filed a motion to hold the defendants in contempt. Added as a named defendant was Hershel Wilbourn, who had replaced Jones on the Board. *fn2 On February 21, 1984, the Mississippi Publishers Corporation moved under Rule 24 (b) Mississippi Rules of Civil Procedure (MRCP) to intervene as a plaintiff, later sustained by the court.

 The motion for contempt was amended several times. Finally, on September 12, 1984, the plaintiffs filed an" Amended

 Complaint "which set forth over fifty allegations of violations of the Consent Decree. This final amended complaint formed the basis for the contempt hearing. The named defendants were Thompson, Wilbourn, Stewart, Smith and Frank J. Bryan, Jr., who had replaced Dennis on the Board.

 On October 3, 1984, Smith, Wilbourn, Stewart and Dennis moved to vacate the Consent Decree, contending it was void for lack of specificity as required by Rule 65, MRCP.

 The Consent Decree for the most part simply enjoined the defendants from violating the Act. As to litigation matters, however, for which Miss. Code Ann. 25-41-7 (4) (b) authorizes an executive session, the Consent Decree was more restrictive. Paragraph 2 (b) provided that" prospective "litigation was limited to an action which had been commenced in court, or where the board had received a" formal demand threatening the imminent commencement of an action, "or where the board members were plaintiffs in an" imminent action. "Also, paragraph 3 of the Decree required that on litigation matters the" action shall be identified by court, style, and number of the action, and reason shall be given why an open meeting would be detrimental to the litigation position of the board or its members. "

 Also, under Paragraph 2 (f) of the Decree regarding the exemption of the discussion of the purchase, sale or lease of lands, added in the Decree is a requirement that the parcels of land be identified before the Board may enter executive session, and under Paragraph 2 (g) of the Decree, regarding the exemption of the discussion of the location, relocation or expansion of a business or industry, added is the requirement that the business or location be identified Prior to entering executive session.

 Copies of minutes from 60 Board minutes were introduced into evidence. None of these minutes complied with Miss. Code Ann. 25-41-7. At no time did a Board member move to close the meeting in order to determine whether the Board should go into executive session. Instead, the minutes repeatedly show that a motion was made to go into executive session to discuss some generalized subject such as" personnel matters, "or" litigation, "following which the Board closed the meeting. Occasionally on" litigation "the minutes recite what purports to be a style of a case. For example, the February 18, 1983, minutes, Exhibit 18, states," All four supervisors voted `aye' to discuss Gates v. Collier in Executive Session. "The March 7, 1983, minutes, Exhibit 27, states that litigation as pertaining to the" Hinds County v. Ben Johnson Case. "The February 6, 1984, minutes, Exhibit 41, states pending litigation on" Kimball v. Hinds County and Yonkins v. Hinds County. "As above noted, most of the minutes did not even give the style of the case, simply stating" litigation "and let

 it go at that. Personnel matters were likewise vague.

 The authorization to go into executive session to discuss" personnel matters, "of course, embraces a large area of subject matter. Obviously, however, there is any number of matters of discussion involving the employees of an organization which would never require an executive session. Commendations, need to work overtime upon occasion, shift in hours of employment, increase in life insurance, any of these might very well come under the heading of" personnel matters, "but they are hardly the stuff for which a board would trouble itself to go into executive session.

 It will not suffice that the reason for which the Board went into executive session may or may not have fit under the rubric" personnel matter, "but also whether the Board gave a meaningful reason to the audience, and thereafter recorded in the minutes, for doing so. Miss. Code Ann. 25-41-7 (3) states that no executive session can be" used to circumvent or to defeat the purposes "of the Act.

 A meaningful reason is of sufficient specificity that the audience will at some later date be able to check it out. Did the Board in fact discuss that particular matter, or confine its executive session to that particular matter?

 A board which only announces" litigation "or" personnel matters "for going into executive session has said nothing. It might as well have stated to the audience," Ladies and gentlemen, we are going into executive session, "and stopped there. The Act requires that a board cannot use its statutory authority to go into executive session upon certain matters as a device to circumvent the very purposes for which it is under the Open Meetings Act. The purpose of the Act is that the business conducted at all meetings of public boards be wide open.

 Here the minutes reveal the Board failed woefully to comply with the Act. Had the Board, as required by the Act, first closed its meeting to discuss a need to go into executive session at all on these various matters, the Board president could quite easily have given the audience a reason with some particularity, some specificity and some meaning.

 The Board's disregard for the Act and Consent Decree is well illustrated in its discussions pertaining to hiring architects.

 According to Thompson, in October and November, 1982, the Board held private meetings regarding employment of architects. The members had a special voting system, each member voting for two firms, and the firm with the most votes got one job, and the

 firm with the next highest votes got another job. The public did not know of the decision until March, 1983, when an announcement was made that the Board had hired the architectural firms. The decision had already been made, however. Architectural firms called Thompson during the interim and he informed them of the Board's selection.

 Natie P. Caraway, the Board's attorney, testified the meetings were closed because hiring architects was a personnel matter under the Act. We do not agree. Hiring persons or firms who in the law will be regarded as independent contractors will almost never be" personnel matters. "

 In the first place, retaining architects or any other professional firm to do public work is not a personnel matter. Rowen v. Santa Clara Unified School Dist., 121 Cal. App. 3d 231, 175 Cal. Rptr. 292 (1981) In Board of Trustees v. Miss. Publishers Corp., supra, we held that the Act is to be construed liberally in favor of public access. Moreover, it is in the public interest that discussions with architect applicants, or any other applicant proposing to render public services or engage in a public contract, be entirely open.

 Yet even if, somehow, the hiring of an architect were a" personnel matter, "the Board was still required to effectuate such hiring at a public meeting of the Board. At this public meeting, if the Board considered that some discussion with an architect were appropriate for an executive session, it was required to take a vote as above set forth, and announce to the audience that the Board was going into executive session to discuss whatever the subject was with the architects. It certainly had to do more than simply go into executive session with the comment" personnel matters. "

 On March 7, 1983, Exhibit 27, the minutes recite:

 Motion was made by Noel McKay *fn3 and seconded by Walter Dennis, all voting aye, to go into executive session to discuss personnel matters . . .

 Thompson testified" personnel matters "was to get a follow-up report from the architectural firms. Caraway testified this was strictly a negotiation session with the architects as to their fees and accordingly was appropriate for executive session. This discussion clearly was not a" personnel matter "within the statute, as just noted, and the Board was required to give a meaningful reason for declaring an executive session. Again, this was a clear-cut violation of the Consent Decree.

 The minutes of June 14, 1982, Exhibit 46, is likewise

 illustrative:

 Bennie Thompson requested that John Brown be appointed to the Planning Board. Roger Stewart requested that this appointment be delayed until the next Board Meeting after the Board had time to discuss the matter. Natie Caraway recommended that the Board go into Executive Session to discuss this appointment along with other personnel matters and pending litigation. All voted in favor. [Emphasis added]

 The reason the Board attorney asked the Board to go into executive session was because he felt the Board was liable for suit and identifying the potential action would be self-defeating. The attorney's advice to the Board, of course, was privileged, but the subject matter of the litigation was not privileged, either under the Consent Decree or the Act.

 In summary we find:

 1. The procedure required by the Act for going into executive session was ignored.

 2. The requirement of the Consent Decree as to identifying the litigation was ignored.

 3. Stating the purpose of going into executive session was to discuss other matters than pending litigation was vague, misleading and deceptive.

 CHANCELLOR'S FINDINGS

 In a 127-page opinion the chancellor made his findings of fact and conclusions of law. The evidence adduced was meticulously recounted. The chancellor concluded that the Consent Decree had been violated in many instances, and that the minutes had not complied with it. He found the Board failed to properly identify the subject matter of an executive session, especially litigation; the Board went into executive session for reasons not authorized by the Consent Decree or the Act; and the Board had not given proper notice of its special meetings.

 The following examples again illustrate how the Act and Consent Decree were ignored, and, consequently, the public misled:

 (1) The minutes of February 6, 1984, show the Board unanimously voted to enter executive session to discuss" personnel matters and pending litigation. "The cases discussed were identified as" Kimball v. Hinds County "and" Yonkins v. Hinds County. "During this executive session, and without prior

 announcement, the Board discussed and took action on an on-going investigation by the sheriff's department of wrongdoing by county employees in connection with the county data processing office. While this topic, as contended at trial, may have been exempt under Miss. Code Ann. 25-41-7 (4) (d), failure to announce it made the topic inappropriate. Additionally, no record of the votes was placed in the minutes. Section 25-41-11.

 (2) On August 9, 1982, the Board held an executive session to discuss" budget matters, "but without further definitiveness, and consequently it remains unknown, as no one present at this meeting could remember, whether or not this discussion related to final budgetary adoption, which is required under Miss. Code Ann. 25-41-7 (c) to be discussed in open meeting.

 (3) The minutes of September 23, 1982, show the Board unanimously voted to enter executive session, yet give no reason for doing so, or informing what action was taken as required by Miss. Code Ann. 25-41-11.

 (4) On November 18, 1982, the Board entered executive session to discuss, among other things," pending litigation "and" Murray Stewart's Landfill. "" Pending litigation "was inadequate, and also, it was not explained under what statutory exemption discussion of the landfill fell or why an executive session was ...


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