IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CC-00897-SCT
MAY OR AND CITY

COUNCIL AND CITY OF COLUMBUS

v. THE COMMERCIAL DISPATCH

DATE OF JUDGMENT: 05/24/2016 TRIAL JUDGE: HON. KENNETH M. BURNS TRIAL COURT ATTORNEYS: DAVID MICHAEL HURST, JR. JEFFREY JOHNSON TURNAGE MICHAEL D. CHASE CHRISTOPHER THOMAS GRAHAM COURT FROM W HICH APPEALED: LOW NDES COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: MICHAEL D. CHASE JEFFREY J. TURNAGE ATTORNEYS FOR APPELLEE: D. MICHAEL HURST, JR. CLAY B. BALDW IN NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 09/07/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. The May o r

and the City Council m em bers f or the City of Colum

bus held f

our pairs of prearranged, nonsocial and subquorum g atherings over the course of two m onths. The gatherings were on the topic s of econom ic developm ent and m aintenance of a public building. For each p a ir of gatherings, the May or f irst m et w ith three Council m em bers, and then later the sam e day , he m e t with the rem aining t hree Council m em bers on the sam e topic.Because a ll of the gatherings were just shy of a quorum —f our C o uncil m em

bers would have constituted a quorum

—the gatherings were not open to the public. ¶2. A reporter f

or The Commercial Dispatch received notice of the m eetings, and he f iled

an Open Meetings Act Com plaint against the May or and the City o f Colum b us. T he Ethics
Com m i ssion f

ound t hat the May or and the City of Colum b us h ad v iolated the Open Meetings
Act

. T he May or and the C ity of Colum bus appealed to the c h ancery court. T he chancery

court af f irm ed the Com m ission’s judgm ent on d e novo review. The May or and t he City of Colum bus appealed to this Court. W e af f irm the judgm ent of

the chancery

court. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶3. The City of Colum bus’s governing body consists of six City Council m em bers and the May o r. The May or does not alway s vote; he votes only when the quorum ’ s vote results in

a t ie. The May or and the Council m em bers held f

our pairs of gatherings o ver the course of

two m onths that were n ot open to the p ublic. All o f the g ath e r i n g s w e r e p r e arranged and took place in the May or’s conf e rence room . ¶4. The f

irst three pairs of gatherings o ccurred on January 23, 2014, F ebruary 3, 2014 and Februa r y 2 4, 2014. The gatherings covered the subject of econom i c d evelopm ent, specif ically , retail developm e nt in Colum b us. At e a ch o f the g atherings, the Council

m em bers me t in two subquorum groups of three, and each subquorum group m et with the May o r and representatives f rom the Golden Triangle Developm ent Link ( the Link). Af ter the gatherings, t he Link a n n o u n c e d that it had “ decided to renew their r etail d evelopm ent partnership” with the City of Colum

bus.

2¶5. T h e l a s t pair of gatherings occurred on February 27, 2014, covering the s u b j e c t o f renovations to a p u

blic b u ilding. Once again, the Council m em bers split into two subquorum
groups of three to m eet w ith the M ay or. Af ter the gatherings, City o f f icials issued a press release announcing how the project would be m anaged. ¶6. A reporter f

o r Th e C o m m e r c i al Dispatch ( The Dispatch ), Robert Nathan Gregory , requested to “sit in on” the gatherings that t ook p lace on February 27, 2014. He was denied entry

. Af ter speaking t o the chief operations of f icer f or the City of Colum

b us, Gregory l e a r n e d t hat sim ilar g atherings had occurred on January 23, 2014, February 3, 2014 an d February 24, 2 014. G regory f iled an O p e n M e e t ings Act Com plaint with the Mississippi Ethics Com m ission detailing the f our pairs of

gatherings. ¶7. The Ethics Com m ission issued its Final Order on Decem ber 5, 2 014. The Final Order
f ound that the subject gatherings had circum v ented the Open Meetings A ct (the A ct), and by circum venting the Act, the May or and City Council h ad violated it, specif ic a l ly citing Mississippi Code Section 25-41-1, Mississippi Code S ection 2 5-41-3 a nd Mississippi Code Section 2 5-41-5. The Com m ission ordered t he M ay or and the City Council to “ref rain f rom f urther violations” and “com ply strictly with [ the Act].” ¶8. The May or and the City Council a ppealed to the Chancery Court of Lowndes County

. On appeal, The Dispatch stepped in as the petitioner in place of Gregory

. 1 O n May 24, 2016, af ter a de novo review, the t rial cou r t issued its Opinion and Judgm e n t. The trial court

1 A lth o u g h T

h e D isp a tch p ick e d u p th e case o n th e trial-co u rt lev el, th e trial co u rt n ev er r u l e d o n th e M o tio n to S u b stitu te t h e P etitio n ers. H o w ev er, a M o tio n w as m ad e b ef o r e th is C o u rt, an d th is C o u rt issu ed an O rd er allo w in g t h e su b s titu t io n o n O cto b er 2 5 , 2 0 1 6

. 3upheld the Com m ission’s ruling that the subject gatherings had violated the Act. The May or

and the City

Council (the City ) appealed. W e af f irm

. STATEMENT OF ISSUES ¶9. On appeal, the City r aised one general issue in its statem e nt of the i ssue: “W h ether the chancery court erred i n af f irm ing the Final Order of the Mississippi Ethics Com m ission in
MEC c ase M-14-002.” In its brief , t h e C i t y t h e n resty led the issue into seven interrelated issues, and in response, The Dispatch argued three issues

. T he Court has consolidated the interrelated issues t o o ne concise issue with two subparts. The C ourt holds that the one issue with t wo subparts is dispositive, and the additional argum ents of the City are w ithout m erit.
Whether the O pen Meetings A c t r e q u i r e s p r e a r r a n g e d , n o n s ocial and subquorum s i zed gatherings r egardin g econom ic developm ent and m aintenance of a public building to be open to the public. (A) Section 25-41-1 of the Open Meetings Act is clear and unam biguous. ( B) U nder the instant facts, the g atherings should have been open to the public.

STANDARD OF REVIEW ¶10. The Open Meetings Act states that the chancery court should consider an appeal f rom the Ethics Com m i ssion de novo. Miss. Code Ann. § 25-41-15 (Supp. 2016) (“Any party m ay petiti o n t he chancery court of the county i n which the public body is l ocated t o e nf orce or appeal any order of t he Ethics Com m ission issued pursuant to this chapter. I n a n y such appeal[ ,] t he chanc e r y court shall conduct a de novo r eview.”). However, contrary to the City ’s argum ent, the statute does not explicitly state the standard of r eview f or the Suprem e

4Court; theref ore, the Court a p p l i e s the custom a ry s t andard of review. W hen reviewing
f i n d ings of f

act, the Court “will not disturb the f actual f indings of a chancell o r w h e n supported by s ubstantial e vidence unless the Court can say with reasonable certainty that the chancellor abused h is d i scretion, was m anif estly wrong, clearly errone o u s or a pplied an

erroneous legal standard.” Gannett Rive r S t ates Publ’g Corp. v. City o f Jackson , 866 So. 2d 4 62, 46 5 ( M i ss. 2004) (citing Morgan v. W est , 812 So. 2d 987, 990 (Miss. 2002)).
“W hen reviewing questions of law, this Court em ploy s a de novo standard of review and will only reverse f

or an e rroneous interpretation or application of the law.” Gannett River States Publ’g Corp. , 866 So. 2d at 465.
ANALYSIS
Whether the Open M eetings Act prohib i t s s u bquorum s ized g atherings that entail the discussion and deliberation of econom ic d evelopm ent and m aintenance of a public building to be closed to the public. ¶11. The analy sis of this issue begins with a d e n ovo determ i nation of whether Section 25-
41-1 of the Act i s p lain and unam b iguous. The Court h olds that it is plain and u nam biguous. Next, c onsidering Section 25-41-1 as plain and unam biguous, the Court determ ines whether the f indi n g s o f f

a c t of t he trial court were an a buse of d iscretion. L astly , based on the
f indings of f

act and legal analy sis, the Court concludes that the gatherings held b y the City should have been open to the public. (A) Section 25-41-1 of the Open Meetings Act is clear and unam b iguous. ¶12. In determ ining whether a statute is clear and unam biguous, the Court has stated:
No principle is m ore f

irm ly established, or rests on m ore secure f oundations, than t he r ule which declares when a law is plain and u nam b iguous, whether it

5be expressed in general or l im ited term s , that the Legislature shall be deem ed

to have intended t o m ean what they have plainly expressed, a nd, c onsequently , no room is lef t f or construction in the application of such a law. Conway v. M

ississippi State Bd

. o f H ealth , 173 So. 2d 412, 415 (Miss. 1965) (internal quotation om itted) ( quoting Wilson v. Y azoo & M.V

.R. Co. , 6 S o. 2 d 313, 314 (Miss. 1942)). Further, the Court has s tated that “ courts are without the right to substitute their judgm ent f or that of the Legislature a s to the wisdom and policy of the act and m ust enf o rce it, unless it
appears bey ond al l r e a s onable d oubt to violate the Constitution.” 5K Farm s, Inc. v. Mississippi Dep’t of Revenue , 94 So. 3d 221, 227 (Miss. 2012). ¶13. In whole, Section 25-41-1 of the Mississippi Code states:
I t b e i n g essential to the f

undam ental philosophy o f the Am erican constitutiona l f or m of representative governm ent and to the m aintenance of a dem o cratic society that public business be perf orm ed in an open and public m anner, and that citizens be a dvised of and be aware of the perf orm ance of public of

f icials and the deliberations and decisions that go i nto the m aking of public p olicy , it is hereby declared to be the policy of the S t a t e o f Mississippi that the f orm ation and d eterm ination o f public p o licy is public business a n d shall be conducted at open m e etings except as otherwise provided herein. Miss. C o d e A n n . § 25-41-1 (Rev. 2010). The City takes t he position t hat Section 25-41-1 “is a general statem ent o f legislative policy and purpose.” The D ispatch argues that “the Legislature specif

ically and unequivocally

enacted clear language in the very f irst opening section of the O pen Meetings Act[ ,] itself e x pressing the indisputable philosophy and spirit of t he Act,” and the Act s hould be construed considering the “ Philosophy a nd Spirit of [ the]
Act.” ¶14. As stated by The Dispatch , the Court has determ ined t hat Section 25-41-1 sets f orth the spirit of the Act. Hinds Cty. Bd. of Supervisors v. Com m on Cause o f M ississippi , 551

6So. 2d 107 (Miss. 1989). “The philosophy o f the Open Meetings Act is that all deliberations,

decisions a n d b usiness of all governm ental boards and com m issions, unless s pecif ically excluded by statute, shall be o pen to the public.” Id. at 110 (citing M iss. Code Ann. § 25-41- 1). Further, Every m e m

b er of e v e r y p ublic board and com m ission in this state should alway s bear in m ind that the spirit of t he Act is that a citizen spectator, including any

representative of

the press, has just as m

u ch right t o attend the m eeting and see and hear every thing that is going on a s has any m em ber of the board or com m ission.
Id. A lthough not requiring m eetings to be open could a llow f o r m ore f rank conversation or be pref erable f or the Council, it is of “f

ar greater im

portance

. . . that all public business be
open t o the public.” Id. , see also Gannett River States Publ’g Corp. , 866 So. 2d at 468. The
Act a lso provides the specif ic reas o n w h y p u b lic b usiness s hould be perf orm ed at public

m eeting; it states t hat it is “ essential to the f undam ental p hilosophy o f the A merican constitutional f

o rm of re p r esentative governm ent and to t he m aintenance of a dem ocratic society .” Miss. C ode Ann. § 25-41-1. Thus, where the Act states “ the wisdom and policy of the [ A]ct,” the Court “m ust enf orce it, unless i t a p p e a r s bey ond all reasonable doubt to violate the Constitution.” 5K Farm s, Inc. , 94 So. 3d at 227. ¶15. Aside f

rom philosophy a n d spirit of the Act, Section 25-41-1 also explicitly details what constitutes public business. It lists “ deliberations and decisions that go into the making of public policy ” and t h e n s tates, “[ I ]t is hereby declared to be the policy o f the State of Mississippi that t he

f ormation and determination o f public policy is public b usiness and shall be conducted at open m eetings except a s otherwise provided herein

. . . .” Miss. Code Ann.

7§ 25-41-1 (em phasis added). Under the em phasized language a

bove, “deliberations

. . . that
go into the m aking of

” p u blic policy are to be open to the public. I d. Further, the Court has interpreted the em

phasized sections of t he statute, holding that “the deliberative stages of the decision-m aking process that lead to ‘f orm ation and determ ination of p u b l i c p o l icy ’ are required to be open to the public.” Bd. of Trustees of State Institutions of

Higher Learning v. Mississippi Publishers Corp. , 478 So. 2d 269, 278 (Miss. 1985) (em phasis added). ¶16. Although the City argues that Section 2 5-41-1 is m erely a “general statem ent of policy and purpose,” t o ignore Section 25-41-1 sim ply because the City claim s it is a general policy would be to ignore the plain language of the Act. Section 25-41-1 a vers the philosophy and spirit of the Act, a n d i t def ines what is required to be open t o the public. See Mississippi
Publishers , 478 So. 2d at 278; see also Miss. Code Ann. § 2 5-41-1. If deliberations that “go i n t o m a king” or “lead to” public policy occur at a gathering of b oard m e m bers , t h e A c t unequivocally states that those gatherings are “pub l i c b u s iness and shall be conducted at open

m eetings.” Miss. Code Ann. § 25-41-1. Th e A c t c a rves o ut exceptions f or o nly “chance

m eetings o r social gatherings of m em bers of a p u b l i c b o dy ” o r executive sessions. Miss. Code Ann. §§ 25-41-7, 25-41-17. ¶17. Thu s , t h e C o u r t h o l d s u n d e r d e n ovo r eview that Section 25-41-1 is clear and

unam biguous. S ection 25-41-1 asserts the philosophy and spirit of the A ct. A d d i t i o n ally , Section 25-41-1 also addresses when a gathering m ust be open to the public, and determ ining when a g a t h e r i n g m

u st be open to the p ublic is a f act-intensive analy sis f

o cusing on the subject m atter of

the gathering and the circum stances surrounding the gathering.

8(B) Under the instant facts, the gatherings should have been open to t he

public. ¶18. As stated above, the g atherings a ll were prea r r a n g e d and took place in the May or’s conf erence room . The C ity Council split into two subquorum groups of three people f or each gathering. One group m et i n the m orning, and t he other group m e t in the af ternoon on the

sam e topic. The subject o f the gatherings is not in dispute. T he f i rst three day s o f gatherings

on January 22, 2014, February 3, 2014 and February 2 4, 2014, covered t he t opic of econom ic developm ent in Colum

bus, specif

ically retail d evelopm ent. Af ter these g atherings, the Link announced that it had decided to renew its retail developm ent partnership. The last pair of gather i n g s , on February 27, 2 014, involved renovations of a p ublic building. Af ter these
g a t herings, City o f

f icials issued a press r elease announcing how t he project w o u l d b e

m anaged. ¶19. T h e t r i a l court correctly noted the nature o f t he gatherin g s i n i t s O p i n i o n a n d Judgm ent. It stated, “The m eetings held by Colum b us in this case were specif ically held with

a sub-quorum present to avoid the consequences of the O p e n Meetings A ct.” The trial
court’s f inding is supported by the record, a n d i t d o es not rise to the level of an abuse of discretion. The t rial court also noted t he im portance o f the philosophy and s pirit of the Act. Further, t he gatherings were not by chance or a product of

a social gathering. Thus, as the trial court f

ound, it i s clear f

rom the r e cord that the gatherings w ere targeted a t avoiding or circum venting the Act. ¶20. T h e t r i a l c ourt also f ound “[ t]he discussions not open to the public led to o f f i c i a l action by t he Colum

bus quorum when they m et.” The record is c l ear that, although a quorum

9was never present in the s am e room at the sam e tim e, public business was discussed at all of

the gatherings. 2 Thus, this f actual conclusion also does not rise to the level of a n abuse of discretion. ¶21. T h e f

o u r p a i r s o f s u b q u o r u m g a t h e r i n g s , along with the f act that t hey

wer e prearranged, n onsocial, and on the topic of public b usiness, i llustrat e d the City ’s intent to
cir c u m v e n t o r avoid the requirem ents of the Act. The philosophy and spirit of the Act prohibit t he City f

rom intending and attem

pting to circum vent or avoid the requirem ents of the Act. A dditionally , t he plain language of Section 25-41-1 requires t he subject gatherings to be open to the p ublic. Thus, the City ’ s f ailure to hold o pen g atherings violated the Act. ¶22. To be clear, this holding is f act-specif ic. In the case s u b judice , the City acted with the express intent of circum venting the Act. The gatherings were preplanned. The attendees invited purposely constituted l ess than a quorum . T he gatherings were f or the express goal of discussing City business. Further, t he f acts support that City business was conducted and policy f o rm ulated a t the gatherings. Finally , the gatherings did n ot f all under a n y o f the exceptions specif

ied i n the Act. For these, and other reasons c o n t a i n e d i n the record, the holding of

the trial court is supported by the evidence.

2 T h e C ity ad m its in i t s b r i ef t h at “d iscu ssio n b etw een c o u n cil m em b ers reg ard in g .

. . th e to p ic at h a n d ” “p o ssib ly ” o ccu rred . In its rep ly b rief , th e C ity co n c lu d es th at “th ere is n o ev i d en ce th at an y

co u n cil m em

b er d iscu s sed th e m atters at issu e w ith m o re th an t w o o th er me m

b ers d irectly o r b y p ro x y .” T h u s, th e C ity ad m its th at p u b lic b u sin ess w as d iscu ssed , b u t it asserts t h at b ecau se a q u o ru m w a s n o t p resen t, th e d iscu ssio n s d i d n o t f all u n d er th e A ct. 1 0¶23. Further, the a dditional argum e nts brought by the City do n o t af f ect the requirem ent that the s ubject g atherings m ust be open to the public. Theref ore, they are without m erit, and we ref rain f rom addressing them

. CONCLUSION ¶24. Prearranged, nonsocial gatherings o n p u b l i c b u s i n ess that are held in subquorum
groups with the intent to cir c u mv e n t t h e A c t are required to be open to the public under Section 25-41-1 of the O pen Meetings A ct. Thus, the trial court correctly f ound that the City violated the Open Meetings Act. ¶25. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAX WELL AND BEAM, JJ., CONCUR.

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