Opinion
No. WD 53104, WD 53140.
Opinion Filed: September 2, 1997.
APPEAL FROM THE CIRCUIT COURT OF CALLAWAY COUNTY, THE HONORABLE FRANK CONLEY, JUDGE.
JAMES ERWIN, ST. LOUIS, MO FOR APPELLANT.
JOHN LINDSEY PATTON, COLUMBIA, MO FOR RESPONDENT.
BEFORE BERREY, P.J., SPINDEN and SMART, JJ.
James Thomas Spradlin, a Fulton resident and taxpayer, sued Fulton and its officials seeking a declaratory judgment and an injunction. Spradlin asked the circuit court to enjoin the city from issuing, without voter approval, general obligation bonds to finance construction of a golf course. Spradlin's petition contained three counts. Counts I and II of Spradlin's petition challenged the legality of Fulton's formation of a neighborhood improvement district and its financing. Those counts were disposed of by the circuit court by a second amended judgment entered on June 17, 1996, after a decision by the Supreme Court in Spradlin v. City of Fulton, 924 S.W.2d 259 (Mo.banc 1996). The remaining count, at issue in this appeal, concerns Spradlin's allegation that the city and its officials violated the Open Meetings Law, § 610.010 et seq., RSMo.
The circuit court concluded that the city and its officials violated the Open Meetings Law by discussing the proposed golf course in closed executive sessions. The circuit court rejected Fulton's claim that the meetings qualified for closure under § 610.021(2). The circuit court enjoined the city and its officials from closing any future records and from conducting any closed meetings pertaining to "the Fulton Golf Course Project, the Fulton Golf Course Neighborhood Improvement District and any bonds proposed or actually sold or issued thereunder" unless authorized by § 610.021. The circuit court also found that because the city and its officials did not purposefully violate the provisions of Chapter 610, Spradlin was not entitled to attorney fees. Spradlin and Fulton appeal. We affirm in part, and we reverse and remand in part.
All statutory citations refer to the 1994 Revised Statutes of Missouri. Section 610.021(2) authorizes closed meetings if the meeting relates to "[l]easing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration thereof."
The circuit court's order erroneously refers to § 610.023.
Fulton contends that the circuit court erred by finding that it violated the Open Meetings Law. It argues that it closed the executive sessions pursuant to § 610.021(2) because the discussions in the meetings involved the city's potential lease of the golf course land and because public knowledge of the project might have affected the consideration that Fulton would have to furnish to obtain the leasehold. We disagree.
Missouri's public policy favors open meetings. Section 610.011 provides that all public meetings shall be open to the public unless otherwise provided by law and that the law shall be liberally construed. The real estate exception set out in § 610.021(2) must be strictly construed to promote the state's public policy, § 610.011(1), and the burden is on the governmental body to show compliance with the Open Meetings Law, § 610.027(2).
The circuit court concluded that the city's executive sessions did not qualify for closure because:
[A]n examination of the records, and minutes of the closed meetings reveals that the purpose of these meetings was for the City Administrator to inform members of the City Council as to the progress of negotiations between the developers of the proposed golf course and the seller of said real estate, as well as to keep the council informed of the development of the project. These discussions simply do not qualify for closure under the exception "leasing, purchase or sale of real estate by a public governmental body." It is true that at some future date the defendants may become involved in a "lease type arrangement" to facilitate public financing of the project. This, however, does not appear to qualify for closure. It should also be noted that the exception permitting closure carries with it the further requirement "where public knowledge of the transaction might adversely affect the legal consideration therefor." There is no showing that public knowledge would adversely affect the legal consideration or the price of said real estate.
We agree.
The city held 13 closed meetings to discuss the proposed golf course project and cited § 610.021(2) as its justification for closing each meeting. Fulton argues that the minutes of the meetings make clear that the city contemplated and discussed the potential of leasing the golf course's land. In only one of the meetings, however, did the council discuss leasing land for the golf course. The minutes for the May 24, 1994, executive session say:
An investor group consisting of sport figures are interested in investing their cash in the community by building the golf course, leasing it to us for one year at a time, at the end of each year, we could walk away and not have to renew. Of course all profits would go to the investors. . . . [The Director of Administration] asked the council what their feelings were on this type of proposal. The council unanimously agreed to sit back, listen and proceed with studies.
Nothing in these minutes justifies a finding that public knowledge of the lease would adversely affect the consideration of the lease. In this meeting, the council was advised only of general offers by undisclosed parties. It did not discuss bargaining strategies.
In most of the remaining meetings, the council's discussions centered on a private party's plan to buy land in connection with the golf course project and using municipal bonds to finance the course's construction. These discussions did not concern the lease, purchase or sale of real estate by the city, but by a private party. Discussions of financing were not related to the lease, purchase or sale of real estate by the city, but were about public bond financing for the golf course development. We find no exception in § 610.021(2) for discussing public municipal bond financing of private developments or for public facilities. Although the city administrator and the city clerk testified that the city discussed the purchase or lease of the golf course during the closed meetings, the circuit court is the arbiter of witness credibility. Marro v. Daniels, 914 S.W.2d 16, 17 (Mo.App. 1995).
The city contends that because it was part of the overall plan for it to eventually lease the land for the golf course, any discussions about the golf course would "relate" to the leasing of the land as required by § 610.021(2). We disagree. To construe § 610.021(2) so broadly would go against § 610.011(1)'s directive that we must strictly construe exceptions to the Open Meetings Law. Hence, we conclude that the city's meetings and discussions were not subject to closure pursuant to § 610.021(2). The city's contention is without merit.
In its next point, the city contends that the circuit court erred in enjoining it from conducting future meetings in closed sessions and from closing future records regarding the golf course except as authorized by § 610.021. We agree.
Section 610.027 provides the remedies for violations of the Open Meetings Law. That section says that the remedies provided against public governmental bodies shall be in addition to those provided by any other provision of law. Spradlin contends that injunctive relief is a remedy provided by another provision of law.
As we held in Buckner v. Burnett, 908 S.W.2d 908, 911 (Mo.App. 1995), "[§] 610.027 does not provide for a remedy in the nature of an injunction, ordering public officials to comply with future requests. Indeed, public officials are already under that mandate by virtue of Chapter 610." This conclusion is further buttressed by the General Assembly's amendment of § 610.030 in 1982. Before 1982, circuit courts were given the jurisdiction to issue injunctions to enforce the provisions of § 610.010 to 610.030 and 610.100 to 610.115. In 1982, the general assembly amended § 610.030 to give the circuit courts jurisdiction to issue injunctions only to enforce the provisions of §§ 610.100 to 610.115. Hence, the circuit courts no longer had jurisdiction to issue injunctions to order compliance with § 610.021.
We recognize that this court's Eastern District did not make this distinction in MacLachlan v. McNary, 684 S.W.2d 534, (Mo.App. 1984). It apparently held, two years after the amendment to § 610.030, that the courts had the authority to enjoin a violation of all of Chapter 610. The court failed to acknowledge the General Assembly's 1982 amendment of § 610.030, which deleted "sections 610.010 to 610.030" from the statute.
Spradlin asserts that the circuit court's authority to issue the injunction emanated from § 526.030 which says, "The remedy by writ of injunction . . . shall exist in all cases . . . to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages." This general statute, however, applying to "all cases" is "trumped" by the more specific statute, § 610.030, which governs the use of injunctive relief in Chapter 610 cases. "A specific statute prevails over a general one." State ex rel. Fort Zumwalt School District v. Dickherber, 576 S.W.2d 532, 536 (Mo.banc 1979).
The circuit court, therefore, erred in enjoining the city from conducting future meetings in closed sessions and from closing future records regarding the golf course except as authorized by § 610.021. We remand to the circuit court for it to vacate its injunction order.
In his cross appeal, Spradlin contends that the circuit court erred in denying his request for attorney fees. He argues that § 610.027.3 does not require him to establish a purposeful violation of the Open Meetings Law to gain attorney fees, but, even if it did, he proved a purposeful violation by showing that the city intended its acts. In response, the city argues that because Spradlin does not contend that the circuit court abused its discretion in denying the request for attorney fees, we should reject his point.
Section 610.027.3 provides:
Upon a finding by a preponderance of the evidence that a member of a public governmental body has purposely violated sections 610.010 to 610.027, the member may be subject to a civil fine in the amount of not more than five hundred dollars and the court may order the payment by such member of all costs and reasonable attorney fees to any party successfully establishing a violation of sections 610.010 to 610.026.
We agree with the city that § 610.027.3 did not require the circuit court to award attorney fees but says that the court "may" award attorney fees. As noted by this court's Eastern District in D.K.B. v. Toelke, 903 S.W.2d 267, 269 (Mo.App. 1995), "§ 610.027.3, by its use of the term `may,' leaves imposition of its remedies to the discretion of the circuit court." At no time did Spradlin contend that the circuit court abused its discretion. Hence, we agree with the city that, even if we agreed with Spradlin's contentions on appeal concerning attorney fees, he needed to address the issue whether the circuit court abused its discretion.
However, even if Spradlin did contend that the circuit court abused its discretion, he would not prevail. "The Open Meetings Act authorizes the award of costs and reasonable attorneys' fees where the court finds a public governmental body has purposely violated the Act." Tipton v. Barton, 747 S.W.2d 325, 332 (Mo.App. 1988). Contrary to Spradlin's contention, a circuit court cannot award attorney fees unless it first finds that the governmental body purposely violated the Open Meetings Law. A violation of the act alone does not establish a purposeful violation.
Spradlin contends that even if § 610.027.3 required a purposeful violation to be entitled to attorney fees, we should require a plaintiff to show only that the governmental body intended to commit the acts which resulted in the violation and not that it intended to violate the statute. Section 610.027.3, however, requires the plaintiff to establish by a preponderance of the evidence that the governmental body "purposely violated sections 610.010 to 610.027" — not establish that the body violated §§ 610.010 to 610.027 by purposeful acts. Spradlin's contentions are without merit.
We, therefore, affirm the circuit court's judgment that Fulton violated the Open Meetings Law and its denial of Spradlin's request for attorney fees. We reverse, however, the circuit court's order enjoining the city from conducting future meetings in closed sessions and from closing future records regarding the golf course except as authorized by § 610.021 and remand with instructions that the circuit court vacate its injunction order.
Berrey, P.J., and Smart, J., concur.