Summary
holding that "the term ‘body politic’ connotes a body acting as a government; i.e., exercising powers which pertain exclusively to a government, as distinguished from those possessed also by a private individual or a private association"
Summary of this case from DiCesare v. Charlotte-Mecklenburg Hosp. AutuhorityOpinion
No. 16
Filed 15 December 1977
1. State 1.5 — Open Meetings Law — notice of meetings Even if the Open Meetings Law, G.S. 143-318.1 et seq., applies to meetings of the faculty of the University of North Carolina School of Law, the trial court erred in ordering the Dean of the School of Law to cause a notice to be given to the public of meetings of the faculty, or of its various committees, since the Open Meetings Law contains no provision requiring any body to give to the public notice of any meeting.
2. State 1.5 — Open Meetings Law — faculty of U.N.C. Law School For its meetings to fall within the scope of the Open Meetings Law, the faculty of the University of North Carolina School of Law must (1) be a component part of a "governing and governmental" body of the State, and (2) must "have or claim authority to conduct hearings, deliberate or act" as a "body politic."
3. State 1.5 — Open Meetings Law — meaning of "body politic" As used in G.S. 143-318.2, the term "body politic" connotes a body acting as a government; i.e., exercising powers which pertain exclusively to a government, as distinguished from those possessed also by a private individual or a private association.
4. State 1.5 — Open Meetings Law — strict construction of "governing and governmental bodies" The language of G.S. 143-318.2 extending its reach to meetings of commissions, subdivisions and component parts of "governing and governmental bodies of this State" which "act as bodies politic" is designed to be restrictive, rather than broadening, and shows an intent of the Legislature to limit the Open Meetings Law to meetings of "governing and governmental bodies" strictly construed.
5. State 1.5 — Open Meetings Law — meaning of "governing body" The "governing body" of an institution, organization or territory ordinarily means the body which has the ultimate power to determine its policies and control its activities, and such body's delegation of authority to an employee or group of employees to make, initially, such decisions does not render such employee or group of employees the "governing body" so long as his or its determinations are subject to review and reversal by the higher authority.
6. State 1.5 — Open Meetings Law — inapplicability to faculty of U.N.C. Law School The Open Meetings Law, G.S. 143-318.2, does not apply to meetings of the faculty of the University of North Carolina School of Law because (1) the Board of Governors of the University of North Carolina, not the faculty of the School of Law, is the "governing body" of the School of Law since the Board has the power to modify or reverse decisions of the faculty; (2) the faculty is not a "subsidiary or component" part of the Board of Governors but is simply a group of employees of the Board; (3) the faculty does not act as a "body politic"; and (4) the Board of Governors is not, itself, a "governmental body" of this State since the operation of an educational institution is not a governmental activity and the Board has no powers peculiar to the sovereign.
APPEAL by defendants from the decision of the Court of Appeals, reported in 32 N.C. App. 530, 232 S.E.2d 855, Hedrick, J., dissenting, in which the Court of Appeals affirmed Preston, J., who, at the 18 June Session of ORANGE, granted a permanent injunction.
Rufus L. Edmisten, Attorney General, by Andrew A. Vanore, Jr., Senior Deputy Attorney General, for Defendant Appellants.
Loflin Loflin by Thomas F. Loflin III and Carolyn McAllaster for Plaintiff Appellees.
Chief Justice SHARP concurs in the result.
Justice EXUM dissenting.
The facts are not is dispute. The individual plaintiffs are students enrolled in the School of Law of the University of North Carolina at Chapel Hill. The Board of Governors of the Student Bar Association is composed of duly elected representatives of the student body of the School of Law. On 27 February 1976, the faculty of the School of Law met in a general faculty meeting. The individual plaintiffs and others attempted to attend the meeting and were refused admission by the Dean although no vote had been taken by the faculty for the holding of an executive session. The record does not disclose the matters upon which the faculty deliberated or as to which it reached decisions at the meeting. The plaintiffs, contending that Chapter 143, Article 33B, of the General Statutes, generally known as the Open Meetings Law, applies to meetings of the faculty of the School of Law, instituted this action on behalf of themselves and all members of the class whom they represent (alleged by them to be "all members of the public") to enjoin the defendants, and all persons acting in concert with them, "from closing, or allowing to be closed, the official meetings of the faculty of the School of Law of the University of North Carolina at Chapel Hill, and official committee meetings of said faculty, to members of the public."
Judge Preston entered an order directing the defendants to show cause why a preliminary injunction, as requested by the plaintiffs, should not be entered. Pursuant to this order, a hearing was had at which Judge Preston received evidence, heard arguments of counsel, made findings of fact and conclusions of law. Upon these, a preliminary injunction was entered, which was made permanent when the court was advised by counsel for both parties that neither desired to introduce further evidence. By this judgment, the defendants have been permanently enjoined from holding, or permitting to be held, "any meeting, assembling, or gathering together at any time or place of the faculty of the School of Law of the University of North Carolina at Chapel Hill or any of said faculty's committees or subcommittees, for the purpose of conducting hearings, deliberating, voting, or otherwise transacting any business of the said faculty, or any of its committees or subcommittees, except in conformity with the provisions of Chapter 143, Article 33B, of the General Statutes of North Carolina." The judgment further directs Dean Byrd to "cause a notice to be given to the public of every official meeting of the general faculty of the School of Law * * * and of its committees and subcommittees, at least six hours in advance of each such meeting" by posting a written notice of the time and place thereof upon official bulletin boards located within the School of Law.
Preliminarily, it was error for the trial court to order the Dean of the School of Law to cause a notice to be given to the public of meetings of the faculty, or of its various committees and subcommittees. The Open Meetings Law, G.S. 143-318.1 to G.S. 143-318.6, contains no provision requiring any body to give to the public notice of any meeting. All that law requires of bodies, to which it is applicable, is that the meetings of any such body be open to the public. The body is not required to send invitations to anyone, or to notify individual members of the public, or the public at large, of the time and place of any meeting held by it for any purpose. The order, as entered in the Superior Court, would prevent a called meeting of the faculty for at least six hours after the need therefor was determined, regardless of the urgency or simplicity of the problem requiring faculty action. Apparently, this portion of the order of the trial court derives from a similar requirement in an order entered by the Chancery Court of Tennessee on March 31, 1976 in the case of Fain v. Faculty of the College of Law of the University of Tennessee. The Nebraska Open Meetings Law expressly requires such notice. See: State ex rel Medlin v. Choat, 187 Neb. 689, 193 N.W.2d 739 (1972). Since there is no comparable provision in the Open Meetings Law of this State, if it were otherwise free from error, the judgment of the Superior Court would have to be modified to delete this provision requiring the giving of notice.
We turn now to the question of whether the Open Meetings Law applies to meetings of the faculty of the School of Law of the University of North Carolina at Chapel Hill. The controlling provision is in G.S. 143-318.2, which reads:
"All official meetings of the governing and governmental bodies of this State * * * including all State * * * commissions, committees, boards, authorities, and councils, and any subdivision, subcommittee, or other subsidiary or component part thereof which have or claim authority to conduct hearings, deliberate or act as bodies politic and in the public interest shall be open to the public."
The constitutional validity of this Act is not before us. We are here concerned only with its meaning and, more specifically with its applicability to a meeting of the faculty of a state-owned educational institution and meetings of committees and subdivisions of such faculty. The wisdom or lack of wisdom, practicability or impracticability of its provisions are matters for the Legislature, not the courts once the meaning of its provisions is judicially determined. Fain v. Faculty of the College of Law of the University of Tennessee, supra. However, a court may legitimately consider consequences to be anticipated from the respective possible constructions of a statute in determining which of these the Legislature most probably had in mind when it enacted the statute.
So far as the right of nonmembers of the faculty to attend faculty meetings is concerned, the statute affords no basis for distinguishing between enrolled students in the School of Law, rejected applicants for admission, prospective applicants for admission, employees of or students in rival law schools in the State, or other members of the public seeking only a warm shelter on a cold winter's day.
While matters likely to be presented to their meetings will differ in nature, the statute affords no basis for distinction between the faculty of the School of Law, the faculty of the English Department, the Athletic Department or the football coaching staff, the faculty of a public elementary school or of a public kindergarten. It would, in all probability, create substantial consternation in the headquarters of the Athletic Department of the University at Chapel Hill if a rival school's coach appeared and demanded admission to a conference of the University's football coaching staff called to consider strategy to be pursued in a forthcoming contest with the team of such other institution, or a meeting of a subcommittee called to discuss the qualifications of prospects for recruitment for next year's team. We fail to find in G.S. 143-318.3 any ground for the denial of such demand if G.S. 143-318.2 is applicable.
The brief for the defendants directs our attention to the Family Educational Rights and Privacy Act, enacted by the Congress of the United States in 1974, commonly called the Buckley Amendment, 20 USCA, 1232(g)(b)(d) which provides, "No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records (or personally identifiable information contained therein other than directory information)" concerning a student without his consent. The brief for the defendants suggests that such information may well be the subject of discussion in a meeting of the faculty or any of its committees, and since the Buckley Amendment is part of the Supreme Law of the Land, pursuant to Article VI, section 2, of the Constitution of the United States, it controls the Open Meetings Law. This argument is not, however, determinative of the present appeal. The Buckley Amendment does not forbid such disclosure of information concerning a student and, therefore, does not forbid opening to the public a faculty meeting at which such matters are discussed. The Buckley Amendment simply cuts off Federal funds, otherwise available to an educational institution which has a policy or practice of permitting the release of such information. Thus, if the Open Meetings Law applies to a meeting of the faculty of the School of Law at which such matters are discussed, the right of the public to attend such meeting would continue. Only the availability of Federal funds in aid of the institution would be affected. Of course, a violation of the Buckley Amendment could well result, not only in termination of any otherwise available Federal financial aid to the School of Law but also in the termination of any such aid to the entire University.
Since the Buckley Amendment was enacted by Congress after the Open Meetings Law was enacted by the North Carolina Legislature, it sheds no light upon what the North Carolina Legislature had in mind when it enacted the Open Meetings Law. However, the possibility that all further Federal financial aid to the entire University of North Carolina, including all its component institutions, may be jeopardized by an interpretation of the Open Meetings Law making it applicable to meetings of the faculty of the School of Law is an additional reason for care in so construing the Open Meetings Law.
The only meetings required by G.S. 143-318.2 to be open to the public are official meetings of the "governing and governmental bodies of this State and its political subdivisions," including specified types of "subsidiary or component" parts of such bodies. (Emphasis added.)
Obviously, the faculty of the School of Law is a "component part" of the University of North Carolina at Chapel Hill. This alone does not bring its meetings within the scope of G.S. 143-318.2. For its meetings to fall within the scope of the Open Meetings Law, the faculty of the School of Law must (1) be a component part of a "governing and governmental" body of the State (emphasis added), and (2) the faculty must "have or claim authority to conduct hearings, deliberate or act" as a "body politic." Nothing in the record before us, including the uncontroverted facts found by the trial court, suggests that the faculty of the School of Law of the University of North Carolina at Chapel Hill acts upon different types of matters, or through different procedures, or in any different manner, than does the faculty of any other school of law, including the three schools of law presently operated in this State by privately endowed and operated educational institutions.
Webster's New International Dictionary, 2nd Edition, defines "body politic" as "a group organized for government; now usually specif.: a. a state * * * * b. an organized society, as in a church." In Ballentine's Law Dictionary, the term "body politic" is thus defined: "The term is aptly defined in the preamble of the state constitution of Massachusetts as a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This definition was quoted with approval by the Supreme Court of the United States in Munn v. Illinois, 94 U.S. 113, 124, 24 L.Ed. 77, 84 (1876), and by this Court in Durham v. Cotton Mills, 141 N.C. 615, 642, 54 S.E. 453 (1906). Ballentine's Law Dictionary defines the related term "body politic and corporate" as "A term often applied to a municipal corporation" and says, "A county is such a body." In 11 C.J.S., p. 380, the term "body politic" is interpreted as follows:
"A term of ancient origin, the collective body of a nation or state as politically organized, or as exercising political functions; the state or nation as an organized political body of people collectively; a corporation, a body to take in succession, framed as to its capacity by policy. It has been said that the phrase connotes simply a group or body or citizens organized for the purpose of exercising governmental functions; that such a group may be large or small, and that it may be a group within a group, including counties even though they are but agencies of the state. It may be formed by a voluntary association of individuals, and is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. Where the term is used as referring to the state, it signifies the state in its sovereign, corporate capacity, and applies to a body incorporated by the state and charged with the performance of a public duty, such as an institution of learning for the benefit of the people of a particular parish, or a corporate body created for the sole purpose of performing one or more municipal functions, or an incorporated board of trustees of a levee district, or a township declared by statute to be a body politic and incorporate. Also, it applies to the United States as a body capable of attaining the objects for which it was created, by the means which are necessary for their attainment."
Corpus Juris Secundum cites as authorities for these various applications of the term "body politic" numerous cases. The only one of these indicating that the term "body politic" extends to "an institution of learning" is School Board of Caldwell Parish v. Meredith, 139 La. 35, 71 So. 209 (1916).
Speaking of the term "body politic and corporate," the Supreme Court of Nebraska, in Lindburg v. Bennett, 117 Neb. 66, 219 N.W. 851 (1928), said that the term, as applied to a county, is conjunctive rather than disjunctive, and, therefore, it cannot be said that when the members of the county board deal with governmental matters they are acting as agents of the county in exercising its functions as a body politic, but when they deal with other matters they are exercising its functions as a body corporate.
[3, 4] We think it evident that, as used in G.S. 143-318.2, the term "body politic" connotes a body acting as a government; i.e., exercising powers which pertain exclusively to a government, as distinguished from those possessed also by a private individual or a private association. Thus, the language of this statute, extending its reach to meetings of commissions, subdivisions and component parts of "governing and governmental bodies of this State" which "act as bodies politic," is designed to be restrictive, rather than broadening, and shows an intent of the Legislature to limit the Open Meetings Law to meetings of "governing and governmental bodies" strictly construed. (Emphasis added.)
The statute uses the term "governing" and the term "governmental" in the conjunctive, not the disjunctive relation. Thus, the body to which this statute applies must be both a "governing" body and a "governmental" body. Is the faculty of the School of Law of the University of North Carolina at Chapel Hill such a body? If not, is it a component part of such a body which, itself, acts as a "body politic"?
In ordinary speech, the "governing body" of an institution, organization or territory means the body which has the ultimate power to determine its policies and control its activities. Such body may delegate to an employee or group of employees authority to make, initially, such decisions, but such employee or group of employees is not the "governing body" so long as his or its determinations are subject to review and reversal by the higher authority, by whose permission such determination is made.
G.S. 116-11(2) vests in the Board of Governors of the University of North Carolina "the general determination, control, supervision, management and governance" of all the affairs of all of the sixteen constituent institutions of the University, including the University of North Carolina at Chapel Hill, of which the School of Law is a part. The faculty of the School of Law are employees of the Board of Governors, authorized by that Board to make certain determinations with reference to the day-to-day operation of the School of Law, but all such determinations by the faculty are subject to the power of the Board of Governors to modify or reverse them. The fact that such superior power is rarely used by the holder of it does not abrogate it. Thus, the faculty of the School of Law is not the "governing body" of the School of Law. The "governing body" is the Board of Governors.
The plaintiffs rely upon the decision of the Chancery Court of Tennessee in Fain v. Faculty of the College of Law of the University of Tennessee, supra, holding the Open Meetings Act of Tennessee applicable to meetings of the faculty of the College of Law of the University of Tennessee. As shown, however, in that decision and also in the decision of the Supreme Court of Tennessee in Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976), the Tennessee law, unlike our statute, defines "governing body" to mean "the members of any public body * * * with the authority to make decisions for or recommendations to a public body on policy or administration." Such statutory definition would, of course, prevail over the ordinary meaning of the word "governing." Moreover, the Fain Case was reversed on appeal, the Tennessee Court of Appeals holding the faculty of the School of Law is not a governing body. 552 S.W.2d 752 (1957).
The faculty of the School of Law is not a "subsidiary or component part" of the Board of Governors, but is simply a group of employees of the Board. Furthermore, the faculty does not act as a "body politic."
If the faculty of the School of Law were a component part of the Board of Governors, the "governing" body of the School, and if it did deliberate and act as a "body politic," that would not make its meetings subject to the North Carolina Open Meetings Law (G.S. 143-318.2) unless the Board of Governors is, in addition to being the "governing" body of the School of Law, also a "governmental" body within the meaning of this Act.
A "governmental body" is one which has at least some of the powers of government. These are powers which are the attributes of sovereignty. They are not possessed by individuals and private associations, as a matter of natural right, and may not be exercised by them unless granted to them by the sovereign. Such powers include, for example, the power to tax, to appropriate public money, to adjudicate controversies, to maintain a police force, to fix and determine rights in property and procedure for its conveyance, to regulate commerce and industry, to condemn private property for public use, to declare specified conduct unlawful and to impose criminal sanctions for engaging therein and to legislate generally for the public welfare.
A "governmental body" may also exercise nongovernmental powers. These are powers which individuals and private associations may also exercise, as a matter of natural right in the silence of the sovereign. The establishment, maintenance and operation of an educational institution is such a nongovernmental activity. It may be, habitually has been and now is being engaged in by individuals and private associations in this State, including the operation of schools of law. Thus, while a "governmental body" may establish and operate an educational institution, that is not a governmental power and a body which has no other power is not a "governmental body."
The Board of Governors of the University of North Carolina operates the educational institutions comprising the University and has the power to do all acts incidental thereto, but so does the "governing body" of a privately endowed and operated university. The Board of Governors of the University of North Carolina has no governmental powers; i.e., no powers peculiar to the sovereign. G.S. 116-11. Therefore, the Board of Governors is not, itself, a "governmental body of this State," and G.S. 143-318.2 does not extend to the meetings of its employees, even though such employees be deemed a "component part" of the Board of Governors. Consequently, G.S. 143-318.2 does not require that meetings of the faculty of the School of Law of the University of North Carolina be open to the public and the granting of the injunction by the Superior Court in this action was error.
Our decision does not, in any way, affect or diminish the right of students enrolled in the School of Law, or any other person interested in its operation, to attend a meeting of the faculty of the School of Law, with the permission of the faculty, in order to present to the faculty requests and recommendations for faculty action.
We are not unmindful of the fact that G.S. 143-318.3(b) contains this statement:
"Nor shall this Article be construed to prevent any board of education or governing body of any public educational institution, or any committee or officer thereof, from hearing, considering and deciding disciplinary cases involving students in closed session."
The purpose of this provision was simply to remove any possibility that a board of education, a governing body of a public educational institution or a court could believe the Open Meetings Law requires a public hearing of such disciplinary matters. The provision does not extend the scope of G.S. 143-318.2 beyond meetings of "governing and governmental bodies of this State and its political subdivisions."
Again, G.S. 143-318.3(c) expressly authorizes a "board of education" when faced with a riot, or conditions indicating that a riot or public disorders are imminent, to meet in private session with law enforcement officers and others invited to such meeting for the purpose of considering and taking appropriate action. This provision was inserted out of an abundance of caution so as to prevent members of such board from being afraid to act promptly in such emergency. It, too, does not indicate legislative intent to broaden the scope of G.S. 143-318.2.
All of the Open Meetings Laws of the several states, which have come to our attention, vary widely in their terms and so decisions from the courts of those states establishing their scope are of meagre assistance in construing the North Carolina Act.
In Scott McLarty v. Board of Regents of the University of Georgia, 231 Ga. 22, 200 S.E.2d 117 (1973), the Georgia "Sunshine Law" was held not to apply to meetings of a faculty-student committee appointed to make recommendations to the Dean of Student Affairs concerning allocation of revenues received from mandatory student fees for student activities. The statute provided meetings of any State agency "at which official actions are taken" must be open to the public. The Supreme Court of Georgia said:
"Official action is action which is taken by virtue of power granted by law, or by virtue of the office held, to act for and in behalf of the State. The `Sunshine Law' does not encompass the innumerable groups which are organized and meet for the purpose of collecting information, making recommendations and rendering advice but which have no authority to make governmental decisions and act for the State."
The plaintiffs rely upon Cathcart v. Andersen, 85 Wn.2d 102, 530 P.2d 313 (1975), which held the Open Meetings Law of the State of Washington applicable to meetings of the faculty of the School of Law of the University of Washington. That case is readily distinguishable by reason of substantial differences between Washington's Open Meetings Law and ours. The Washington statute requires, "All meetings of the governing body of a public agency shall be open and public." (Emphasis added.) It defines "public agency" to mean "any state board * * * educational institution or other state agency which is created by or pursuant to statute, other than courts and the legislature." (Emphasis added.) It defines "governing body" as "[T]he multimember board, commission, committee, council or other policy or rule-making body of a public agency." A further statute of the State of Washington provided, "The faculty of the University of Washington * * * shall have charge of the immediate government of the institution under such rules as may be prescribed by the board of regents." The Supreme Court of Washington held that the faculty of the School of Law of the University of Washington must be considered a "`governing body', which is to say that it is a `policy' or `rule-making body.'" We do not consider this decision persuasive upon the question of the proper construction of the North Carolina statute.
The Nebraska Open Meetings Law involved in State ex rel Medlin v. Choat, 187 Neb. 689, 193 N.W.2d 739 (1972), since replaced, was also much broader in scope than ours, requiring the opening to the public of all meetings of "governing bodies of all agencies, now or hereafter created * * * pursuant to law, of the Executive Department of the State of Nebraska * * * or any other administrative agencies, whether advisory or executive, of the State of Nebraska * * * exercising legislative, executive or administrative powers, or supported in whole or in part by public funds, or entrusted with powers of recommending the expenditure of, or actually expending, public funds." (Emphasis added.) Nevertheless, the Supreme Court of Nebraska in State ex rel Medlin v. Choat, supra, held the Nebraska law did not apply to a meeting of a school district reorganization committee because it was not a "governing body."
The case of Raton Public Service Co. v. Hobbes, 76 N.M. 535, 417 P.2d 32 (1966), is also distinguishable from the present case. The New Mexico Supreme Court said that the New Mexico Open Meetings Law, then in effect, was captioned "An Act relating to public meetings of all governing bodies of the state which are supported by public funds." (Emphasis added.) The Supreme Court of New Mexico there held a public service company, all of the stock of which was held by trustees for the benefit of the City of Raton and all the revenues of which, after the payment of operating and maintenance expenses, were payable to the City Treasury for general city purposes, was "supported by public funds" and, therefore, its meetings were required by the statute to be open to the public. The New Mexico statute was obviously broader in scope than in the North Carolina Open Meetings Law.
The decision of the Court of Appeals is, therefore, reversed and the injunction issued by the Superior Court of Orange County is vacated.
Reversed.
Chief Justice SHARP concurs in the result.