Case: 44CH1:14-cv-00716-KMB

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IN THE CHANCERY COURT OF LOWNDES COUNTY, MISSISSIPPI

ROBERT N. GREGORY
VS.

COMPLAINANT/APPELLEE
CAUSE NO. 1:14-CV-00716-KMB

MAYOR AND CITY COUNCIL,

CITY OF COLUMBUS

RESPONDENTS/APPELLANTS

OPINION AND JUDGMENT

This case is an appeal by the Mayor and City Council of the City of
Columbus, Mississippi (the City or Columbus) from a decision of the
Mississippi Ethics Commission (MEC or the Commission). The Commission
held that the City had violated the Open Meetings Act (the Act).
I. SUMMARY OF PROCEEDINGS
Robert Nathan Gregory (Mr. Gregory or Nathan Gregory) filed a
Complaint with the MEC on March 3, 2014 requesting a ruling that certain closed
meetings of the Mayor and various sub-quorum groups of Council members
were required to be open under the Act. The City responded to the Complaint.
A hearing officer made a Preliminary Report and Recommendation suggesting

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that the Commission rule that the meetings in question violated the Act. The
City objected to the report and requested a hearing before the Commission. The
Mississippi Municipal League filed a brief supporting the Citys position. The
Commission held non-evidentiary hearings and heard oral argument on
November 7 and December 5, 2014. On December 5, 2014, the Commission
issued a Final Order ruling in favor of Mr. Gregory holding that the meetings in
question violated the Act. (Excerpt from Doc. #3).
The City timely filed its Notice of Appeal in this Court on December 9,
2014. (Doc. #2)

The Administrative Record in this case was filed by the

Commission on January 23, 2015. (Doc. #3)

On July 17, 2015, the Ethics

Commission moved to intervene. (Doc. #5) The Court denied the intervention
by Order dated November 4, 2015. (Doc. #11) The City filed its Brief on January
23, 2016.
On February 12, 2016, the Commission moved for leave to file Brief of
Amicus Curiae and that motion was denied by Order dated May 13, 2016.
II. FACTS
The facts are not disputed and are contained in the Commissions final
order. The facts are:
1) The City of Columbus is a special charter city whose governing
body consists of six Councilmen and a Mayor. The Mayor has the
authority to vote only when a quorum of the City Council is present
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and the Council's vote results in a tie. A quorum of the City Council
consists of four members of the Council.
2) The complaint alleges that the Mayor for the City of Columbus has
organized several "meetings" consisting of three or fewer
Councilmen (i.e., less than a quorum) at a time behind closed doors
during which policy has been discussed. In their response, the
Council argues the Open Meetings Act does not prohibit nonquorum meetings of the City Council. The Council asserts that
because less than a majority of the 6 members is not a quorum
there has not been a meeting of the public body at which official acts
may be taken. In support of this argument, the Council cites Section
25-41-3, Miss. Code of 1972, as well as two opinions issued by the
Attorney General and two decisions issued by the Ethics
Commission.
3) The "meetings" at issue in this case involve matters that routinely
come before the governing authority of a municipality - economic
development and maintenance of public buildings. These meetings
are grouped by subject-matter and discussed in more detail below.
A. MEETINGS CONCERNING ECONOMIC DEVELOPMENT.
The first "meetings" identified by the complainant occurred on
January 23, 2014. On this date, City officials met with officials with
the Golden Triangle Development Link (the Link) to discuss the
City's continued use of the Link for economic development services,
including retail recruitment services. The complaint alleges the City
Council split into two groups of three (less than a quorum of the
council) and "[i]n a pair of separate meetings, [the Mayor] and three
Council members met with [a Link official] to discuss the future of
retail development in the City." After these meetings, the Link
announced it would no longer be providing certain economic
development services to the City.
Similar closed meetings were allegedly conducted between
the Council and Link representatives on February 3, 2014 and
February 24, 2014. Again, it is alleged that the Mayor conducted
meetings on each of these dates "with Councilmen in two groups of
three . . . to discuss the future of retail development . . . : The
complaint alleges that after the February 24, 2014 meeting, the Link
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and the City announced that they "decided to renew their retail
development partnership." Several official meetings of the City
Council during this time period involved discussion of retail
development within the City.
B. MEETINGS CONCERNING MAINTENANCE OF A PUBLIC BUILDING.
The complainant also identified a "meeting" that occurred on
February 27, 2014. On this date, the Mayor allegedly conducted two
separate meetings with Councilmen to discuss the renovation of a
public building. Like the meetings discussed above, less than a
quorum of the City Council attended each of these meetings. In the
first meeting, the Mayor, an architect, a construction company
project manager, and two City employees met with two Councilmen
to discuss plans for renovation of the building. In the second
meeting, three other Councilmen attended the meeting with the
Mayor and the other people identified above. These meetings were
prearranged and took place in the Mayor's conference room at City
Hall. The complainant requested access to these meetings, which
was denied by the Mayor.
The City admits that the meetings took place but claims that the
occurrences were gatherings for the sharing of information that would
ultimately be presented to the Council at a public meeting for official action.
Significant to the Court is that the City admits that the Mayor and other officials
met with a quorum of the Council on the days in question but divided into groups
with less than a quorum of the Council so the public could be excluded.
Mr. Gregory was excluded from these meetings or gatherings, as well as the
general public.

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III.

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STANDARD OF REVIEW

In making its decision, the Court has made a de novo review of both the
facts and the law.
IV.

SUMMARY OF THE CITYS ARGUMENT

The Citys Brief is Document #12 in this Courts file. The City makes three
arguments in support of reversal. Arguments A and C are similar and, in this
Opinion, are addressed together.
A. THE COMMISSIONS RULING CONTRAVENES THE PLAIN LANGUAGE OF
THE ACT.
and
C. THE COMMISSIONS RULING WAS BASED ON ERRONEOUS STATUTORY
CONSTRUCTION AND MISINTERPRETATION OF COURT DECISIONS.
In essence, the City says in these arguments because the gatherings
in question were not meetings of a public body as the statute defines, there
was no requirement that the public be allowed to attend and there was no
violation of the Act. The purpose of these meetings was given by the City in its
Brief before the Commission. The City said, The purpose of these gatherings
was for the sharing of information that would ultimately be presented to the
Council and public in a meeting for official action. The City admitted that the
Mayor and other officials met with the quorum of the Council on the days in
question but split into groups of less than a quorum so that the public would be
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excluded. The Open Meetings Act (the Act)1 provides that public business
[is] performed in an open and public manner and that the citizens [are] advised
of and . . . aware of the performance of public officials and the deliberations and
decisions that go into making of public policy. . . .2 The Act further provides
that the formation and determination of public policy is public business and
shall be conducted at open meetings, except as otherwise provided [in the Act]
if an executive session is declared. Id. Section 25-41-1 specifically refers to
Section 25-41-7, which governs executive sessions for 12 limited issues.

specific procedure must be followed by the governing body to go into executive

session. Our Supreme Court has recognized the legislative intent of the Act. In a
1989 decision3, the Supreme Court instructed public boards and commissions as
follows:
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.
This Court believes that the spirit of the Act is important.

Miss. Code Ann. Title 25, Chapter 41.

Miss. Code Ann. 25-41-1.
3 Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So. 2d 107, 110
(Miss. 1989).
1
2

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The City cites the Gannett4 case in support of its position. The Court
does not believe that this opinion supports the City.

The Supreme Court

specifically said:
Closer examination of our prior interpretation of
Section 25-41-7(4) shows that official acts includes
action relating to formation and determination of public
policy, but excludes purely social functions. [citation
omitted]
It cannot be said and the City does not seriously argue that the
meetings in question were social functions. As stated in the Courts Findings of
Fact, the first meeting complained of occurred on January 23, 2014 when the City
officials met with the Golden Triangle Development Link to discuss the Citys
continued use of the Link for economic development services. Other meetings
were held on February 3, 2014 and February 24, 2014.

The Court believes

economic development is of interest to the public. Another meeting was held on

February 27, 2014 to discuss renovation of a public building. Like the first
meetings, less than a quorum of the Council attended. In this meeting, the Mayor,
an architect, a construction company project manager, and two City employees
met with two Council members to discuss plans for renovation of the building.
In the second meeting, three other Council members attended the meeting with

Gannett River States Pub. Corp., Inc. v. City of Jackson, 866 So. 2d 462 (Miss. 2004).

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the Mayor and the same consultants. Both meetings were pre-arranged and took
place in the Mayors conference room.
The Supreme Court construed the Open Meetings Act in the Board of
Trustees5 case. In this case, the State College Board held a luncheon with college
students and a separate informal gathering with college executives. The Trustees
argued that these were not public meetings because the College Board would not
take official action during their informal meetings. The Supreme Court rejected
this argument and stated:
The expressed legislative declaration of 25-41-1 (Supp.
1982) answers the question:
It being essential to the fundamental philosophy
of the American constitutional form of
representative
government
and
to
the
maintenance of a democratic society that public
business be performed in an open and public
manner, and that citizens be advised of and be
aware of the performance of public officials and
the deliberations and decisions that go into the
making of public policy, it is hereby declared to
be the policy of the State of Mississippi that the
formation and determination of public policy is
public business and shall be conducted at open
meetings except as otherwise provided herein.
Under authority of this declared legislative intent, this
Court holds that all the deliberative stages of the
decision-making process that lead to formation and

Bd. of Trustees of State Insts. of Higher Learning v. Miss. Publishers Corp., 478 So. 2d 269, 278 (Miss.
1985).
5

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determination of public policy are required to be open

to the public.
The Court finds persuasive a decision made by the United States
District Court for the Northern District of Mississippi. 6 Just as in this case,
several members of the Board of Aldermen for the City of Starkville met behind
closed doors to discuss termination of the Police Chief. Four aldermen constitute
a quorum of the Board in Starkville. Three aldermen met with other city officials.
After the meeting, the fourth alderman was contacted by telephone and,
therefore, a quorum of the Board had never been physically present.
Judge Davidson said:
Although the group numbered a total of five, only three
aldermen were in actual attendance; the meeting was
deliberately limited to three, a figure less than the
number needed for a quorum, so as to avoid committing
a violation of the open meetings policy.
....
The underhanded methods employed by defendants to
strip Plaintiff of his powers were so contrary to
established and accepted procedure for conducting
public matters that they carry the shock value inherent
in a substantive due process violation. Defendants may
have believed that by limiting their aldermanic
numbers to less than a quorum, they were cleverly
adhering to the letter of the law, namely, the Mississippi
Open Meetings Act, Miss. Code Ann. 25-41-1, et seq.
(1991). These attempts to prove technical compliance
are insufficient to justify actions violating the spirit of
the law.
6

Maxey v. Smith, 823 F. Supp. 1321 (N.D. Miss. 1993).

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The public and Mr. Gregory should have been allowed access to the
meetings held by the Mayor and City Councilmen for the City of Columbus. The
Commissions ruling does not contravene the plain language of the Act, nor was
it based on erroneous statutory construction or misinterpretation of court
decisions.
B. THE COMMISSIONS RULING IS CONTRARY TO ITS OWN PRIOR DECISIONS
AND OPINIONS OF THE ATTORNEY GENERAL.
In this argument, the City contends that the Commissions ruling in
this case conflicts with at least two of its opinions and three opinions given by
the Attorney Generals office.
The first Ethics Opinion7 is the Griffin opinion. The Griffin opinion
addressed the issue of whether the Board of Mayor and Aldermen of Crystal
Springs held secret advance non-quorum meetings. When the City of Crystal
Springs responded to the Complaint, sworn affidavits were given by the Board of
Aldermen, which in essence stated that none of the Board met and privately
discussed the impending vote on the beer ordinance.

The basis of the

Commission ruling in that case was that there was no evidence presented to
support the allegations of the Complaint.

John Griffin v. Bd. of Mayor and Aldermen, City of Crystal Springs, Case no. M-10-012 (Nov. 5,
2010).
7

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In the Mason case, an impromptu meeting was held with some

aldermen present and the Mayor and Vice Mayor concerning whether to
suspend an employee. The meeting was not pre-arranged like the meetings in
this case by Columbus.

The meetings held by Columbus in this case were

specifically held with a non-quorum present to avoid the consequences of the

Open Meetings Act. The discussions not open to the public led to official action
by the Columbus quorum when they met.
The City offers three Attorney Generals Opinions in support of its
position.8 In these three Opinions, the Attorney General strongly advised the
individuals who attended these meetings to consider the Mississippi Supreme
Court admonitions in Common Cause.9 The philosophy of the Open Meetings Act
is that:
All deliberations, decisions and business of all
government
boards
and
commissions,
unless
specifically excluded by statute, shall be open to the
public.
These Opinions, which are not binding on this Court, do not support
the Citys position that a Mayor and Council may avoid the requirements of the

Opinion No. 1999-0126 (Chamberlin), 1999 WL 325697 (April 19, 1999); Opinion No. 2004-0537
(Cook), 2004 WL 3015445 (Nov. 5, 2004); and Opinion No. 2013-0499 (Jones), 2014 WL 581499
(Jan. 10, 2014).
9 Hinds. Co. Bd. of Supervisors v. Common Cause of Miss., 551 So. 2d 107 (Miss. 1989).
8

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Open Meetings Act when they purposely divide into two non-quorUlU. groups
and meet separately to have similar discussions concerning the City's business.
The Court has carefully considered the Ethics Commission's
opinions, as well as those of the Attorney General. The Court does not read these
opinions as supporting the City's proposition that it can purposely separate into
two small groups in order to circumvent the Ac t.

v. CONCLUSION
For the reasons given above, this Court affirms the Final Order of
the Commission.
DATED, this the 24 th day of May, 2016.

leu

Y.M

G1-

KENNETH M. BURNS, CHANCELLOR

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