IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI. No CA APPEAL FROM THE CHANCERY COURT OF LOWNDES COUNTY, MISSISSIPPI BRIEF OF APPELLANTS

E-Filed Document Dec 9 2016 16:39:22 2016-CC-00897 Pages: 55 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No. 2016-CA-00897 MAYOR AND CITY COUNCIL, CITY OF COLUMBUS APPELLANTS VS. ROBERT N. GREGORY APPELLEE APPEAL FROM THE CHANCERY COURT OF LOWNDES COUNTY, MISSISSIPPI BRIEF OF APPELLANTS ORAL ARGUMENT NOT REQUESTED JEFFREY J. TURNAGE MICHAEL CHASE MITCHELL, MCNUTT & SAMS 215 FIFTH STREET NORTH P. O. BOX 1366 COLUMBUS, MS 39703-1366 (662) 328-2316 (662) 328-8035 (facsimile) jturnage@mitchellmcnutt.com mchase@mitchellmcnutt.com

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii STATEMENT OF ISSUES... 1 STATEMENT OF ASSIGNMENT... 1 STATEMENT OF THE CASE Course of Proceedings and Disposition in the Court Below... 2 Statement of Facts... 3 SUMMARY OF THE ARGUMENT... 6 ARGUMENT I. STANDARD OF REVIEW...9 II. UNDER THE PLAIN TERMS OF THE OPEN MEETINGS ACT, THE GATHERINGS IN QUESTION DID NOT CONSTITUTE MEETINGS, SO THEY WERE NOT REQUIRED TO BE OPEN TO THE PUBLIC....9 III. THERE IS NO SUPPORT IN LAW FOR DEEMING NON-QUORUM GATHERINGS AS MEETINGS BECAUSE PUBLIC BUSINESS IS DISCUSSED OR FOR AGGREGATING NON-QUORUM ASSEMBLAGES TO REACH A QUORUM TO WHICH THE ACT WOULD APPLY....13 A. Section 25-41-1 does not prohibit the gatherings in question...14 B. There is no support in the text of the Act or case law for considering an aggregation of non-quorum gatherings as a quorum to which the Act would apply....24 C. The Commission s application of the telephone polling concept is misplaced, because there is no evidence that council members voted to take any official action at any of the gatherings...30 i

D. The principle of liberal construction does not support the rulings of the Commission and the chancery court...33 E. The chancery court erred in applying the spirit of the Act instead of the plain meaning of its text...34 F. The view that the gatherings in question circumvented the Act is not a proper basis for holding the gatherings to be in violation of the Act...39 CONCLUSION... 41 ADDENDUM OF STATUTES... 43 CERTIFICATE OF SERVICE... 49 ii

TABLE OF AUTHORITIES Cases: Abbott v. Kansas Board of Examiners in Optometry, 1997 Kan. App. Unpub. LEXIS 876 (Kan. Ct. App. May 30, 1997)... 37, 38 Anderson v. Lambert, 494 So. 2d 370 (Miss. 1986)... 35 Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269 (Miss. 1985)... 19, 20, 30, 31 Conway v. Mississippi State Board of Health, 252 Miss. 315, 173 So. 2d 412 (1965)... 34, 41 Gannett River States Publishing Corp. v. City of Jackson, 866 So. 2d 462 (Miss. 2004)... 10, 11, 21, 22 Guice v. State, 952 So. 2d 129 (Miss. 2007)... 42 Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107 (Miss. 1989)... 23 Illinois Central R. Co. v. Jackson Ready-Mix Concrete, 137 So. 2d 542 (Miss. 1962)... 9 Legislature v. Shipman, 170 So. 3d 1211 (Miss. 2015)... 25 Lewis v. Hinds County Circuit Court, 158 So. 3d 1117 (Miss. 2015)... 34 Maxey v. Smith, 823 F. Supp. 1321 (N.D. Miss. 1993)... 37, 38 Mickle v. Mississippi Employment Security Commission, 765 So.2d 1259 (Miss. 2000)... 9 Mississippi Commission on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So. 2d 1211 (Miss. 1993)... 9 Mississippi Employment Security Commission v. Jones, 826 So.2d 77 (Miss. 2002)... 9 Montgomery v. Galbraith, 19 Miss. 555 (1848)... 37 iii

Moore v. McCullough, 633 So. 2d 421 (Miss. 1993)... 16, 40 Nichols v. Patterson, 678 So. 2d 673 (Miss. 1996)... 16, 30, 32 Parsons v. Miss. State Port Auth. at Gulfport, 996 So. 2d 165 (Miss. Ct. App. 2008)... 35 Pegram v. Bailey, 708 So. 2d 1307 (Miss. 1997)... 35 Rawls Springs Utility Dist. v. Novak, 765 So. 2d 1288 (Miss. 2000)... 16, 30, 32 Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449 (1925)... 35 Samuels v. District of Columbia, 650 F. Supp. 482 (D.D.C. 1986)... 16 Shelby v. Burns, 153 Miss. 392 (Miss. 1929)... 10 Slush v. Patterson, 201 Miss. 113 (Miss. 1947)... 10 Tarrant Regional Water Dist. v. Bennett, 453 S.W.3d 51 (Tex. Ct. App. 2014)... 34 United States v. Emerson, 270 F.3d 203 (5 th Cir. 2001)... 15 United States v. Rutherford, 442 U.S. 544 (1979)... 35 Statutes: Laws, 2003, ch. 496...26 Miss. Code Ann. 25-4-101...16 Miss. Code Ann. 25-41-1...14, 17, 18 Miss. Code Ann. 25-41-3...10, 15, 17, 18 Miss. Code Ann. 25-41-5...9, 15, 17, 18, 32 Miss. Code Ann. 25-41-7...17,18 Miss. Code Ann. 25-41-15...9, 39 Miss. Code Ann. 25-41-17...17 iv

Ordinances: Columbus Charter 2...2 Columbus Charter 5...3 Columbus Charter 16...3 Columbus Code 2.48...3, 10 Attorney General s Opinions: OAG (Abide), 1987 WL 121597 (May 14, 1987)...31 OAG no. 1999-0126 (Chamberlin), 1999 WL 325697 (April 19, 1999)... 22, 25 OAG no. 2004-0537 (Cook), 2004 WL 3015445 (November 5, 2004)...23 OAG no. 2013-0499 (Jones), 2014 WL 581499 (Jan. 10, 2014)...23 Mississippi Ethics Commission Orders: Jones v. Yazoo City Board of Mayor and Aldermen, no. M-12-010 (October 3, 2014)...14 Thomas E. Williams v. Lauderdale County Board of Supervisors, no. M-14-001 (January 9, 2015)...14 The Commercial Dispatch v. Mayor and City Council, City of Columbus, no. M15-008 (Nov. 4, 2016)...29, 30 Other: Webster s Third New International Dictionary (1986)...25, 39 v

STATEMENT OF ISSUES 1. Whether the gatherings at issue were not subject to the requirements of the Open Meetings Act because they did not meet the Act s definition of meeting. 2. Whether gatherings that are not meetings are nonetheless subject to the Act because such gatherings are a deliberative stage in the policy-making process. 3. Whether the Act provides for aggregating non-quorum gatherings related to the same subject to achieve a quorum that would be subject to the Act. 4. Whether it was proper to apply the Act s general statement of policy and purpose to override the plain terms of the operative provisions of the Act. 5. Whether the gatherings in question violated the Act because they were the equivalent of the use of telephone polls to conduct official acts. 6. Whether it was proper to apply the spirit of the Act over its express terms. 7. Whether the view that the gatherings in question circumvented the Act was a proper basis for holding the gatherings to be in violation of the Act. STATEMENT OF ASSIGNMENT The Supreme Court should retain jurisdiction of the case because it presents a major question of first impression concerning public access to communications of public officials that is of broad public importance and calls for prompt and ultimate resolution by the Supreme Court. 1

STATEMENT OF THE CASE Course of Proceedings and Disposition in the Court Below Robert Nathan Gregory filed a complaint with the Mississippi Ethics Commission ( the Commission or MEC ) against the City of Columbus 1 ( the city ), seeking a ruling that certain meetings of sub-quorum groups of members of the Columbus City Council ( the council ) were required to be open under the Open Meetings Act ( the Act ). (Adm. R. 65-70.) 2 The city filed a response to the complaint. (Adm. R. 53-61.) A hearing officer issued a preliminary report and recommendation proposing that the Commission issue a ruling that the meetings in question violated the Act. (Adm. R. 46-51.) The city filed an objection to the report and recommendation and requested a hearing before the Commission. (Adm. R. 21-29.) The Mississippi Municipal League filed a brief supporting the position of the city. (Adm. R. 12-19.) The Commission held non-evidentiary hearings and heard oral argument on November 7 and December 5, 2014. On January 21, 2015, the Commission issued a final order in which it ruled in favor of the complainant, holding that the meetings in question violated the Act and ordering the council to refrain from such gatherings. (Adm. R. 1-6.) 1 Under the city s charter, the name of the body politic and corporate, in which it may sue and be sued, plead and implead in any court of law and equity, is the mayor and city council of the City of Columbus. (City charter 2, at https://www.municode.com/library/ms/columbus/ codes/code_of_ordinances?nodeid=in_ch.) It was in that name that the city brought the appeal from the Commission s ruling to the chancery court. 2 The pages in the MEC administrative record are numbered with an MEC prefix and leading zeroes (e.g., MEC 00001). Citations to the administrative record in this brief omit the prefix and leading zeroes (e.g., Adm. R. 1). MEC arranged the documents in its record in reverse chronological order. 2

The city appealed from the Commission s final order to the Chancery Court of Lowndes County and filed a brief supporting its appeal (R. 5-8, 9-35). Mr. Gregory did not file a brief or make an appearance in the chancery court. On May 24, 2016, the chancery court entered an Opinion and Judgment affirming the Commission s final order. (R. E. 4-15; R. 36-47.) The city then brought this appeal. Statement of Facts The City of Columbus is a special charter city, the governing authorities of which are six council members and a mayor. The mayor is not a member of the council and has no vote unless there is a tie vote among the council. A majority of the council four members constitutes a quorum. (Charter 5, 16; Code of Ordinances 2-48 (Adm. R. 58-61); Opinion and Judgment, p. 3 (R. E. 5-6; R. 37-38.).) Robert Nathan Gregory was a news reporter employed by the publisher of The Commercial Dispatch, a newspaper published in Columbus. Mr. Gregory s complaint to the Commission alleged that the city had violated the Open Meetings Act, Miss. Code Ann. 25-41-1 et seq., by having successive meetings of the mayor and various council members on the same day dealing with the same subject, each meeting having less than a quorum of the council in attendance. (Adm. R. 65-66.) The complaint acknowledged that each meeting complained of was attended by three or fewer members of the council and thus did not involve a quorum of the council. (Adm. R. 65.) Mr. Gregory complained of four instances of such same-day successive nonquorum assemblages. His complaint, which incorporated by reference statements made in newspaper articles attached to the complaint, alleged that on January 23, 2014, an 3

official of the Golden Triangle Development Link ( the Link ) met with members of the council in two separate gatherings, each of which was attended by three members of the council, to discuss the future of retail development in the city. (Adm. R. 65-66.) It was alleged that sets of similar non-quorum meetings with officials of the Link to discuss retail development took place on February 4 and February 23, 2014. The complaint also alleged that on February 27, 2014 there were two non-quorum meetings to discuss the renovation of a public building, each attended by the mayor, an architect, a construction company project manager, and two city employees, with two council members present at the first meeting and three other council members at the second. (Adm. R. 66, 70). There was no allegation by Mr. Gregory or finding by the Commission that a quorum of the council ever assembled simultaneously on any of those occasions. For purposes of the MEC proceedings, the city accepted the allegations of the complaint except as noted in its response objecting to the preliminary report and recommendation of the hearing officer (Adm. R. 21-29). For example, in its response the city expressly denied that the council made any determinations of public policy at any of the gatherings that is, the city denied that the members had attempted to take, or purported to take, any official action. (Adm. R. 22, 26.) Thus, to the extent that the complaint could be read as alleging that a vote or determination of policy took place at any of the gatherings, the city denied the allegation. Because there was no admission of any such allegation, and no testimony regarding such action was presented to the hearing officer or the Commission, there was no evidence before the Commission or the chancery court that the council took any official action at any assemblage or 4

combination of assemblages. Rather, the only evidence about the substance of the gatherings was that they involved only the receipt of information and discussions. In addition, there was no allegation or evidence that the council members who attended one non-quorum session communicated with the council members who attended the other session regarding what went on during each session or what was said by the council members at the respective gatherings. Mr. Gregory s complaint acknowledged that the non-quorum gatherings did not meet the definition of meeting under the statute or case law. (Adm. R. 65.) However, he asked the Commission to hold that the gatherings nevertheless violated the Act because the gatherings involved projects or organizations of public interest and the purpose of engaging in public business existed. (Adm. R. 66.) In its final order of January 23, 2015, the Commission ruled that the meetings in question were in violation of the Act. The Commission reasoned that even though the individual gatherings were not meetings, they were nevertheless contrary to the Act because (1) the gatherings were prearranged and (2) the participants discussed matters of city business. (Adm. R. 4.) In other words, the meetings were deemed improper because the Commission believed they were deliberately structured to allow the City to circumvent the application of the Act and discuss public business in private. (Adm. R. 5.) The chancery court affirmed the Commission s order, finding it dispositive that the mayor and others had met with a quorum of the council in total (albeit in separate gatherings) on the same day. (R.E. 7 ; R. 39.) The court did not hold that there had 5

ever been a meeting as defined in the Act, but apparently based the affirmance on the court s conclusion that the procedure in question was contrary to the spirit of the Act. (R.E. 9, 12; R. 41, 44.) SUMMARY OF THE ARGUMENT Under the plain and unambiguous text of the Open Meetings Act, the subquorum gatherings at issue here were not covered by the Act. The Act s requirements of notice and public accessibility apply only to official meetings, and the Act defines meeting as an assemblage of members of a public body at which official acts may be taken. Since official acts may validly be taken only when a quorum of the body is assembled, a meeting is an assemblage of a quorum. Consequently, any gathering of less than a quorum is not a meeting and thus is not subject to the requirements of the Act. Section 25-41-1, the Act s general statement of policy and purpose, does not prohibit the gatherings in question, because, under the rules of statutory construction the general statement of policy must yield to the specific and unambiguous provisions of the Act which exclude a non-quorum assemblage from the coverage of the Act. Also, the the phrase formation and determination of public policy in section 25-41-1 does not apply to mere discussions at non-quorum gatherings, because a public body cannot form and determine policy at gatherings of less than a quorum. In any event, section 25-41-1 says that the formation of policy must be conducted at open meetings except as 6

otherwise provided, and it is otherwise provided in sections 25-41-3 and 25-41-5 that non-quorum gatherings are excluded from the requirements of the Act. The decisions of the Supreme Court do not support the proposition that a nonquorum gathering is subject to the Act because it is a deliberative stage in the transaction of public business. The cases relied on by the Commission and the chancery court for that theory merely held that the Act applies to any meeting of a public body involving discussions related to the business of the public body (as opposed to a gathering having only a social purpose), and not just to those meetings where there is an actual transaction of business. Since those cases involved meetings of a quorum and addressed the issue of when a meeting otherwise subject to the Act is exempt from the Act as a social gathering, they have no application to non-quorum gatherings. The position that the deliberative stages analysis makes non-quorum assemblages subject to the Act has not been followed by the Mississippi Attorney General in official opinions or by the Commission in other rulings and is inconsistent with the text of the Act. There is no legal basis for aggregating non-quorum assemblages involving the same subject matter to reach a quorum that would be subject to the Act. That theory is contrary to the plain text of the Act and ignores statutory definitions and the ordinary meaning of words in that multiple separate gatherings cannot properly be deemed a meeting because they cannot be an assemblage and the persons present cannot lawfully take official action. In any event, the gatherings at issue would not be unlawful under the theory of aggregation because there is no evidence that any of the council 7

members present communicated with more than two other council members, so that there were no communications involving a quorum of the council. The Supreme Court s disapproval of the use of telephone polls among the members to conduct official acts does not support the decision below. That holding is not applicable here because there was no evidence, and no finding of fact by the chancery court, that there was any polling or vote of council members to take any official acts at any of the non-quorum gatherings. As well, there was no evidence or finding of fact below that the City attempted to take official action following the non-quorum assemblages, as was the case in Mississippi Publishers, et al. The decision below is not justifiable as an instance of liberal construction of the Act or of enforcing the spirit of the Act, because a court may not use those principles to reach a result that is contrary to the plain and unambiguous text of a statute. The gatherings at issue, which are permitted by the terms of the Act, are not rendered unlawful because they allegedly were structured to circumvent or avoid the applicability of the Act. The Supreme Court has held that actions that do not violate the text of a statute may not be declared by a court to be unlawful on the ground that the actions were structured to circumvent the statute. 8

ARGUMENT I. STANDARD OF REVIEW When the Supreme Court or the court of appeals reviews a decision by a chancery court on an appeal from an action of a state agency, it applies the same standard of review the chancery court is bound to follow. Mississippi Commission on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So. 2d 1211, 1215 (Miss. 1993). The appellate court reviews the factual findings of the agency or the chancery court to determine whether they are supported by substantial evidence or are arbitrary and capricious. The court reviews the legal conclusions of the agency and the chancery court de novo to determine if the law was correctly applied to the facts. Mississippi Employment Security Commission v. Jones, 826 So.2d 77 (Miss. 2002); Mickle v. Mississippi Employment Security Commission, 765 So.2d 1259, 1261 (Miss. 2000). A trial court s decision that agency action is supported by substantial evidence is a question of law subject to de novo review. Illinois Central R. Co. v. Jackson Ready- Mix Concrete, 137 So. 2d 542, 545-46 (Miss. 1962). In addition, the Mississippi Code expressly provides that judicial review of a decision of MEC on an Open Meetings Act complaint is de novo. Miss. Code Ann. 25-41-15. II. UNDER THE PLAIN TERMS OF THE OPEN MEETINGS ACT, THE GATHERINGS IN QUESTION DID NOT CONSTITUTE MEETINGS, SO THEY WERE NOT REQUIRED TO BE OPEN TO THE PUBLIC. The Open Meetings Act provides that official meetings of any public body must be open. See Miss. Code Ann. 25-41-5(1). The Act does not identify any other type of 9

assemblage or gathering of public officials that must be open. It follows that if a gathering is not a meeting of a public body within the meaning of the statute, then the gathering need not be open to the public. The Act also plainly defines the term meeting : "Meeting" means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power, including an assemblage through the use of video or teleconference devices that conforms to Section 25-41-5. Miss. Code Ann. 25-41-3(b). A quorum of a public body must be present before the body may take any official acts, and any purported transaction of business by an assemblage of less than a quorum is of no effect. See Gannett River States Publishing Corp. v. City of Jackson, 866 So. 2d 462, 466 (Miss. 2004) (body could take official action where quorum was present); Slush v. Patterson, 201 Miss. 113, 131-132 (Miss. 1947) (quorum is the number of members competent to transact business in the absence of the other members); Shelby v. Burns, 153 Miss. 392, 398 (Miss. 1929) (less than a quorum of a deliberative assembly is without power to transact business); Columbus Code 2.48 (Adm. R. 61) (quorum of council must be present for business to be done); Final Order (Adm. R. 3) (acknowledging that [o]fficial acts may be taken when a quorum of the public body is assembled ). In Gannett, the Supreme Court described the law as provided by the Act regarding what gatherings of members of a government body are required to be open to the public: [A] public body holding a meeting must make the meeting open to the public unless an executive session is called, where the Legislature has 10

defined public body and meeting and has outlined the procedure for holding an executive session.... The Legislature has defined "meeting" as "an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power.... Gannett, 866 So. 2d at 466 13, 14 (bold type in original). Regarding whether the gathering at issue in that case was a meeting, the court said, The six of seven council members who were present at the event composed a public body then that could have taken official acts because a quorum was present. Id. at 466 15 (emphasis added). Thus, under the statute, if an assemblage is not a meeting of a public body as defined by the statute, then the gathering need not be open to the public. And since a meeting requires the presence of a quorum otherwise, it is not an assemblage at which official acts may be taken then a gathering of less than a quorum is not required to be open. By providing only that a meeting must be open and not providing that any other assemblage must be open, the Legislature necessarily excluded gatherings which are not meetings -- that is, gatherings at which official action may not validly be taken (i.e., non-quorum assemblies) from the requirement of openness. Expressio unius est exclusio alterius. The Commission gave a similar summary of the law in its final order: Section 25-41-5 directs that all official meetings of public bodies are public meetings and shall be open to the public.... Section 25-41-3 defines a meeting as an assemblage of members of a public body at which official acts may be taken.... Official acts may be taken when a quorum of the public body is assembled. Final Order, p. 3 (citations omitted) (Adm. R. 3). That statement of the law should have led the Commission to rule summarily against Mr. Gregory, because it is undisputed 11

that none of the gatherings at issue included a quorum of council members, so none of the gatherings was an assemblage... at which official acts could be taken," and thus none of the gatherings was a meeting. Under the plain language of the Act, because the gatherings in question were not meetings of a public body as defined in the statute, then there was no requirement that the public be allowed to attend, and there was no violation of the Act. The Commission and the chancery court at least tacitly acknowledged this by their reasoning that the assemblages were unlawful because they circumvented the Act or were contrary to its spirit. (See Adm. R. 5; R.E. 9, 12; R. 41, 44.) Mr. Gregory acknowledged in his complaint that these meetings do not consist of a quorum and do not require the posting of notices informing the public of the meetings and that no case law exists in Mississippi regarding organized meetings with less than a quorum of elected officials. (Adm. R. 65, 66.) Mr. Gregory also admitted as much in a newspaper article attached to the complaint, writing, By law, city officials can deny access to meetings to citizens or media if fewer than half of the council is in attendance. (Adm. R. 70.) In short, Mr. Gregory concedes that the text of the Act permits the meetings in question and that there are no state court decisions holding that a non-quorum assemblage is subject to the Act. Neither the Commission s final order nor the chancery court s opinion cites any such state court decisions. Thus, there appears to be no question that there is no precedent for the decision below. In essence, Mr. Gregory s complaint (and the Commission s ruling) was not that the City was not technically in compliance with the Act, but rather that the Act was 12

deficient because it allowed the council member to meet informally in sub-quorum groups to receive or discuss information in a way that Gregory (and the Commission) did not like. Mr. Gregory in effect called on the Commission to change the statute, and the Commission unfortunately obliged. Because such a rewriting of the Act is something that only the legislature has the authority to do, the chancery court erred in upholding the Commission s action. By prescribing openness only for meetings and not providing that any other assemblage must be open, the Act necessarily excludes gatherings that are not meetings that is, gatherings at which official action may not validly be taken (i.e., non-quorum assemblies) from the requirement of openness. Expressio unius est exclusio alterius. Since, due to the absence of a quorum, the gatherings at issue here were not assemblages at which official acts could be taken, then there was no violation of the statute, and the judgment of the chancery court to the contrary should be reversed. III. THERE IS NO SUPPORT IN LAW FOR DEEMING NON-QUORUM GATHERINGS AS MEETINGS BECAUSE PUBLIC BUSINESS IS DISCUSSED OR FOR AGGREGATING NON-QUORUM ASSEMBLAGES TO REACH A QUORUM TO WHICH THE ACT WOULD APPLY. As shown above, the assemblages in question were not meetings as defined in the Act and thus were not subject to the Act s notice and public-access provisions under the Act s plain terms. The Commission and the chancery court nevertheless concluded 13

that each set of separate non-quorum gatherings contravened the Act, either because the gatherings were planned and public business was discussed or because the total number of council members in attendance at the separate sub-quorum gatherings taken together was a quorum. 3 In support of that reasoning, the Commission and the chancery court relied variously on the Act s general statement of policy and purpose, pronouncements of the Supreme Court taken out of context, the need to construe the Act liberally, the spirit of the Act, and preventing circumvention of the Act. For the reasons discussed below, none of those justifications supports deviating from the plain language of the Act, under which the gatherings at issue simply were not subject to the Act because they were not meetings as defined therein. A. Section 25-41-1 does not prohibit the gatherings in question. The Commission and the chancery court eschewed the clear and explicit provisions of the Act that specifically provide what gatherings of public officials must be open (sections 25-41-3 and 25-41-5) and relied instead on the Act s general statement of policy and purpose. The language pointed to by the decisions below is that 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. Miss. Code Ann. 25-41-1. The Commission said that this legislative 3 The concept of adding up the number of board members attending various non-quorum assemblages has been referred to by the Commission in other recent rulings as a piecemeal quorum. See Thomas E. Williams v. Lauderdale County Board of Supervisors, no. M-14-001 (January 9, 2015); Jones v. Yazoo City Board of Mayor and Aldermen, no. M-12-010 (October 3, 2014). Under that concept, any discussions among board members in non-quorum groups, or even in one-on-one telephone conversations or e-mails, violates the Act if a member s discussions of the same subject with other members collectively involve a quorum of the board. 14

statement of general policy is the standard by which this case must be addressed. (Adm. R. 2). The apparent reasoning of the decisions below is that non-quorum gatherings at which public business is discussed are covered by the Act under the theory that any such discussions are part of the formation and determination of public policy. However, that reasoning that section 25-41-1 makes the gatherings at issue in this case unlawful, despite the explicit provisions of the Act under which non-quorum gatherings are plainly excluded from the Act s requirements is erroneous for at least four reasons. First, the conclusion violates the rules of statutory construction. If section 25-41- 1 prohibits a category of gatherings that are sanctioned by sections 25-41-3 and 25-41-5, then then the former section is inconsistent with the latter sections. In such case, the conclusion reached by the Commission and the chancery court violates the rule of construction that where two statutory provisions are inconsistent, the more specific provision will control over the more general. In this case, section 25-41-1 is a general statement of legislative policy and purpose. Section 25-41-3, with its definition of meeting, and section 25-41-5, which provides that a meeting must be open to the public and prescribes no other assemblage that must be open, state specifically and precisely which assemblages must be open. Since the specific provisions of the Act exclude a non-quorum assemblage from the coverage of the Act, without regard to the nature and content of such assemblage, and since the specific parts of the Act control over the general, then the general provisions of section 25-41-1 cannot bring nonquorum gatherings within the scope of the Act. 15

In addition, the reliance on section 25-41-1 is contrary to the general rule of construction that preambles or general statements of policy cannot override specific provisions of a statute. See United States v. Emerson, 270 F.3d 203, 233 (5 th Cir. 2001); Samuels v. District of Columbia, 650 F. Supp. 482, 484 (D.D.C. 1986). In Moore v. McCullough, 633 So. 2d 421 (Miss. 1993), the Supreme Court applied the plain terms of the Ethics in Government Act in finding that the defendant had not violated the Act, thus rejecting the dissent s argument that the Act s declaration of policy, Miss. Code Ann. 25-4-101, controlled and mandated a contrary result. See id. at 422-23 (majority opinion), 425 (dissent). Second, the phrase formation and determination of public policy cannot plausibly be read to include mere discussions at non-quorum gatherings, because the phrase denotes the taking of official action, which cannot occur at gathering of less than a quorum of a public body. Public policy cannot be formed or determined except by a vote, reflected on the minutes, of a majority of a quorum of a public body duly assembled at a meeting. See Rawls Springs Utility Dist. v. Novak, 765 So. 2d 1288, 1291 (Miss. 2000); Nichols v. Patterson, 678 So. 2d 673, 677 (Miss. 1996). Thus, the mere receipt of information by a board member or a group of board members, or mere discussions among a group of board members, is not the formation or determination of public policy, any more that the solitary study or ruminations of a single board member would be. If the former are covered by the formation and determination clause, then the latter must be as well, for the reading and deliberations of a single board member are just as much a part of the ultimate determination of public policy as is a 16

discussion among a group of board members. While the receipt of information by or discussions among members must be in an open meeting if a quorum is simultaneously involved, that is not because such discussions are part of the formation and determination of public policy but rather because the Act expressly commands that gatherings of a quorum whether for mere discussion or for actual formation of policy must be open to the public, unless they happen by chance or are purely social functions. Third, the Commission relied only on a portion of the statement of policy in section 25-41-1 rather than the entire statement, which includes a critical exception. The full statement of policy says that the formation and determination of policy must be conducted at open meetings except as otherwise provided herein. Miss. Code Ann. 25-41-1. Thus, even if the language relied on by the Commission would, standing alone, support the conclusion that 25-41-1 expands the scope of gatherings covered by the Act, that conclusion becomes untenable when the exception is added, because the legislature, in carefully crafting its definitions and mandate in sections 25-41-3 and 25-41-5 to exclude non-quorum gatherings, has otherwise provided as it also did, for example, with the provisions permitting executive sessions in certain cases and with the provisions exempting certain public bodies (including the judiciary) from its coverage. See Miss. Code Ann. 25-41-3(a)(1) (ix), 25-41-7. The Commission can no more validly use the general language of section 25-41-1 to negate the explicit provisions of sections 25-41-3 and 25-41-5 concerning what gatherings must be open than it could do so with respect to the executive-session provisions in section 25-41-7 or the social gatherings provision of section 25-41-17. 17

The chancery court, unlike the Commission, acknowledged the presence of the except as otherwise provided clause, but rejected its application with respect to sections 25-41-3 and 25-41-5, apparently reasoning that the clause includes only the executive session exceptions in section 25-41-7. (R.E. 9; R. 41.) But if the clause refers only to the executive session provision, then the general statement that the formation and determination of policy would necessarily override the exemptions of certain public bodies in section 25-41-3(a) as well as the explicit direction in section 25-41-5 that only gatherings of a quorum are required to be open. In such case, sessions of, for example, the Workers Compensation Commission and this Court would have to be open to the public notwithstanding the express exemptions in section 25-41-3(a). If the formation and determination of public policy is deemed to include the mere discussion of public matters at a non-quorum gathering, then the otherwise provided clause must necessarily include any provision of the Act that excludes such gatherings from the Act s coverage. As noted, sections 25-41-3 and 25-41-5, taken together, exclude non-quorum gatherings from the Act s requirements. Thus, the general statement in section 25-41-1 cannot be a basis for holding such gatherings to be unlawful, because the former sections otherwise provide. Fourth, there is no discernible limiting principle to the use of the general policy language of section 25-41-1 to hold that gatherings which are not meetings may nonetheless be subject to the Act. Under the apparent reasoning below that section 25-41-1 requires a non-quorum gathering to be open if the participants discuss public 18

business, because any discussion is part of the formation... of public policy, it would follow that meetings, telephone conversations, text messages, and emails between even two board members addressing governmental matters would effectively be prohibited. Under that broad scope, any communication between a city council member and, for example, the Mayor, the city engineer, or even a private citizen regarding a matter before the public body would also be covered by the Act. Other examples of such grotesque consequences that would logically follow from the Commission s reasoning were put to the Commission by the city and the Mississippi Municipal League in their submissions. See city s response to report and recommendation, pp. 7-8 (Adm. R. 27-28); MML s memorandum pp. 6-7 (Adm. R. 17-18). Neither the Commission nor the chancery court attempted to distinguish the result here from the examples given or to explain how the principles adopted could be limited to avoid such irrational consequences. However, the fact that a particular statutory interpretation, if neutrally applied to other circumstances, would lead to patently unreasonable results indicates that that interpretation is itself unreasonable and was not intended by the legislature. In applying section 25-41-1, the Commission and the chancery court relied on the Supreme Court s statement in Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 278 (Miss. 1985) that all the deliberative stages of the decision-making process that lead to formation and determination of public policy are required to be open to the public, apparently reasoning that the receipt of information and discussions that occurred in each non-quorum gathering at issue constituted a 19

deliberative stage and thus the gatherings were required to be open. However, the Commission and the chancery court were mistaken in taking that statement out of its context of meetings involving a quorum of members of a public body. The issue in Mississippi Publishers was whether certain meetings of a quorum of the Board of Trustees of State Institutions of Higher Learning were required by the Act to be public. The Board of Trustees argued that the meetings in question, although attended by a quorum, could be closed to the public because they involved only information sharing, and no official acts were taken. Id. at 278. In other words, the Board of Trustees contended that only official meetings of a public body at which official acts were actually taken were required to be open. The court rejected that contention, quoting the language of the Act providing that a meeting is any assemblage at which official action may be taken and not merely those at which official action is taken. Id. Thus, the court stated that all meetings of the body involving deliberative stages (i. e., the discussion of business) must be open, and not just those meetings where there is or may be a vote to take official action. Id. Since the meetings in question involved discussions of public business, the court held that they were a deliberative stage and did not come within the exception for social gatherings and that consequently the meetings were required to be open despite the fact that no actual matters were taken up for action. Id. Since the gatherings at issue in Mississippi Publishers were meetings of a quorum, the court s holding was merely that meetings assemblages of a quorum, the only assemblages at which official acts may be taken must be open if business is 20

discussed and not merely if official action (that is, a vote) is going to be taken. There is no implication that the court was purporting to address non-quorum gatherings at all, much less to say that any discussion of business by a non-quorum group must be open to the public. This is clarified by the Supreme Court s subsequent decision in Gannett River States Publishing Corp. v. City of Jackson, 866 So. 2d 462 (Miss. 2004), which reiterated the deliberative stages principle from Mississippi Publishers. See Gannett, 866 So. 2d at 468. As in Mississippi Publishers, the issue was whether an assemblage of a quorum of a public board was required to be open even though the purpose of the meeting was not to transact business. Gannett, 866 So. 2d at 466 15. The purpose of the convocation of city council members was to meet with a communications consultant to facilitate better relations among the members of the council. As in Mississippi Publishers, the public body contended that because no official acts [i.e., votes] had been taken at the gathering and there had been no formal discussion of the potential transaction of business, the gathering was not an official meeting. Id. at 466. The court disagreed with that analysis, noting that the wording in the statute is official acts may be taken and that [t]he six of seven council members who were present at the event composed a public body then that could have taken official acts because a quorum was present. Id. 15. Thus, because the statute does not indicate that official acts must be taken in order for the gathering to be considered a meeting, the mere presence of a quorum made the gathering subject to the Act unless the meeting was only a social gathering. Id. The court held that for various reasons, including the existence of an 21

agenda, the exclusion of family members, and the fact that session was related to the functioning of the public body (the court noted that the stated purpose of the function was to improve the ability of those present to work together through learning more about each other ), the meeting was not a social gathering and thus was required to be open to the public. Id. at 467, 468 21. As in Mississippi Publishers, there was no issue before the court in Gannett regarding non-quorum gatherings, and thus the decision has no application to such gatherings. The court held that even where a gathering is a meeting as defined in the Act (i.e., an assemblage of a quorum), it is covered by the Act only if there are to occur deliberative stages of the decision-making process; otherwise it is a social gathering. Id. at 468 22. With this analysis, the court was confining the deliberative stages analysis to gatherings of a quorum. In sum, Mississippi Publishers and Gannett both concerned meetings of a quorum of the public body in question and did not purport to limit non-quorum gatherings in any way. Thus, the Commission and the chancery court have derived a principle for non-quorum communications from Supreme Court cases that have absolutely nothing to do with non-quorum assemblages. There is no warrant for such reasoning. It is apparent that the Mississippi Attorney General, in his consideration of the Act s requirements, has not concluded that the Supreme Court s discussion of deliberative stages in Mississippi Publishers has any application to non-quorum gatherings. For example, in Opinion no. 1999-0126 (Chamberlin), 1999 WL 325697 (April 19, 1999), the attorney general considered whether less than a quorum of a 22

public body may meet without violating the Open Meetings Act. The attorney general stated that under the facts given there is no quorum of any governing body and therefore no official acts may be taken upon a matter over which the public body has supervision " and that the coming together of individuals who are members of the governing boards of municipalities and of the county, without a quorum being present so as to not constitute a meeting of that public body, is not strictly within the purview of the Public [sic] Meetings Act. Id. at *1. The attorney general distinguished the situation from that in Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107 (Miss. 1989), because in Common Cause members of a board of supervisors had met with federal officials as a body (that is, with a quorum present) without notice to the public. 1999 WL 325697 at *1. Likewise, in Opinion no. 2013-0499 (Jones), 2014 WL 581499 (Jan. 10, 2014), and Opinion no. 2004-0537 (Cook), 2004 WL 3015445 (November 5, 2004), the attorney general made it clear that non-quorum meetings are not required to be open. In the latter opinion, a mayor sought the attorney general s concurrence that, under the Act, if two or more aldermen gather they shall not discuss city business. However, the attorney general rejected that proposition, stating instead that non-quorum gatherings were are not covered by the Act. Id. at *1. Ultimately, the issue is a matter of legislative intent. When the legislature states in one section of the Act that the formation and determination of public policy (including all deliberative stages, in the words of the Supreme Court) is to be done in open meetings yet provides in another section that only a meeting (defined as an assemblage of a quorum) is required to be open, the legislature has itself limited the 23

scope of all deliberative stages to deliberations and discussions of a quorum. For these reasons, the tribunals below erred in their reliance on the all deliberative stages language to extend the scope of the Act to non-quorum gatherings. Since section 25-41-1 does not override the plain meaning of sections 25-41-3 and 25-41-5, the Commission and the chancery court erred in holding that the assemblages in question violated the Act. Consequently, the judgment of the chancery court upholding the Commission s final order should be reversed. B. There is no support in the text of the Act or case law for considering an aggregation of non-quorum gatherings as a quorum to which the Act would apply. The Commission and the chancery court concluded that the paired sets of nonquorum gatherings contravened the Act because the mayor and other officials met with a quorum of the council in total during the course of the separate meetings. For example, with respect to the first instance of separate non-quorum meetings, the mayor and others met with three council members at the first such meeting and met with three others at the second meeting. Since the mayor met with a total of six members (more than a quorum) on the same day regarding the same matter, the Commission and the chancery court reasoned that this constituted a meeting covered by the act just as if the quorum had met simultaneously. This piecemeal quorum 4 theory is purely a creation of the Commission and has no support in the text of the Act or the decisions of Mississippi courts. The isolated statements from the Supreme Court about deliberative stages do not support the 4 See supra n. 5. 24

piecemeal quorum concept, particularly since all the cases in question concerned quorum assemblages and did not address in any way non-quorum meetings or communications (other than voting by telephone outside a public meeting on a matter that binds a public body). The concept contravenes the plain language of the Act which requires only meetings to be open and defines meeting as an assemblage in particular because it disregards the meaning of assemblage. Words in a statute that are not defined therein are to be given their common and ordinary meaning. Legislature v. Shipman, 170 So. 3d 1211, 1218 (Miss. 2015). Applying that rule, assemblage cannot include an aggregation of individual sub-quorum gatherings or conversations occurring at different times and places. To assemble means to bring or gather together into a group. See, e.g., Webster s Third New International Dictionary (1986). Under no reasonable application of the common meaning can it be said that a quorum is assembled by board members merely meeting or talking to each other in separate non-quorum groups, because in such a situation the requisite number is not brought together into a group. In an official opinion, the Mississippi Attorney General stated that the coming together of individuals... without a quorum being present so as not to constitute a meeting of that public body, is not strictly within the purview of the [Act]. OAG 1999-0126 (Chamberlin), 1999 Miss. AG LEXIS 133 (April 9, 1999) (emphasis added). Thus, according to the attorney general s cogent analysis, in order for there to be a meeting subject to the Act, there must be a coming together of a quorum, present in one place. 25

Even if multiple separate gatherings could be considered an assemblage without torturing the English language or the text of the Act, the fact remains (and the decisions below do not hold otherwise) that such an assemblage could not pass an ordinance, enter into a contract, or take any other official acts, because only a simultaneously assembled quorum has the power to take such actions. Since only assemblages at which official acts may be taken are meetings subject by the Act, the piecemeal assemblage postulated by the decisions below could not be a meeting in any case. For these reasons, the principle of aggregating sub-quorum groups espoused by the Commission and the chancery court has no valid legal basis. Under the Act as originally adopted, even having a quorum virtually present at the same time for discussion through a telephone conference call was not a meeting under the definition requiring an assemblage capable of taking official action. Hence, the legislature amended the Act in 2003 to permit official actions to be taken by a quorum participating in a teleconference and to redefine meeting to include a virtual assemblage by teleconference. See Laws, 2003, ch. 496, 1, 2, 2003 Miss. ALS (Lexis) 496. If a simultaneous telephonic communication is not a meeting under the Act without a special provision making it so, then it follows that a non-simultaneous and non-communicating piecemeal quorum also is not a meeting absent a special provision expressly making it so. Since there is no such special provision in the Act, there is no basis in law for the Commission or the courts to deem such an arrangement a meeting. 26

The Legislature has considered whether its definition of meeting, requiring the assemblage (i.e., the simultaneous physical gathering in one location) of a quorum, should be revised, and has provided only a single exception to that ordinary meaning of assemblage as a simultaneous congregation of board members in the same location. And in providing for electronic assemblages, the legislature retained the simultaneous aspect of assemblage. The amended statute does not permit piecemeal teleconferences to take official action and does not require teleconferences of less than a quorum to be open to the public. If there is to be a change in the Act to redefine assemblage to remove the simultaneousness feature, that is the solely within the authority of the legislature to accomplish. It is not the province of the Commission or the courts to usurp the function and prerogative of the Legislature by crafting an additional exception to the common meaning of assemblage and redefining meeting to include a piecemeal quorum. Here, a quorum was never brought together either physically or virtually on a telephone conference, and there was no way that the separate gatherings legally could have taken any official acts. Therefore, the gatherings at issue, individually or collectively, did not constitute a meeting under the Act. Beyond its legal invalidity, the piecemeal quorum theory has significant practical problems as a general principle of governance. Unlike the clear definitions of the Act, the concept provides little if any guidance as to what is prohibited beyond the 27