Darien v. Town of Marble , 2006 Colo. App. LEXIS 1918 ( 2006 )

Judge CASEBOLT

dissenting.

In my view, the Town of Marble provided full and timely notice of its January 8, 2004, meeting and supplied the specific agenda information that the Open Meetings Law, § 24-6-401, et seq., requires. I therefore respectfully dissent.

The Open Meetings Law, an initiative proposed and passed into law by the Colorado electorate, reflects the considered judgment of the People that democratic government best serves the commonwealth if its decisional processes are open to public scrutiny. Indeed, the statute's declared purpose as set forth in § 24-6-401 is "that the formation of public policy is public business and may not be conducted in secret." To that end, the statute provides public access to a broad range of meetings at which public business is considered. Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978); see also Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188 (Colo.2004).

The statute should be interpreted broadly to further the legislative intent that citizens be given a greater opportunity to become fully informed on issues of public importance, so that meaningful participation in the decision-making process may be achieved. See Cole v. State, 678 P.2d 345 (Colo.1983).

Section 24-6-402(2)(c), C.R.S.2006, the operative provision at issue here, states:

Any meetings at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or at which a majority or quorum of the body is in attendance, or is expected to be in attendance, shall be held only after full and timely notice to the public. In addition to any other means of full and timely notice, a local public body shall be deemed to have given full and timely notice if the notice of the meeting is posted in a designated pub-lie place within the boundaries of the local public body no less than twenty-four hours prior to the holding of the meeting. The public place or places for posting such notice shall be designated annually at the local public body's first regular meeting of each calendar year. The posting shall include specific agenda information where possible.

There are two key phrases in this provision. The first, "full and timely notice," is not a defined term in the statute. As the court recognized in Benson v. McCormick, supra, 195 Colo. at 383, 578 P.2d at 653, the plain language of the Open Meetings Law "neither establishes the manner in which notice must be given nor defines the content of the required notice." Instead, the term "establishes a flexible standard aimed at providing fair notice to the public." Benson v. McCormick, supra, 195 Colo. at 383, 578 P.2d at 653.

The second phrase, added to the statute in 1991, mandates that "[the posting shall include specific agenda information where possible." That phrase is not defined in the statute, and there are no Colorado authorities interpreting or applying the term. Accordingly, this case presents an issue of first impression.

We review statutory interpretation de novo. McCall v. Meyers, 94 P.3d 1271, 1272 (Colo.App.2004).

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. Colo. Dep't of Revenue v. Woodmen of World, 919 P.2d 806 (Colo.1996); Jones v. Cox, 828 P.2d 218 (Colo.1992). We look primarily to the language of a statute to determine legislative intent. Jones v. Cox, supra, 828 P.2d at 221. In determining the meaning of a statute, we must adopt a construction that will serve the legislative purposes underlying the enactment. Howard Elec. & Mech., Inc. v. Dep't of Revenue, 771 P.2d 475, 479 (Colo.1989).

When reviewing a specific provision of a statute, we consider the statutory scheme as a whole in an effort to give consistent, harmonious, and sensible effect to all its parts. We give words and phrases their plain and ordinary meaning. Bd. of County Comm'rs v. Costilla County Conservancy Dist., supra, 88 P.3d at 1192-93.

We presume that the General Assembly intends a just and reasonable result, § 2-4-201(1)(c), C.R.S.2006, and one that is feasible of execution. Section 2-4-201(1)(d), C.R.S. 2006.

Applying those principles here, I note that in the second key phrase, the statute employs the word "posting" to refer to the physical notice that the public body places in a designated spot.

The statute indicates this posting "shall include" certain information. The word "shall" essentially means "must." Thus, there is an obligation to include the designated information. See Skruch v. Highlands Ranch Metro. Dists. Nos. 3 & 4, 107 P.3d 1140 (Colo.App.2004).

When posting is used as the method of notification to the public, the statute requires that the physical document be placed in the designated spot no less than twenty-four hours before the meeting commences. Thus, the statute defines a point in time at which the obligation must be met.

"Agenda information" connotes a list of things to be done or considered, as items of business or discussion to be brought up at a meeting. See Blacks Law Dictionary 85 (7th ed.1999); Pokorny v. City of Schuyler, 202 Neb. 324, 275 N.W.2d 281 (1979)(purpose of agenda requirement is to give some notice of the matter to be considered). And "specific" means definite or explicit. See Black's Law Dictionary, supra, at 1406.

"Where" in the context of "where possible" has several potential meanings. The word can mean location, see Vsetecka v. Safeway Stores, Inc., 183 Or.App. 239, 51 P.3d 688 (2002), rev'd on other grounds, 337 Or. 502, 98 P.3d 1116 (2004), but that meaning does not fit here, because the statute already designates the place. In other contexts, "where" can mean "whenever," see People v. Seto 162 Misc.2d 255, 616 N.Y.S.2d 890 (N.Y.Sup.Ct.1994), or "if." See B.F. Avery & Sons Co. v. Davis, 192 F.2d 255 (5th Cir.1951), disapproved of in part on other grounds by Katchen v. Landy, 382 U.S. 323, 338-39, 86 S.Ct. 467, 477-78, 15 L.Ed.2d 391 (1966). Giving a consistent, harmonious, and sensible effect to all parts of the statute requires "where" in this context to mean “when” or “if.”

"Possible" has been defined as falling or lying within the powers of an agent, being within or up to the limits of one's ability or capacity, falling within the bounds of what may be done or may be attained, Webster's Third New International Dictionary 17T7l (1976); capable of happening, occurring, or being done, American Heritage Dictionary 1370 (2000); or within a person's power, Shorter Oxford English Dictionary 2295 (2002).

In turn, %if possible" has been defined to mean "if feasible" or "if practicable," and implies the exercise of discretionary judgment. See Headid v. Rodman, 179 N.W.2d 767 (Iowa 1970); State ex rel. Bd. of Fund Comm'rs v. Holman, 296 S.W.2d 482 (Mo.1956).

Reasoning from these interpretations, and in the context of "fair notice," I conclude that the information that must be included within such a posting is whatever definite items of business or issues for discussion the public body knew or intended would arise when it posted the notice. Knowledge of or intent concerning what will arise or what will be decided is required because it would be unreasonable and unworkable to require the notice-giver to include in such posting items of which he, she, or it is unaware or does not intend will be discussed or acted upon. It is not feasible or practicable to include in a notice something about which the notice-giver does not know. See § 2-4-201(1)(c) (presumption that the General Assembly intends a just and reasonable result); § 2-4-201(1)(d) (presumption that the General Assembly intends a result that is feasible of execution); Brady v. City & County of Denver, 181 Colo. 218, 508 P.2d 1254 (1973)(no provision of the law should be interpreted in a way that requires an impossible task); cf § 24-6-402(7), C.R.8.2006 (clerk of local public body shall maintain list of persons who have requested notification of meetings when certain specified policies will be discussed and shall provide reasonable advance notice of such meetings, "provided however, that unintentional failure to provide such advance notice will not nullify actions taken at an otherwise properly published meeting" (emphasis supplied)).

To the extent the statutory phrase "where possible" is ambiguous, examination of the legislative intent reveals support for this interpretation. See Allely v. City of Evans, 124 P.3d 911 (Colo.App.2005) (if the language of a statute is ambiguous or conflicts with other provisions, court may look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme).

Representative Adkins offered the addition of the phrase "where possible" to the statute in the 1991 amendment to the Open Meetings Law. As her justification, she stated that "where possible" should be added because "you can't get an absolute agenda for every meeting, so I think you need the clarification [of] where possible." Hearings on S.B. 91-33 before the Senate Judiciary Committee, 58th General Assembly, ist Session (Feb. 26, 1991).

Therefore, the fairness and adequacy of the notice should be judged by what the notice-giver knew would be done or discussed, or intended would be done or discussed at the meeting, as measured at the time the notice is posted. Thus, when a public body or one of its members knows or intends that a definite item will be discussed or that a particular action will be proposed, it is clearly within his, her, or its capacity or ability to have that item included in the agenda contained in the public notice.

Here, no member of the Town Board had an intention to propose to take or actually to take final action on the mill site issue at or before the time the notice of the January 8 meeting was posted, and no member knew that such action would occur. Indeed, the person who made the motion to preclude a permanent structure for the Tomb project at the mill site testified at trial without contradiction that he had no preconceived intent or plan to do so. Instead, he formulated the motion only after discussion of the issue ensued when the "Mill Site Committee Update" item arose at the meeting. In addition, the town clerk, who prepares the notice of regular monthly meetings, testified without contradiction that she had no indication that any action was intended or would be proposed on the mill site issue.

Thus, the Town included within its posting all specific agenda information that was possible to include at the time it posted its notice. Accordingly, I disagree with the majority's determination that the public notice given for the January 8 meeting did not comply with the Open Meetings Law. It is clear from the record that the Board had no intention to make a final decision when the notice was posted and that none of its members or employees knew such action would be proposed or taken. The Board's lack of such knowledge or intent renders the notice full and timely, and the notice thus complies with the requirement that it include specific agenda information "where possible."

The majority acknowledges that the public notice did not convey that the Board would make a decision on the project. The notice specified that there would be a "Mill Site Committee Update" and that there would be "authorization for Mill Site Committee Survey expenditure(s)" and "replacement of a committee member." Such matters are what the Board knew would be discussed or authorized. Contrary to the majority, I do not think the statute requires more.

Given my analysis of what the statute requires, I do not perceive that the Board was prohibited from acting upon the motion concerning the placement of a permanent strue-ture at the mill site during its January 8 meeting simply because the posted notice did not state that such action might occur. As the court noted in Benson v. McCormick, supra, when there are unforeseen developments, as here, it may be reasonable for a governmental body to consider unexpected measures regarding which no notice was given. And while it is unfortunate that supporters of a permanent structure at the mill site were not present when the Town Board acted, courts should not invalidate actions of a governmental body for that reason alone. Instead, only when a statutory violation occurs will such actions be negated. See § 24-6-402(8), C.R.S.2006 (no formal action shall be valid unless taken or made at a meeting that meets the requirements of § 24-6-402(2)); Hyde v. Banking Bd., 38 Colo.App. 41, 552 P.2d 32 (1976).

Nothing in the Town Board's actions before January 8 persuades me that a different result is warranted. Clearly the Town was interested in obtaining public input concerning the project: it had placed some of its board members on the Mill Site Committee and had asked the Committee to report to the Board. However, the record establishes that the Board had never committed to take a public survey and had never told the Committee or the public that it would wait until a particular date before making any decision on the issue.

Moreover, while it is true, as the majority states, that giving notice of the Board's intention to make a final decision regarding the project (assuming it had such an intention, which it clearly did not here) would not have unduly interfered with the Board's ability to conduct its business in a reasonable manner, I do not construe the Open Meetings Law to require that the Board affirmatively state that such action might oceur at an upcoming meeting before such action can be valid under the law. The key issue in this case is not what information could be included in the notice; rather, the issue is what information the statute requires to be included. While the General Assembly could have limited a public body to taking action only on those items and topics and only to the extent specifically identified in its agenda, it did not do so. The statutory language simply states no such thing.

The majority's determination can be read to limit a board to doing only those things specifically stated in the notice and to preclude any action or discussion outside the narrow boundaries set thereby. Because the Open Meetings Law was not intended to "interfere with the ability of public officials to perform their duties in a reasonable manner," Benson v. McCormick, supra, 195 Colo. at 383, 578 P.2d at 653, and because the majority's view could unduly delay decisions of public officials, I cannot subscribe to it. In my view, the more flexible standard of including in the posted notice only those things that a board knows or intends will occur better serves the policy of noninterference. Hence, actions that were not foreseen or intended at the time notice is posted are not invalid.

In summary, this case does not present a situation in which decisional processes were closed to public scrutiny. Nothing in this case was decided in secret; indeed, the action was taken at an open meeting. Because it was not possible to include in the notice an action that no Town Board member contemplated at the time the notice was posted, I would conclude the Town complied with the Open Meetings Law.