Zseltvay v. Metropolitan Government of Nashville & Davidson County ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
July 31, 1998
Cecil W. Crowson
Appellate Court Clerk
DON ZSELTVAY, )
)
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9710-CV-00587
VS. )
) Davidson Circuit
) No. 96C-13
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON )
COUNTY, TENNESSEE, )
)
Defendant/Appellee. )
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
DAN R. ALEXANDER
2016 8th Avenue South
Nashville, Tennessee 37204
Attorney for Plaintiff/Appellant
JAMES L. MURPHY III
Director of Law
The Department of Law of the Metropolitan
Government of Nashville and Davidson County
RACHEL D. ALLEN
LIZABETH D. FOSTER
THOMAS G. CROSS
Metropolitan Attorneys
204 Metropolitan Courthouse
Nashville, Tennessee 37201
Attorneys for Defendant/Appellee
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The plaintiff claimed that Nashville’s Board of Parks and Recreation
conducted its business in such a way as to violate the Open Meetings Act, Tenn.
Code Ann. § 8-44-101, et seq. The trial court refused to discipline the Board,
dismissing the complaint against it on a finding that the Board had committed a merely
technical violation of the Act. We reverse, and direct the court to impose judicial
oversight upon the Board, as is required by the Act, but we decline to comply with the
plaintiff’s request that we declare the Board’s action to be void and of no effect.
I.
On April 4, 1995, the Board of Parks and Recreation of Nashville and
Davidson County (the Board) held its regular monthly meeting. The matters on the
agenda included consideration of the acquisition of a 195 acre tract of real estate
known as Grassmere Wildlife Park. It is undisputed that prior to this meeting, the
Board met the public notice requirements of Tenn. Code Ann. § 8-44-103 of the Open
Meetings Act. The only reference to Grassmere in the subsequently published
minutes of the meeting of April 4 are found as follows under the heading of Old
Business:
GRASSMERE WILDLIFE PARK UPDATE
Mr. Bob Sullivan, President and CEO of Cumberland
Museums, was present to answer questions from the Board
regarding the acquisition. Ms. Erika Geetter, attorney for the
Metropolitan Government was also present to introduce the
proposed management agreement for Grassmere Wildlife
Park. All proposed agreements are subject to Metropolitan
Council approval.
On May 16, 1995, the Metro Council (the Council) adopted a resolution
approving the purchase of Grassmere. The resolution recited that the purchase had
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been approved by the Board of Parks and Recreation and the Metropolitan Planning
Commission.
On January 2, 1996, Donald Zseltvay filed a complaint in the Circuit
Court for Davidson County. He claimed that the Board had never taken a vote on the
acquisition of Grassmere, and that since the Metro Charter required that the Metro
Council obtain the approval of the Board prior to the acquisition of any land for
recreational purposes, the Council’s action was null and void. He also claimed that
the Board had violated the Open Meetings Act.
On that same day, the Board of Parks and Recreation held another
regularly scheduled meeting, at which Mr. Zseltvay was present. Prompted in part by
a letter from Erika Geetter which pointed out the deficiency in the minutes of the
earlier meeting, the Board took the action which is described in the minutes of the
January 2 meeting as follows:
GRASSMERE WILDLIFE PARK UPDATE
It was also noted that during the April 1995 Park Board
meeting the sale of the Grassmere property to Metro as well
as the proposed management agreement for the running of
the park were discussed by the Board. However the April
minutes do not reflect the action taken by the Board to accept
the Grassmere Property and proceed with the acquisition.
Upon motion of Ms. Jones, seconded by Mr. Fossick, the
Board unanimously accepted and approved the acquisition of
Grassmere. The Board further resolved that the minutes of
the April 1995 meeting should be amended to reflect the Park
Board’s approval.
After a hearing on Mr. Zseltvay’s complaint, the trial court found that the
Board had corrected any technical mistakes relating to its meeting of April 4, 1995,
and dismissed the complaint for failure to state a claim upon which relief may be
granted. The plaintiff subsequently appealed.
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On January 6, 1997, this Court filed an opinion which affirmed the trial
court in part and reversed it in part. We found that Mr. Zseltvay lacked standing to
challenge the Metro Council’s purchase of the Grassmere property, because he did
not allege any personal interest in the property, or that he would suffer any damages
or injuries from the completion of the transaction “different in character or kind from
those sustained by the public at large.” Quoting from Badgett v. Rogers, 436 S.W.2d
292, 294, 222 Tenn. 374, 379 (1968).
We also held that the provision of the Metro Charter which requires a
recommendation by the Board prior to the acquisition of property did not apply to the
transaction in question, because it specifies only acquisition by condemnation and
acceptance of gifts of land, but does not mention purchase without condemnation,
which was the transaction authorized by the Council resolution. See Metro Charter
Sec. 11.1002(5). We accordingly affirmed the trial court’s dismissal of Mr. Zseltvay’s
claim against the Metro Council.
However we noted that Tenn. Code Ann. § 8-44-106 of the Open
Meeting Act gives the courts jurisdiction to enforce the Act “upon application of any
citizen of this state.” Thus there was no question of standing to prevent Mr. Zseltvay
from pursuing his action against the Board of Parks and Recreation, and we reversed
that portion of the trial court’s order that dismissed his claim against the Board for
violating the Act.
On remand, the trial court heard evidence from four witnesses including
Mr. Zseltvay, after which it again dismissed his claim. In its findings of fact and
conclusions of law, the court found that the Board fully discussed the subject of the
acquisition of the Grassmere Wildlife Park property at its meeting of April 4, 1995; that
the minutes of that meeting do not clearly reflect the Board’s vote of approval of the
acquisition of the Grassmere property; and that the meeting of January 2, 1996 was
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an open meeting pursuant to the Act, at which the Board cured any technical violation
relating to the earlier meeting. The present appeal followed.
II.
The policy behind the Public Meetings Act is stated clearly and simply
in Tenn. Code Ann. § 8-44-101: “The general assembly hereby declares it to be the
policy of this state that the formation of public policy and decisions is public business
and shall not be conducted in secret.” To this end, other provisions of the Act require
that meetings of any governing body be open to the public, Tenn. Code Ann. § 8-44-
102, that adequate public notice be given of the regular and special meetings of
governmental bodies, Tenn. Code Ann. § 8-44-103, that the minutes of any such
meeting be promptly and fully recorded, and be open to public inspection, Tenn. Code
Ann. § 8-44-104(a), and that all votes of governmental bodies be public, Tenn. Code
Ann. § 8-44-104(b).
The chief violation of the Act alleged by the appellant involves Tenn.
Code Ann. § 8-44-104(a) which reads in its entirety as follows:
(a) The minutes of a meeting of any such governmental
body shall be promptly and fully recorded, shall be open to
public inspection, and shall include, but not be limited to, a
record of persons present, all motions, proposals and
resolutions offered, the results of any votes taken, and a
record of individual votes in event of roll call.
The appellee admits that it failed to fully record the minutes of its
meeting of April 4, 1995, but insists that an open vote was taken in accordance with
the Act, that the failure to record it was inadvertent, and that the error was corrected
by its subsequent modification of the minutes on January 2, 1996. As we stated
above, the trial court issued findings of fact and conclusions of law that were
consistent with the appellee’s theory. The trial court stated that any violation of the
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Open Meetings Act on the part of the Board was a “technical violation”, and a
“violation . . . of form rather than substance.“
III.
Our review of the findings of fact of the trial court is governed by Rule
13(d) of the Rules of Appellate Procedure, which states that such findings shall be
accompanied by a presumption of correctness, unless the preponderance of the
evidence is otherwise. Thus, we must affirm the court’s finding that the Board fully
discussed and voted upon the recommendation as to the acquisition of Grassmere,
unless the evidence preponderates otherwise.
Three witnesses who were present at that meeting testified at trial on
September 2, 1997. Jim Fyke, the Director of the Board of Parks and Recreation,
testified that there had been an open and full discussion of the acquisition at the April
1995 meeting, but he could not swear that there was a vote taken, because he did not
remember. Edwin Bryan, a Board member, stated that he could not at all remember
what happened at that meeting. Edward Fossick, another Board member, testified
that a vote was taken to forward the Board’s recommendation to the Metro Council for
their approval of the acquisition.
While the issue is not free from doubt, we cannot say that the evidence
preponderates against the factual findings of the trial court, in view of the testimony
presented, and considering the long interval between the meeting in question and the
time of trial.
The trial court’s conclusions of law, as opposed to its findings of fact, are
reviewed on appeal with no presumption of correctness. Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87 (Tenn. 1993); Jahn v. Jahn, 932 S.W.2d 939 (Tenn. App.
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1996). The appellant argues, correctly we believe, that the Act does not make a
distinction between technical and substantive violations of its provisions. He then
urges us to impose all the sanctions required by the Act for a violation which the trial
court acknowledged to have occurred.
The appellant cites us to the case of Neese v. Paris Special School
District, 813 S.W.2d 432 (1990) for the proposition that the action taken by the Board
at its meeting of January 2, 1996 was not adequate to correct its earlier violation of
the Act. In the Neese case, a quorum of the members of the Board of Education of
the Paris, Tennessee Special School District gathered for a retreat at a Kentucky
resort with the Superintendent of the District. At the gathering, they discussed at
length the issue of “clustering” which involved the Board’s organization of the schools,
and which was of great public interest. Though a local newspaper and a radio station
had reported on plans for the upcoming Kentucky retreat, the public was never
notified that clustering would be discussed.
At the next regularly scheduled meeting of the Board, the
Superintendent was instructed to prepare a clustering plan for the upcoming school
year, and at the following regular meeting the Superintendent’s plan was adopted by
the Board. The plaintiffs claimed that the Kentucky gathering was in violation of the
Open Meetings Act, and that the Board’s subsequent decision on clustering should
be voided, because it was based upon deliberations in which the public played no
part.
The trial court found that the Board did not violate the Act. On appeal,
this court reversed, finding that the Kentucky gathering had to be considered a
meeting under the Open Meetings Act, and that the public was not given adequate
notice pursuant to the Act. We held, however, that the clustering plan did not have
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to be voided, because prior to its adoption it was subjected to new and substantial
consideration in a public forum. The court stated that,
“We do not believe that the legislative intent of this
statute was forever to bar a governing body from properly
ratifying its decision made in a prior violative manner.
However, neither was it the legislative intent to allow such a
body to ratify a decision in a subsequent meeting by a
perfunctory recrystallization of its earlier action.”
813 S.W.2d at 436.
The appellant argues that the actions taken in the instant case during
the Board’s January 2, 1996 meeting involved just such a “perfunctory
recrystallization” of its earlier action, and that the Board, therefore did not properly
ratify its earlier decision in accordance with the dictates of Neese, supra.
If, however, we accept the trial court’s finding (which we do) that the
question of the acquisition of Grassmere received a full, fair and open hearing
pursuant to the Act at the meeting of April 4, 1995, then the Board’s previous decision
was not made in a violative manner. The Board performed a valid and necessary
remedial action by subsequently amending its minutes, and it was not obligated to
debate the question afresh before doing so. Nonetheless, we agree with the appellant
that strict compliance with the Act is a necessity if it is to be effective, and we must
continue our inquiry by examining the remedies available for its violation.
IV.
Remedies for violation of the Open Meetings Act are found in the Act
itself. Tenn. Code Ann. § 8-44-105 states in relevant part that “[a]ny action taken at
a meeting in violation of this part shall be void and of no effect . . . .” Another section,
Tenn. Code Ann. § 8-44-106 reads:
(c) The court shall permanently enjoin any person
adjudged by it in violation of this part from further violation of
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this part. Each separate occurrence of such meetings not
held in accordance with this part constitutes a separate part.
(d) The final judgment or decree in each suit shall state
that the court retains jurisdiction over the parties and subject
matter for a period of one (1) year from date of entry, and the
court shall order the defendants to report in writing
semiannually to the court of their compliance with this part.
While the remedies of Tenn. Code Ann. § 8-44-105 and 106 are not
meant to be mutually exclusive, Tenn. Code Ann. § 8-44-105 appears to be
inapplicable to this case.
The sanction of Tenn. Code Ann. § 8-44-105 applies to “[a]ny action
taken at a meeting in violation of this part,” and it is at least arguable that the failure
to include an account of the vote in the subsequently-published minutes of the April
4 meeting was not an action taken at that meeting. The appellant acknowledges that
there had been adequate notice of the meeting, and that it was open to the public.
We thus see no reason in law or in equity to declare the action void.
On the other hand, Tenn. Code Ann. § 8-44-106 appears to supply a
remedy appropriate to the circumstances of this case. Though the appellee argues
that imposition of sanctions would have no purpose other than to embarrass the
Board, we do not agree. The Legislature obviously felt that the use of injunction and
the application of judicial oversight to the activities of a governmental body in violation
of the Act was the best guarantee of subsequent compliance. We therefore direct the
trial court to impose the above-mentioned sanctions upon the Board in accordance
with §§ 8-44-106(c) and (d).
Finally, we must note that although the appellant’s brief focused on his
claim against the Board of Parks and Recreation, his attorney expressed at oral
argument his client’s hope that a favorable ruling on those questions could somehow
be bootstrapped into a reversal of this court’s rejection of his claim against the Metro
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Council. We must therefore reiterate our earlier ruling: the appellant failed to
demonstrate that he has standing to challenge Metro’s contract to purchase
Grassmere. That ruling has become the law of the case by virtue of the appellant’s
failure to appeal it to the Supreme Court, and it cannot be reversed.
V.
The order of the trial court is reversed in part and affirmed in part.
Remand this cause to the Circuit Court of Davidson County for further proceedings
consistent with this opinion. Tax the costs on appeal to the Metropolitan Government
of Nashville and Davidson County.
_________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
DON ZSELTVAY, )
)
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9710-CV-00587
VS. )
) Davidson Circuit
) No. 96C-13
METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON ) Affirmed in Part; Reversed
COUNTY, TENNESSEE, ) in Part; and Remanded
)
Defendant/Appellee. )
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Circuit Court of Davidson County, briefs and argument of counsel; upon consideration
whereof, this Court is of the opinion that the trial court committed reversible error by
dismissing the plaintiff’s complaint in its entirety, thus foreclosing the possibility of any
judicial remedy for an admitted violation of the Public Meetings Act. In all other
respects, the judgment of the trial court is affirmed.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and adjudged by this Court that the judgment of the trial court be reversed in
part and affirmed in part. The cause is remanded to the Circuit Court of Davidson
County for further proceedings in accordance with the opinion filed herein and for the
collection of the costs accrued below.
Costs of this appeal are taxed against the Metropolitan Government of
Nashville and Davidson County for which execution may issue if necessary.
________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
________________________________
BEN H. CANTRELL, JUDGE
________________________________
WILLIAM C. KOCH, JR., JUDGE