Spradlin v. City of Fulton

WILLIAM RAY PRICE, Jr., Judge.

This case involves a series of closed meetings conducted by the city council of Fulton in connection with a proposal by a private investment group to purchase land and develop a public golf course to be financed *257through neighborhood improvement bonds. The trial court found that: 1) the city council violated section 610.021(2) because the closed meetings did not relate to the leasing of real estate by a public governmental body; 2) an award of attorney’s fees was not warranted because the city council did not purposely violate the open meetings law; and 8) an injunction enjoining the city council from closing future meetings concerning the golf course is authorized by section 610.030, RSMo. We affirm.

I.

Defendant City of Fulton, Missouri, is a municipal corporation organized as a constitutional charter city. Defendant Robert Fisher, Jr., is the city’s mayor. Defendant Michael Miller was the director of administration for the city. Defendants Floyd Win-ingear, Dorothy Reifsteck, Dale Brady, Tom Harris, Steve Moore, Michael West, and Mike Luebbert were members of the city council at all relevant times. Plaintiff James Thomas Spradlin is a citizen and resident of the city.

The city of Fulton had been interested in constructing a public golf course for several years. However, a general obligation bond issue for the construction of a golf course was rejected by Fulton voters in February 1993. In 1994 an investment group, Calla-way County Golf Partners, L.L.C. (CCGP), submitted a proposal to the city through Mike Miller concerning the golf course. According to the proposal, CCGP would purchase land from a third party and develop the golf course and a housing subdivision surrounding the course. The city’s role in the proposal was to assist in negotiating the real estate transaction and to finance the development of the golf course and related facilities through $3.1 million in neighborhood investment district bonds. The finane-ing arrangement included the lease of the golf course by the city. The proposal also required the city to annex the property, make any necessary rezoning changes, provide utilities to the golf course and residential area, construct and pave a county road to the residential entrance, share half the cost of a new deep well, and assume 100% of the ongoing maintenance of the well. Under the golf course lease, CCGP would manage the course, receive all profits, and upon repayment of the bonds CCGP would own the course. Mr. Miller presented the proposal to the city council in a closed meeting on May 24,1994.

Between May 24, 1994, and February 14, 1995, the city council conducted thirteen closed meetings concerning the golf course proposal. For each closed meeting the city council stated that the meeting was “to discuss or deal with lease, purchase, or sale of real estate” pursuant to section 610.021(2), RSMo. The golf course proposal was discussed in varying degrees of specificity at the closed meetings. Only in the minutes of the first closed meeting of May 24, 1994 was the term “lease” expressly stated.1 In the remaining meetings the minutes reflect that the council’s discussions centered around the progress of the negotiations between CCGP and the landowner, the city’s plan to use municipal bonds to finance the construction of the golf course and its facilities, and the city's other commitments relating to the proposal.

CCGP successfully purchased the property on February 6, 1995. Shortly thereafter, the property was annexed into the city by ordinance and a portion of the property was established as the Fulton Golf Course Neighborhood Improvement District. On May 31, 1995, the city enacted an ordinance authorizing the issuance of $3.1 million of taxable *258general obligation neighborhood improvement district bonds for the purpose of financing the acquisition and construction of improvements, buildings, and equipment on the property for use as a public golf course. Lastly, the city entered into a written ground lease and management agreement with CCGP.

As a result of the golf course transaction, James Spradlin, a Fulton resident and taxpayer, sued the city of Fulton and its council. Spradlin’s petition contained three counts. Count I involved the legality of a neighborhood improvement district formed at the site of the proposed golf course. Count II involved the legality of the financing of the neighborhood improvement district. Counts I and II were disposed of by a second amended judgment entered by the circuit court after the matter was remanded in Spradlin v. City of Fulton, 924 S.W.2d 259 (Mo. banc 1996). The remaining count, at issue in this appeal, concerns whether the city council violated the Missouri Open Meetings Act, section 610.021(2), RSMo.

The circuit court concluded that the city and its council violated section 610.021(2) of the open meetings law by discussing the proposed golf course in closed executive meetings. The circuit court also issued an injunction enjoining the city council from closing future meetings and records pertaining to the golf course unless authorized by section 610.021. Lastly, the circuit court denied Spradlin’s request for attorney’s fees because it determined that the city and its council did not purposely violate the provisions of chapter 610. Spradlin and the city appealed.

II.

The first issue before us is whether the city council violated section 610.021(2) of the Open Meetings Act by conducting closed meetings regarding the golf course project.

A.

The relevant portion of section 610.021(2) provides:

Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following: ... (2) leasing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration therefor. (Emphasis added).

The city contends that the meetings at issue qualified for closure under section 610.021(2) because the discussions “related to” a potential lease by the city of the golf course after the land was purchased by CCGP and developed through financing by the city.

Spradlin asserts that the meetings did not qualify for closure because the proposal was really a financing agreement disguised as a lease and because the specific terms of the lease were not discussed at the closed meetings. Instead, the meetings concerned CCGP’s progress in acquiring the land and the financing of the development of the course through municipal bonds. Spradlin contends that a narrow reading of the phrase “relates to” is mandated by the open meetings law and that an expansive reading of section 610.021(2) would be required to sustain the city’s position.

B.

“It is a basic rule of statutory construction that words should be given their plain and ordinary meaning whenever possible. Courts look elsewhere for interpretation only when the meaning is ambiguous or would lead to an illogical result defeating the purpose of the legislature.” State ex rel. Maryland Heights Fire Protection District v. Campbell, 736 S.W.2d 383, 387 (Mo. banc 1987). The phrase “relates to” is ambiguous because it is capable of being read differently by reasonably well-informed individuals. State v. Meggs, 950 S.W.2d 608, 610 (Mo.App. 1997). Resort to statutory construction is necessary. The ultimate guide in construing an ambiguous statute is the intent of the legislature. Missouri Rural Elec. Co-op. v. City of Hannibal, 938 S.W.2d 903, 905 n. 4 (Mo. banc 1997); Connor v. Monkem, 898 S.W.2d 89, 90 (Mo. banc 1995).

The legislature’s intent with respect to section 610.021 is expressly stated in the Mis*259souri open meetings law. “Missouri’s public policy favors open meetings.” City of St. Louis v. City of Bridgeton, 806 S.W.2d 717, 718 (Mo.App.1991); see also, Cohen v. Poelker, 520 S.W.2d 50, 54 (Mo. banc 1975). “It is the public policy of this state that meetings, records, votes, actions and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 601.010 to 610.028 shall be liberally construed and their exceptions strictly construed to promote this public policy.” Section 610.011, RSMo.

Section 610.021(2) is an exception to the open meetings law because it authorizes closed meetings when Missouri law and public policy expressly favor open meetings. Because it is an exception, section 610.011(1) mandates that the phrase “relates to” be strictly construed to ensure that the workings of government be open to the scrutiny of the public. A strict reading of section 610.021 requires a public governmental body to satisfy two prongs to qualify for closure. First, a closed meeting must relate directly to “the leasing, purchase, or sale of real estate by a public governmental body.” Second, the public governmental body must demonstrate that “public knowledge of the transaction might adversely affect the legal consideration therefor.”2 Section 610.022.3 provides that meetings closed pursuant to section 610.021(2) “shall be closed only to the extent necessary for the specific reason announced to justify the closed meeting” and that “public governmental bodies shall not discuss any business in a closed meeting which does not directly relate to the specific reason announced to justify the closed meeting.” Section 610.027.2 provides that the public governmental body and its members bear the burden of persuasion to demonstrate compliance with sections 610.010 to 610.026.

C.

The evidence indicating what was discussed at the meetings in question includes minutes from the closed meetings and testimony from the city clerk and city administrator. It is sketchy at best. The minutes from the closed meetings disclose that the golf course proposal, including the housing development, was discussed in varying detail at all of the closed meetings. At all times, a lease of the golf course by the city was contemplated. The proposal ultimately did result in a lease and management agreement between CCGP and the city.

Only the minutes of the May 24, 1994 meeting actually refer to the lease. There is no indication, however, that the specific terms, negotiation, or price of the lease were discussed. Minutes of the other closed meetings do not even mention the lease and indicate only a general discussion of the project as a whole, without specific focus upon the lease or the legal considerations thereof. For example, minutes of the June 14, 1994 meeting provide that “Mike and Mayor Fisher reported on the progress of the proposed golf course project by saying that Jerry Loomis of St. Louis and his group of investors are planning on buying the land before the end of summer.” The minutes of the August 9, 1994 meeting provide that “Mayor Fisher addressed the letter that was distributed to all council members on the discussion notes for the golf complex considerations. He asked all council members to read through this hand-out and at the next council meeting on 8/23/94, be ready to discuss with himself and Mike.”

The city clerk testified that the discussions at the closed meetings involved the financing and construction of the golf course and the possible lease of the course by the city. The city administrator testified that the “sale or purchase or lease of property was discussed” at the closed meetings. This testimony fails to specify which matter was discussed and whether the “sale or purchase or lease of property” was by the city. Later, the city administrator testified that he would need to refer to the minutes to determine whether the council discussed the city’s lease of the golf course in closed meetings. Clearly, the *260testimonial evidence is too vague to be dis-positive.

Based on the evidence, the city has failed to meet its burden of persuasion to demonstrate compliance with the requirements of the law. Rather, the evidence shows that the closed meetings included matters beyond the specific reason announced to justify closure, that is, the “lease, purchase, or sale of real estate” by the city. While the discussions at the closed meetings may have “related to” the city’s leasing of the golf course in the broadest sense, these discussions did not qualify for closure because they did not “directly relate to the specific reason announced to justify the closed meeting.” There are no exceptions in section 610.021 for discussing a real estate transaction between a private developer and a landowner, for discussing the developer’s plans for the real estate, or for discussing the financing through municipal bonds of a development on real estate not yet purchased.3

There is reference in the July 26, 1994 minutes to “negotiations to buy the property from John Danuser for $450,000.00,” and the November 8, 1994 minutes provide that “on Thursday morning the closing should be done on the Danuser property.” The city administrator testified that “if we did discuss it openly and the city was involved, we were certain the price of the land would escalate.” These references indicate items that might justify closed meetings had the purchase of the property been by the city. However, the property was purchased by CCGP, not the city. The exception in section 610.021(2) applies only to the leasing, purchase, or sale of real estate “by a public governmental body” and even then, only if “public knowledge of the transaction might adversely affect the legal consideration therefor.”

III.

The second issue before us is whether attorney’s fees should have been assessed against the members of the Fulton city council for violating the open meetings law. Section 610.027.3 controls this issue, stating:

Upon a finding by a preponderance of the evidence that a member of a public governmental body has purposely violated sections 610.010 to 610.027, the member may be subject to a civil fine in the amount of not more than five hundred dollars and the court may order the payment by such member of all costs and reasonable attorney fees to any party, successfully establishing a violation of sections 610.010 to 610.026.

The trial court concluded that the city council did not purposely violate the law and declined to award attorney’s fees to Spradlin. The trial court’s ruling is consistent with Tipton v. Barton, 747 S.W.2d 325, 332 (Mo.App.1988), which held that “the Open Meetings Act authorizes the award of costs and reasonable attorney’s fees where the court finds a public governmental body has purposely violated the Act.”4 Spradlin challenges this interpretation in a number of ways.

A.

Spradlin first argues that the last phrase of the statute supports a reading that attorney’s fees may be assessed for non-purposeful violations. The last phrase of section 610.027.3 provides that “the court may order the payment by such member of all costs and reasonable attorney’s fees to any party successfully establishing a violation of sections 610.010 to 610.026.” Specifically, Spradlin argues that this phrase speaks only to a “violation” not a “purposeful violation.”

Spradlin, however, ignores the greater portion of the statute that sets these words in context. The statute clearly distinguishes between individuals against whom attorney’s fees may be assessed and individuals to whom fees may be awarded. The statute first focuses upon individuals against whom a fine or attorney’s fees may be assessed, that is, “a member of a public governmental body *261[who] has purposely violated sections 610.010 to 620.027.”5 As to such an individual, the statute provides “the member may be subject to a civil fíne ... and” the court may order “such member” to pay costs and attorney’s fees. (Emphasis added.) Both the words “the” and “such”6 obviously refer back to the member who purposely violated the statute. The conjunctive “and” makes clear that it is the same individual against whom the court may assess either or both penalties. No language in the statute allows for an assessment of the fine, costs, or attorney’s fees against anyone else, let alone any member who has not “purposely violated” the statute.7

In contrast, the language Spradlin points to does not refer to or identify the individual against whom the attorney’s fees may be assessed. It refers only to the individual to whom they may be awarded. This language does not precisely mirror the language designating against whom the award might be assessed, and here again we must acknowledge ambiguity. However, the statute simply provides the trial court no authority to assess costs and fees against anyone other than “a member of a public governmental body [who] has purposely violated [the law],” regardless of the manner in which the recipient is described.

B.

Second, Spradlin urges that the policy behind chapter 610 supports his reading of section 610.027.3 and requires a finding that an award of attorney’s fees should be the rule rather than the exception. He contends that members of the public will be less likely to challenge the actions of a public governmental body if faced with expensive litigation and attorney’s fees.

This may be so and the legislature might well consider the issue. However, “courts must give effect to the language as written.” Kearney Special Road Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993). The plain language of the statute only authorizes assessment of attorney’s fees against an individual upon a demonstration of a “purposeful” violation of the law. “There is no room for construction even when a court may prefer a policy different from that enunciated by the legislature.” Id.; see also Bethel v. Sunlight Janitor Service, 651 S.W.2d 616, 620 (Mo. banc 1977) (issues of public policy must be addressed to the General Assembly).

Moreover, in many situations, statutes allowing for an award of attorney’s fees are “penal in nature and must be strictly construed.” Frisella v. Reserve Life Ins. Co. of Dallas, Tex., 583 S.W.2d 728, 735 (Mo.App. 1979); Hay v. Utica Mutual Ins. Co., 551 5.W.2d 954, 957 (Mo.App.1977); Lummus v. Shoney’s of LaPlace, 713 So.2d 1290 (La.App. 1998); State Farm Mutual Automobile Ins. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (Ark.1994); Lee McGuire 1900 Co. v. Inventive Indus., 566 S.W.2d 95 (Tex.Civ.App. 1978); see also Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 939 (Mo.App.1993); Kansas City Star Co. v. Shields, 771 S.W.2d 101,104 (Mo.App.1989). Statutes imposing a penalty are intended to punish the wrongdoer and deter others.8 See, e.g., Shields, 771 S.W.2d at 104.

*262Spradlin’s argument that the express statement that “Missouri’s public policy favors open meetings” mandates an assessment of attorney’s fees for any violation is misplaced. That policy relates directly to the portions of the law' concerning the scope of the law’s application to public meetings. We have given this policy full force by strictly construing the ambiguous exceptions provided by section 610.021(2). Our strict construction of section 610.021(2) mandates the broadest possible application of the law, limiting what meetings may be closed and what may be discussed in closed meetings. By contrast, the policy relates only indirectly, if at all, to the attorney’s fees penalty provided in section 610.027.3. As mentioned before, the contrary policy requiring strict interpretation of penal statutes controls. This is not an issue of how broadly the law should be applied, only the harshness of the penalty. Limiting awards of attorney’s fees to those instances where a “purposeful” violation is demonstrated does not render the law meaningless. Those violating the law will still be subject to having their actions voided under section 610.027.4, to an injunction barring future violations under section 610.030, and to the social and political consequences of having been found to have broken the law.

C.

Finally, Spradlin asserts that if a “purposeful” violation is necessary for an award of attorney’s fees, he has satisfied this standard by demonstrating that the city intended to engage in the conduct that resulted in the violation. This interpretation, however, fails to give effect to the word “purposely” as used in section 610.027.3.9

Traditional rules of statutory construction require every word of a legislative enactment be given meaning. Staley v. Missouri Director of Revenue, 623 S.W.2d 246, 250 (Mo. banc 1981). Accepting Spradlin’s assertion that to “purposely” violate the statute merely requires engaging in the prohibited conduct renders the word “purposely” entirely meaningless. It would impose strict liability for any violation of section 610.027.3. Had this been the legislature’s intent it would not have included the word “purposely” in the section. This indicates the legislature’s intent that something more is required before subjecting individual members of public bodies to liability that could amount to tens of thousands of dollars.

The word “purposely” must be given its ordinary and usual meaning. See section 1.090, RSMo; Abrams v. Ohio Pacific Exp., 819 S.W.2d 338, 340 (Mo. banc 1991). The ordinary and usual meaning of a word is derived from the dictionary. Id. “Purposely” is defined as “intentionally; designedly; consciously; knowingly. Act is done ‘purposely’ if it is willed, is product of conscious design, intent or plan that is to be done, and is done with awareness of probable consequences.” BlacK’s Law DICTIONARY 1236 (6th ed.1990). “Purpose” is defined as “that which one sets before him to accomplish or attain; an end, intention, or aim, object, plan, project. Term is synonymous with ends sought, an object to be attained, an intention, etc.” Blaok’s Law DICTIONARY 1236 (6th ed.1990).

The word “purposely” when taken in its ordinary and usual sense makes clear that more than a mere intent to engage in the conduct resulting in the violation is necessary. To purposely violate the open meetings law a member of a public governmental body must exhibit a “conscious design, intent, or plan” to violate the law and do so “with awareness of the probable consequences.”10

Here, the city contends that the thirteen closed meetings “related to” the leasing of real estate by a public governmental body. As previously stated, the phrase “relates to” *263is ambiguous. Prior to our holding today stating that a strict and narrow reading of the exceptions to the open meetings law is required, a reasonable person could have concluded that the meetings qualified for closure and that the meetings, in a broad and general sense, “related to” the leasing of the golf course by the city. Engaging in conduct reasonably believed to be authorized by statute does not amount to a purposeful violation. Moreover, the testimony of the city administrator indicated that “if we did discuss it openly and the city was involved, we were certain the price of the land would escalate.” 11 Although this testimony is not sufficiently direct to meet the city’s burden of proof to justify closure of the meeting, it is sufficient to allow a finding by the trial court that those involved reasonably believed their behavior was authorized by statute.

Our standard of review requires that we sustain a trial court’s decision unless it is against the weight of the evidence or there is no substantial evidence to support it. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The power to set aside a trial court’s judgment on the ground that it is against the weight of the evidence should be exercised “with caution and with a firm belief that the decree or judgment is wrong.” Id. Despite the violation of the law, the evidence allowed a finding by the trial court that a conscious design, intent, or plan to violate the open meetings law by the city council was not established. While we may have weighed the evidence differently and arrived at a different conclusion than the trial court, we must adhere to our standard of review and are not free to substitute our own judgment for that of the trial court. See State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990).

Hereafter, however, members of governmental bodies are on notice that the provisions of the open meetings law will be strictly enforced and that our trial courts will have less latitude to avoid a finding of a purposeful violation.

rv.

The last point on appeal is whether the circuit court erred when it enjoined the city council from conducting closed meetings in the future and from closing future records concerning the golf course, unless authorized by section 610.021. When the circuit court entered the injunction, section 610.030 provided that “[t]he circuit courts of this state shall have the jurisdiction to issue injunctions to enforce the provisions of sections 610.100 to 610.115.” Injunctive relief was not expressly authorized for a violation of section 610.021. However, effective August 28,1998, the legislature repealed section 610.030 and enacted a new section 610.030 in its place. (H.B. No. 1095). The new version of section 610.030 provides that “the circuit courts of this state shall have the jurisdiction to issue injunctions to enforce the provisions of sections 610.010 to 610.115.” The city does not allege that any attempt to enforce the injunction was made prior to the amendment of the statute. Accordingly, the question of whether the injunction was authorized under the previous statutory language is moot. Bank of Washington v. McAuliffe, 676 S.W.2d 483, 487 (Mo. banc 1984). As the statute now authorizes injunctive relief, no claim can exist that the trial court’s order exceeds its jurisdiction.

The judgment of the trial court is affirmed.

LIMBAUGH, COVINGTON and WHITE, JJ., concur. HOLSTEIN, J., concurs in separate opinion filed.

LIMBAUGH, J., concurs in opinion of HOLSTEIN, J.

WOLFF, J., concurs in part and dissents in part in separate opinion filed. BENTON, C.J., concurs in opinion of WOLFF, J.

. The relevant portion of the May 24, 1994, closed meeting minutes provide that:

... An investor group consisting of sport figures are interested in investing their cash in the community by building the golf course, leasing it to us for one year at a time, at the end of each year, we could walk away and not have to renew. Of course all profits would go to the investors. Mike stated that at first, it seemed like a great idea, but after further study, he was not as sure. Fulton has an excellent bond rating and Mike and Mayor Fisher do not want to risk that. Another strong possibility would be an architect from St. Louis, presenting an offer to Fulton by midsummer. Mike asked the council what its feelings were on this type of proposal. The council unanimously agreed to sit back, listen and proceed with studies. (Emphasis added.)

. Because we find that the meetings exceeded the scope of section 610.021(2), we need not address whether public knowledge of the transaction might have adversely affected the legal consideration involved in the golf course project.

. Other Missouri cases applying the provisions of section 610.021(2) support this conclusion. See State ex rel. Birk v. City of Jackson, 907 S.W.2d 181 (Mo.App.1995); City of St. Louis v. City of Bridgeton, 806 S.W.2d 717 (Mo.App.1991).

. Compare to Charlier v. Comm, 794 S.W.2d 676 (Mo.App.1990), and Deaton v. Kidd, 932 S.W.2d 804 (Mo.App.1996), where the use of the word “purposely" was not addressed.

.Section 610.028 provides that a public governmental body may provide for the legal defense of any member charged with violating sections 610.010 to 610.030. That section, however, fails to address whether the public governmental body may reimburse the member for any fines, costs or fees that the member may be ordered to pay. It is interesting that section 610.027.3 provides that fines, costs and fees may be assessed against "a member” of a public governmental body. It does not provide that they be assessed against the governmental body itself. We need not address whether these sections imply that payment of costs and fees assessed against a member of a governmental body pursuant to section 610.027.3 may not be reimbursed by the governmental body.

. Such is defined as "of that kind, having particular quality or character specified, identical with, being the same as what has been mentioned. Alike, similar, of the like kind. 'Such' represents the object as already particularized in terms which are not mentioned, and is a descriptive and relative word, referring to the last antecedent.” Black's Law Dictionary 1432 (6th ed.1990).

. Under Spradlin’s interpretation, even a member of a governmental body who voted against closure might be assessed attorney's fees.

. Section 610.027.3 allows for a maximum civil fine of $500 while no limit is placed on the amount of attorney’s fees that may be assessed. It would be illogical to assume that the General *262Assembly would impose a greater penalty for a lower standard of wrongdoing.

. In making this argument, Spradlin relies on both Charlier v. Comm, 794 S.W.2d 676 (Mo.App.1990), and Deaton v. Kidd, 932 S.W.2d 804 (Mo. App.1996). However, in both of these cases the use of the word "purposely" was not addressed.

. In Buckner v. Burnett, 908 S.W.2d 908, 911 (Mo.App.1995), the western district stated that "a public official’s intentionally forestalling production of public records until the requestor sues would be a purposeful violation of Chapter 610 and would be subject to a fine and reasonable attorneys fees.”

. It is reasonable to assume that if the purchaser of the property would have to pay a higher price, the city’s lease payments would increase as well.