Cheyenne Newspapers, Inc. v. Building Code Board of Appeals

KITE, Justice,

specially concurring,

in which HILL, J., joins.

[120] I write separately to dispel any misperception that this decision renders meaningless the public deliberation provisions of the Wyoming Public Meetings Act (the Act).

[121] I agree that the Board is a governing body covered by the Act and its meeting in executive session was illegal. Any action, including deliberations, taken during that meeting was void. The record does not indicate what action was taken, if any, during the illegal meeting. However, the Board ultimately took action and adopted its findings and conclusions in a public meeting and no provision of the Act renders void agency action taken in public that may have been discussed and/or acted upon in an illegal private meeting. We faced this same conundrum in Mayland v. Flitner, 2001 WY 69, 28 P.3d 838 (Wyo.2001), and concluded that the later action was not void. However, in that case, the record at least indicated that the only action taken in executive session was discussion of the matter and directing the county attorney to prepare findings and conclusions that could be addressed "prior to the County Commissioners making a final decision." Id., 129, 28 P.3d at 848. In contrast, the Board in this case convened the executive session for the purpose of deliberating, and the record does not indicate what occurred during the closed session.

[122] The legislature has stated, in clear and unequivocal language, that agencies are prohibited from deliberating behind closed doors. However, it has not adopted a statutory prohibition of public ageney action taken after a closed door meeting. If we were to conclude an agency's ultimate action was void because it had been previously discussed in private, we would be going beyond what the legislature has provided. In addition, that interpretation would essentially prevent an agency from ever being able to correct a violation of the Act and, thus, render it unable to act at all. So, are the citizens of this state left without a remedy when recalcitrant agencies simply refuse to follow the statute so long as they cover their tracks with a public announcement of their action? The statutes provide otherwise. Specifically, any member of an agency who either takes action, or conspires to take action, that violates the requirements of the Act is guilty of a misdemeanor and subject to a $750 fine. Wyo. Stat. Ann. § 16-4-408(a) (LexisNexis 2009). Any member who remains in a meeting where a knowing violation oceurs is also guilty unless the minutes of the meeting record that member's objection. Id. Further, if citizens are aware in advance of an agency's intent to violate the Act, they may apply to the courts for an injunction preventing such violation. W.R.C.P. 65. Cheyenne Newspapers attempted to obtain such a remedy in this case, but the agency acted before that could be accomplished.

[123] The Act has been in place for over thirty years and agencies throughout the state, in matters arguably of much greater public import than those faced by this Board, have complied with its simple requirement to conduct the business of the public in the open. Yet, for some reason, the Board concluded it was exempt from these requirements and even went so far as to adopt regulations which purported to provide it with authority to ignore the statute and hold executive sessions whenever it chose.5 The Board also ignored the city attorney's request that it conduct its deliberations in public. In the face of that direct defiance of the law, injunctive relief may well have been appropriate.

. Rules and Regulations of City of Cheyenne Building Code Board of Appeals, Chapter IV, Section 5:

All meetings and hearings at which official action is taken shall be open to the public, except for deliberations after public hearings.

Rules, supra, Chapter XI, Section 7(d):

Deliberations may be in public or private, as determined by the Board.