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

*166BURKE, Justice,

concurring in part and dissenting in part.

[124] I agree with the majority that an agency's deliberations after a contested case hearing are subject to the requirements of the Wyoming Public Meetings Act, and that the Board violated this Act when it deliberated at a closed meeting. However, I conclude that the record is insufficient to support a finding that the Board took no action during the meeting. Accordingly, I would reverse the district court's grant of summary judgment, and remand for further proceedings to resolve this genuine issue of material fact.

[125] The Wyoming Public Meetings Act provides that no "action" by a governing body of an agency shall be taken "except during a public meeting." Wyo. Stat. Ann. § 16-4-403(a) (LexisNexis 2009). The term "action" is broadly defined to include "a collective decision of a governing body, a collective commitment or promise by a governing body to make a positive or negative decision, or an actual vote by a governing body upon a motion, proposal, resolution, regulation, rule, order or ordinance." Wyo. Stat. Ann. § 16-4-402(a)(i). Any "action" not taken during a public meeting is "null and void." Wyo. Stat. Ann. § 16-4-408(3).

[1726] It is undisputed that the Board in this case met and deliberated during a closed meeting. The majority holds that the Act requires an agency to deliberate only during a public meeting, but further concludes that deliberation alone is not an "action" rendered null and void when an agency deliberates in a prohibited meeting. I may agree that this interpretation is mandated by the plain language of the Act, but I do so reluctantly because of the practical result: the Board violated the Act, but there is no meaningful remedy available for the public.

[127] More significantly, when analyzed under the appropriate standard of review, the record in this case fails to establish that the Board did not take action during its private meeting. There is no transcript or recording of the meeting. The pertinent paragraphs of the parties' Joint Statement of Undisputed Facts provide little insight into what the Board did during the meeting:

5. The Board of Appeals conducted a public contested case hearing on the appeal, in accordance with its Rules and Regulations, on June 27, 2008, during which the parties were represented by counsel, witnesses were heard, and exhibits presented. At the close of the contested case hearing, the Board of Appeals retired to deliberate in private.
6. The Board of Appeals did not meet in executive session, but rather determined that it was deliberating in its quasi-judicial role.
7. A quorum of the Board of Appeals was present for the July 2, 2008 deliberation, which was called by the proper authority. A transcript of the July 2, 2008 public meeting is attached hereto as Exhibit 1.
8. The Board of Appeals drafted its 19-page Decision and held a public meeting July 14, 2008 to discuss the Decision, which it then adopted. The transeript of that public meeting and the Decision issued by the Board of Appeals are attached hereto as Exhibits 2 and 8.

[T28] According to the transcripts of the public meetings, on July 2, 2008, the Board passed a motion "that we go into closed deliberation." Later, during the public meeting held on July 14, 2008, the hearing examiner explained that the Board "conducted a four (4) hour meeting in this matter and then we retired to deliberate." He stated that he "began to draft our written opinion" after the private deliberations. The "opinion" was nineteen pages long, was complicated enough to include twenty-eight footnotes, and dealt with difficult and controversial issues. Even so, the Board's discussion at the open meeting was quite brief, consisting almost entirely of the hearing examiner's explanation of a few select findings and conclusions in the draft decision. After this brief discussion, the Board voted unanimously to uphold the Historic Preservation Board's decision. The decision was signed immediately after the vote, with one Board member suggesting that it would be signed and finished in "like seven minutes."

[129] This information is insufficient to establish that the Board did not take any action during the closed meeting. To the *167contrary, the Board's perfunctory discussion during the public meeting, its unanimous vote on the question, and its immediate adoption of the written decision, all suggest that the Board did more than just deliberate during the closed meeting. It is fair to infer that the Board reached its decision during the closed meeting, and did little more than ratify the prior decision during the public meeting. In the language of the Act, the Board did take "action" if it reached "a collective decision of a governing body" during the closed meeting. Pursuant to the Act, such action would be null and void. See Emery v. City of Rawlins, 596 P.2d 675, 679 (Wyo.1979) (A city council may meet in private "for the purpose of discussing a subject and soliciting expert advice so long as no vote is taken nor a collective decision made.") (emphasis added).

[180] The party opposing summary judgment is entitled to the benefit of these favorable inferences. Brumbaugh v. Mikelson Land Co., 2008 WY 66, ¶ 11, 185 P.3d 695, 701 (Wyo.2008). As the majority states, "summary judgment can be sustained only when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law." Voss v. Goodman, 2009 WY 40, ¶ 9, 203 P.3d 415, 419 (Wyo.2009), quoting Wyoming Community College Comm'n v. Casper Community College Dist., 2001 WY 86, ¶ 11, 31 P.3d 1242, 1247 (Wyo.2001). Whether the Board took action during its closed meeting is certainly a material fact in this case, and is genuinely at issue given the record before us now. Accordingly, the district court's grant of summary judgment in favor of the Board cannot be sustained.