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Opinion No. 330-73

Topics:

SUNSHINE BILL.
COUNTY COUNCIL.
PUBLIC MEETINGS.

Summary conclusion

Meetings of the "committee of the whole" and subcommittees of the St. Louis County Council are "public meetings" within the meaning of Section 1(1) of Senate Bill No. 1, 77th General Assembly, First Regular Session, and thus are required to he open to the public by Section 2 of said bill.

Contents of opinion

December 18, 1973

Honorable Harold L. Volkmer
Representative, District 13
Room 310, Capitol Building
Jefferson City, Missouri 65101

Dear Representative Volkmer:

This opinion is issued in response to your recent request for an official Attorney General's opinion construing certain provisions of Senate Bill No. 1, 77th General Assembly, First Regular Session, commonly known as the "Sunshine Bill." Your opinion request reads in full as follows:

"Thomas W. Wehrle, County Counselor for St. Louis County has by his opinion of September 27, 1973, to Gerald A. Rimmel, Chairman and members of the St. Louis County Council of St. Louis Count.y stated that the provisions of Senate Bill No. 1, 77th General Assembly, First Regular Session, commonly known as the Sunshine Bill, do not require meetings of the St. Louis County Council when it is meeting as a 'Committee of the Whole' to be opened to the public, and further that subcommittee meetings of the County Council are not required by the provisions of said bill to be opened to the public. I am hereby requesting your opinion as to whether or not the provisions of Senate Bill' No. 1 as enacted by the 77th General Assembly, First Regular Session, commonly known as the Sunshine Bill, does require meetings of the St. Louis County Council when meeting as a Committee of the Whole, to be open to the public and further whether or not meetings of the sub-committees of the County Council of St. Louis County are required to be open to the public by said bill."

Section 2 of the Sunshine Bill reads as follows:

"Except as provided in section 4 of this act, and except as otherwise povided by law, all public votes shall be recorded, and if a roll call is taken, as to attribite each 'yea' and 'nay' vote, or abstinence if not voting, to the name of the individual member of the public governmental body, and all public meetings shall be open to the public and public votes and public records shall be open to the public for inspection and duplication." (Emphasis added)

Section 1(2) of the Sunshine Bill defines "public meeting"

any meeting, formal or informal, regular or special, of any public governmental body, at which any public business is discussed, decided or public policy formulated;"

"Public governmental body" is defined in Section 1(1) to mean:

". . . any constitutional or statutory governmental entity, including any state body, agency, board, bureau, commission, committee, department, division, or any political subdivision of the sta g , or any county or of any municipal government, school district or special purpose district, and any other governmental deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power;"

The St. Louis County Council is a legislative body, established by the 1968 County Charter pursuant to Article VI, Section 18, Constitution of Missouri, in which all legislative power is vested (Section 2.010, County Charter). Certain enumerated powers are granted to the Council with regard to the conduct of county business (Sections 2.180(1)-(34) and 2.190). The Council, at its regular and special meetings, casts its record votes to enact ordinances and resolutions. The enactments of the Council are subject to the approval of the Supervisor, but may be enacted over his veto by a two-thirds vote of the Council (Section 2.190).

At the outset, we note that your question apparently presumes -- and we think correctly so -- that the regular and special meetings of the full County Council are covered by the provisions of Sections 1 and 2 of the Sunshine Bill. On this point there can be no doubt. Counties, being political subdivisions of the state, are specifically included in the term "public governmental body" as defined in Section 1(1) of the Sunshine Bill and hence the regular and special meetings of the county's full ' legislative body are subject to the provisions of Section 2, which requires open meetings, open records, and open votes.

Your question, however, seeks to determine the applicability of the Sunshine Bill to meetings of the County Council's "committee of the whole" and to meetings of its subcommittees. Although the St. Louis County Charter makes no mention of the "committee of the whole" or subcommittees, we have been informed by the St. Louis County Counselor that the term "committee of the whole," as used in this sense, refers to executive sessions where the entire Council meets, whether by rule or by custom, to informally discuss public business, but at which time no official action is taken. We are also informed by the County Counselor that the Council's subcommittees, which are not empowered by the County Charter to take official action on proposed legislation, only engage in the discussion of proposals and make recommendations, which are then passed on to the Council as a whole, sitting in a duly authorized session.

Ultimately, then, the issue crystalizes into this question: Are meetings which do not include the entire membership of the governmental entity (such as subcommittees), or at which no official action is taken (such as the committee of the whole), exempt from the provisions of the Sunshine Bill requiring open meetings?

In our opinion, the plain language of Sections 1 and 2 of the Sunshine Bill requires that meetings of subcommittees of the St. Louis County Council and meetings of the Council as a "committee of the whole" be open to the public.

To begin with, courts of other states which have adopted public meeting laws similar to Missouri's Sunshine Bill have repeatedly held that such legislation, having been enacted for the public benefit, is to be liberally construed. Laman v. McCord, 432 S.W.2d 753 (Ark. 1968); Board of Public Instruction of Broward Co. v. Doran, 224 So.2d 693 (Fla. 1969); Brown v. State, 245 So.2d 41 (Fla. 1971).

Such decisions are consistent with the familiar rule of construction, frequently enunciated by Missouri courts, that statutes which introduce some new regulation or ordinance for the public good are to be considered remedial in nature . andare generally to be given a liberal construction. City of St. Louis v. Carpenter 341 S.W.2d . 786 (Mo. 1961). In B-W Acceptance Corporation v. Benack, 423 S.W.2d 215 (St.L.Ct.App. 1967), the court, at page 218, said:

". . . one of the cardinal principles of construing remedial legislation is that courts are to consider the evil sought to be cured and to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief.' DekWr v. Deimer, 229 Mo. 296, 129 S.W. 936.

As was pointed out previously, Section 2 of the Sunshine Bill requires, among other things, that aside from the exceptions detailed by Section 4 of the act or otherwise provided by law, "all public votes shall be recorded, . . . and all public meetings s Hall be open to the public . . ." (Emphasis added). "Public meeting" is defined by Section 1(2) as "any meeting, formal or informal, regular or special, of any public governmental body, at which any public business is discussed, decided or public policy formulated;" (Emphasis added). It would seem apparent from the repeated use of the words "all" and "any" that the General Assembly intended the scope of the bill to be all-inclusive. This impression is reinforced by the inclusion of "informal" as well as "formal" meetings within the bill's definition of "public meeting."

'Additionally, the term "public governmental body" as defined by Section 1(1) contains an exhaustive list of governmental entities, followed by the catch-all phrase ". . . and any other governmental deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power;". Which again leads us to the inescapable conclusion that the legislature intended that the law have a broad, sweeping application.

Nevertheless, the opinion issued by the St. Louis County Counselor takes the position that subcommittee meetings and meetings of the committee of the whole of the St. Louis County Council are not covered by the provisions of the Sunshine Bill. The opinion seizes upon the word "other" in the catch-all phrase of Section 1(1) and reasons that for any of the governmental entities specifically listed in Section 1(1) to fall within the term "public governmental body" it must be a "deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power." And since the powers of the Council's subcommittees and the committee of the whole are limited to discussion and recommendation by the provisions of the County Charter, the opinion concludes that their meetings are not meetings of a "public governmental body having rulemaking or quasi-judicial power" and therefore are not required to be open to the public. In addition, the opinion maintains that since the Council's subcommittees contain only a portion of the entire Council membership, their meetings are not meetings "of" the body within the scope of Section 2(2) which defines "public meeting" as any meeting "of any public governmental body."

It is our view that such technical arguments not only are contrary to the spirit of the legislation, but also ignore the plain language of Section 2(2). Specifically the County Counselor's contention that the ability to take formal action in a particular meeting is a statutory prerequisite, of a "public meeting" would render meaningless the specific inclusion of "informal" meetings within the definition of public meetings. Furthermore, such a construction also overlooks the fact that by the express provisions of Section 1(2) public business need only be "discussed" at such gathering to qualify it as a "public meeting"; there is no requirement that formal or official action be taken.

We cannot agree with the contention that the "catch-all " phrase in Section 1(1) which begins "and any other governmental deliberative body . . ." is to be interpreted restrictively, so as to require any constitutional or statutory governmental entity specifically listed earlier in the section to possess "rulemaking or quasi-judicial power" in order to qualify as a "public governmental body." Such a construction reverses the rule of "ejusdem generis," which states that when general words in a statute follow particular words, the. general words are to be explained and restricted by the particular. State ex rel. Rabenau v. Beckemeier, 436 S.W.2d 52 (St.L.Ct.App. 1968). Although there is some authority to the contrary, it generally has been held that subsequent general words do not explain or restrict the particular. See State v. Heinrich, 161 P. 79 (Wash. 1916).

Regardless, the ultimate guide in construing statutes is the intent of the legislature and rules of statutory construction are to be used only as aids in ascertaining that intent. Edwards v. St. Louis County, 429 S.W.2d 718 (Mo. banc 1968). Thus, keeping in mind the requirement that remedial legislation is to be liberally construed, City of St.Louisv. Carpenter, supra, it is our view that the plain intent of the legislature in employing the "catch-all " phrase of Section 1(1) was to add to or expand upon, rather than. qualify or restrict, the list of agencies, boards, bureaus, commissions, etc., previously listed. Clearly, the legislature intended to set up two categories of governmental entities upon which the statute was to operate: One consisting of all bodies, boards, bureaus, commissions, etc., specifically listed, and the other consisting of "any other governmental deliberative body" which possessed certain characteristics and which was not included in the first category.

Finally, even if it is conceded for the sake of - argument that the term "public governmental body" necessarily includes the possession of rulemaking or quasi-judicial power, it does not logically follow that subcommittee meetings or executive sessions, such as meetings of the committee of the whole, are not "public meetings." At the most, all that is required is that the "governmental entity" - in this case, the St. Louis County Council - possess rulemaking or quasi-judicial power. That being the case, "any meeting" of that governmental entity, whether it be a Council subcommittee meeting or a meeting of the committee of the whole, is required to be open to the public. Otherwise any rulemaking body could evade the plain intent of the law by always going into executive session for discussions, and only recording votes in public. The law obviously requires that at least the discussion concerning issues that are going to be voted on by rulemaking bodies be conducted before the public."

This conclusion is buttressed by decisions from other jurisdictions, particularly Selkowe v. Bean, 249 A.2d 35, 38 A.L.R.3d 1066 (N.H. 1968), where the court ruled that the finance committee of the Keene City Council fell within the provisions of New Hampshire's open meeting law which stated:

". . .'All public proceedings are open to the public, and all persons are permitted to attend any meetings of these bodies and agencies' . . ." id. at 36

The court held that a meeting of the finance committee was a "public meeting" as that term was used in the statute. The court went on. to hold that this type of meeting was specifically exempted from the "open meeting" requirements by a different statutory provision which permitted "executive sessions" of a governmental body as long as no "official action" was taken. However, Missouri's Sunshine Bill contains no such exception.

In Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal.Rptr. 480 (Cal.App. 1968), it was held that subcommittee meetings were specifically included within the ambit of California's open meeting law known as the Brown Act. More importantly, the court rejected a contention, similar to the argument made in the St. Louis County Counselor's opinion, that the word "meeting" did not encompass informal sessions at which no official action was taken. At page 487 of its opinion the court stated:

In this area or regulation, as well as others, a statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus permits crystallization of secret decisions to a point just short of cermonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of. the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can open meeting regulations frustrate these evasive devices. . . ."

The Missouri legislature obviously has made a concerted effort to foresee and forestall these,"evasive devices" by specifically including "informal" meetings within the definition of "public meetings" and by avoiding any requirement that formal action be taken. Under the law, public business need only be "discussed" by such bodies and formal action does not have to be taken' at that particular meeting in order for a meeting to qualify as a "public meeting."

If the legislature had wished to exclude subcommittee meetings and executive. sessions such as the meetings of the committee of the whole from the requirements of the Sunshine Bill, it could have easily done so. It is clear, however, that the legislature had no such intention.

CONCLUSION

It is the opinion of this office that meetings of the "committee of the whole" and subcommittees of the St. Louis County Council are "public meetings" within the meaning of Section 1(1)' of Senate Bill No. 1, 77th General Assembly, First Regular Session, and thus are required to be open to the public by Section 2 of said bill. '.

The foregoing opinion, which I hereby approve, was prepared by my assistant, Philip M. Koppe.

Very truly yours,

John C. Danforth
Attorney General

 
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