State Ex Rel. Stephan v. BD. OF SEDGWICK COUNTY COMM'RSState Ex Rel. Stephan v. BD. OF SEDGWICK COUNTY COMM'RS
- Reporters:
- , ,
- Before:
- Allegrucci
The opinion of the court was delivered by
Allegrucci, J.:This is a declaratory judgment action in which *537 the attorney general is asking that the Sedgwick County Board of Commissioners’ resolution increasing its quorum requirements be declared void. The district court granted the State’s petition and declared the resolution void. The Board of County Commissioners of Sedgwick County appeals and we. reverse.
On May 27, 1987, the five members of the Board of County Commissioners of Sedgwick County (Board) unanimously adopted a home rule resolution to increase the quorum for future meetings of the board to four rather than three county commissioners. The attorney general, on behalf of the State of Kansas, filed a petition, alleging that the Board’s resolution increasing the quorum requirement to four members should be declared void as a violation of
We first must determine whether the resolution is void as a violation of public policy as stated in the Kansas Open Meetings Act. The Board contends that the quorum resolution reflects a valid exercise of powers delegated by the legislature to Sedgwick County through the Home Rule Act.
In addition to these general grants of authority, the Board argues that the quorum resolution finds specific authorization in
“Every board of county commissioners shall have a seal, and may alter the same at pleasure. They shall sit with open doors, and all persons conducting in an orderly manner may attend their meetings; and they may establish rules and regulations to govern the transaction of their business.”
The State and
amicus
respond by arguing that the quorum resolution adopted by the Board violates public policy in general, and the policy underlying the Kansas Open Meetings Act,
This court rejected an argument similar to the first argument advanced by the State and
amicus
in
U.S.D. No. 407 v. Fisk,
232 Kan. 820, 660 P.2d 533 (1983). In
Fisk,
at issue was the proper interpretation of
“However, the same argument could be made of any board that lacked seven members. We do not adopt the argument that one or more of the members of a four-person board will refuse to perform the duties [of] the office and refuse to cooperate in bringing the board to full membership.” 232 Kan. at 828.
See
In re Application for Incorporation as City,
241 Kan. 396, 398, 736 P.2d 875 (1987). Moreover, should two members of the county commission in the present case seek to frustrate any action by the Board by consistently refusing to attend any Board meetings, they could be removed from office pursuant to
Similarly, the provisions of the Kansas Open Meetings Act do not provide an independent limitation upon the ability of a county commission to increase the quorum requirements for commission meetings. The general policy underlying the Kansas Open Meetings Act is stated in
“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.”
The Open Meetings Act seeks to increase public confidence in *539 government by increasing the access of the public to the decision-making processes of government. This increases the accountability of governmental bodies, and deters official misconduct. See Tacha, The Kansas Open Meeting Act: Sunshine on the Sunflower State?, 25 Kan. L. Rev. 169, 170-71 (1977).
“As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”
See State ex rel. Murray v. Palmgren, 231 Kan. 524, 534, 646 P.2d 1091 (1982).
The State suggests that the quorum resolution at issue in the present case violates the Open Meetings Act by permitting two members of the county commission to meet outside the scope of the Act. Those two members could, in turn, individually speak with other members of the Board, thereby circumventing the provisions of the Open Meetings Act. The legislature, however, could have prevented this result by simply providing that the Open Meetings Act applies whenever two members of a governmental body or agency gather or assemble. Instead, it refused to adopt such an approach and defined a meeting simply as “a majority of a quorum,” but did not define what constitutes a quorum.
One authority has agreed, finding that the legislature’s refusal to designate a more explicit definition of the term “meeting” indicates that the Open Meetings Act is not an independent limitation upon the ability of a local governmental body or agency to change the definition of a quorum.
“In addition, proof of the majority of a quorum element necessarily requires evidence of the legal composition of the governmental body as well as the number of members necessary to constitute a quorum. The number of members of a body necessary for a quorum varies depending on the size of the body and the rules by which it operates. In the. absence of a statutorily designated quorum number it has been assumed a majority is a quorum. This may not, however, be the case if regulations or local ordinances provide for the attendance of a greater or lesser number of members, to transact business, Since the legislature did not require ‘a majority of a majority’ it must be presumed local variations are permitted.” Smoot and Clothier, Open Meetings Profile: The Prosecutor‘s View, 20 Washburn L.J. 241, 259-60 (1981).
We find that the Open Meetings Act contains no limitation *540 upon the ability of a county commission to increase its quorum requirements. We conclude that the resolution increasing the quorum requirements does not violate the public policy of the Open Meetings Act.
The State next contends that the resolution of the Board violates the general common-law rule that a majority of a collective body constitutes a quorum. The State also notes decisions from other jurisdictions, which hold that a local governing body is required to follow the common-law quorum rule absent a contrary statutory authorization.
Endeavor-Oxford Union F.H.S. Dist. v. Walters,
270 Wis. 561, 72 N.W.2d 535 (1955);
Heiskell v. Mayor, ire., of Baltimore,
65 Md. 125, 4 A. 116 (1886). However, these cases are not beneficial in resolving the issue before us, since they fail to discuss the impact of home rule legislation upon the general common law. For that reason, both cases are distinguishable from the case before us. In
Endeavor-Oxford,
the Wisconsin court held that a municipal council did not possess an “implied power” to alter the general common-law definition of a quorum. 270 Wis. at 571. It did not discuss whether such authority might be derived from home rule legislation which, in Kansas, empowers counties to “transact all county business and perform all powers of local legislation and administration it deems appropriate,” subject only to specific enumerated exceptions.
The Maryland Court of Appeals’ decision in Heiskell was decided in the context of a legislative framework which severely limited the extent of powers delegated by the state legislature. Under the then-existing Maryland law,
“ ‘a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power, is resolved by the Courts against the corporation, and the power is denied.’ ” Heiskell, 65 Md. at 148 (quoting 1 Dillon’s Commentaries on the Law of Municipal Corporations § 89 [4th ed. 1890]).
Contemporary Kansas law, however, not only contains a much broader grant of authority to counties to perform powers of administration as they deem appropriate, it also requires the liberal construction of those powers. Under
The State and
amicus
assert two possible statutory limitations upon a county’s home rule power to alter its quorum requirements:
“Words giving a joint authority to three or more public officers or other persons shall be construed as [giving] that authority to a majority of them, unless it is otherwise expressed in the act giving the authority.”
We find no Kansas case that has ever interpreted this statute as containing a definition of the quorum required for a legal meeting. Rather, the statute has been consistently interpreted as a voting requirement, the cases holding that a majority vote is sufficient to bind a collective body, and that a unanimous vote is not required. See,
e.g., Wycoff v. Board of County Commissioners,
191 Kan. 658, 673, 383 P.2d 520 (1963);
State v. Boicourt Hunting Ass’n,
183 Kan. 187, 326 P.2d 277 (1958);
Chambers v. Herrick,
172 Kan. 510, 514, 241 P.2d 748 (1952);
State, ex rel., v. Woodruff,
164 Kan. 339, 189 P.2d 899 (1948);
Tucker v. Raney,
145 Kan. 256, 257, 65 P.2d 329 (1937);
Union Public Ser. Co. v. Corporation Comm.,
140 Kan. 722, 725, 37 P.2d 1010 (1934);
Parrick v. School District,
100 Kan. 569, 573, 164 Pac. 1172 (1917);
Water Co. v. City of Wichita,
98 Kan. 256, 258, 158 Pac. 49 (1916). The nature of
P. & F. R. Rly. Co. v. Comm’rs of Anderson Co.,
16 Kan. 302, 310 (1876), leads to a similar conclusion. The issue was whether sufficient notice had been given for a special session of a board of county commissioners and, therefore, whether the meeting was a valid legal session. This court also discussed the predecessor of
The State argues that to require the presence of more than a majority denies to the majority the authority conferred to it by
We acknowledge that the results could be as appellee and amicus contend. However, the question is not one of authority to act but authority to call a meeting, i.e., a quorum. The legislature *543 chose not to define “quorum” in the Open Meetings Act or in any legislative act that uniformly applies to all counties. That the legislature must do, and not this court.
The State and
amicus
rely on
Lville. & Jeff. Co. Plng. & Zng. Comm. v. Ogden,
307 Ky. 362, 210 S.W.2d 771 (1948). We find their reliance is misplaced and that the case is distinguishable from the present case. The Kentucky Supreme Court did invalidate a zoning commission’s change in its quorum requirements as a violation of Kentucky’s version of
Our conclusion is supported by a straightforward construction of
The second possible statutory limitation asserted by the State and
amicus
is contained in
“In all counties having more than eight thousand (8,000) inhabitants, the board of county commissioners shall and in all other counties may meet in regular session, at the county seat of the county, on the first Monday in each month during the year, and in special session on the call of the chairman for the transaction of any business general or special, at the request of a majority of the members on the board, as often as the interest and business of the county may demand. The nature of the business to be transacted at any call meeting to be governed by the matters and things set out in the call.”
The State contends that
*544
The Board does not respond by arguing that there is no inconsistency, but contends that
“If the legislation proposed by the board under authority of subsection (a) is contrary to an act of the legislature which is applicable to the particular county but not uniformly applicable to all counties, such legislation shall become effective by passage of a charter resolution in the manner provided inK.S.A. 19-101b .”
The judgment of the district court is reversed.