Asking the court for a do-over
Back in 2005 the Alabama Legislature passed the new and improved Open Meetings Act, which was intended to close a few loopholes that too often shut the door on the public’s right to know what its government was doing.

The straw that broke the camel’s back came when the Auburn University Board of Trustees was challenged on its practice of appointing board members to committees in sub-quorum numbers to bypass the requirement for having board meetings in public. Smaller groups, that did not consist of a quorum, would meet secretly to discuss matters, and meet as a full board later on to vote on it. That way the public was only able to know what they decided to do, but not necessarily how they reached that decision, why, or what other options might have been available.

After protests about the lack of open government, state legislators went to work on the new law, which, among other things, specifically deals with meeting in committees for the purpose of deliberating matters to be considered later. That veil of secrecy was to be removed, but the new law did make allowances for secret executive sessions for some specific situations.

So, with the new Open Meetings Act on the books, the chairman of the board of the Montgomery County School System appointed board members to committees smaller than a quorum to meet secretly to decide whom to hire as the system’s new superintendent. One board member admitted the purpose was to avoid meeting in public and to avoid the media.

A candidate who was not hired challenged that procedure in court — and Alabama’s Supreme Court recently ruled 5-4 that it was perfectly legal.

The majority opinion of the court came from justices Woodall, Stuart, Parker, Murdock and special justice Harwood. They agreed that if board members met as a committee to discuss matters they would deliberate again, meeting as the same committee, they would be in violation of the act. But if they discuss matters as a committee that would be deliberated later by the full board, that’s OK. They argued that a strict, literal reading of the law gave them no choice — that these types of serial meetings are allowed.

Others on the court, including Shaw, Malone, Bolin and Main, disagreed.

Justice Shaw noted in his dissent, “It seems counterintuitive that the legislature could have intended to preserve the status quo in a scenario like this. … I find that the Act is ambiguous and that the literal construction applied by the main opinion would produce a result that is inconsistent with the purpose and policy of the Act.”

We think he is correct. The reason for passing the law in the first place was to make government more transparent.

The plaintiff’s attorney is asking the court to take another look at their decision, and the Alabama Press Association’s attorney Dennis Bailey said the APA would support him in that request.

Bailey called the decision a “road map for how to avoid deliberating tough issues in public.”

We certainly hope the court reconsiders. The public has a right to know how public business is being done.

© 2012