By Marie Leech
The Birmingham News
BIRMINGHAM, Ala. (AP) — After years without an open meetings challenge in Alabama courts, three lawsuits in six months have been filed against government agencies, claiming violations of the 2005 Open Meetings Act.
The first lawsuit — filed against the Adamsville City Council over a closed-session meeting and meeting-notice requirements — has been settled.
The second, against the Montgomery Board of Education, is awaiting appeal to the Alabama Supreme Court after a Montgomery judge ruled against the plaintiff over “serial meetings” that involved small groups of board members.
The most recent lawsuit is pending against the Birmingham Board of Education, claiming that members used electronic communications to avoid a public meeting.
Perry Roquemore, a lawyer and executive director of the Alabama League of Municipalities, said most governmental agencies try to follow the law, but the Open Meetings Act is still relatively new and open to interpretation.
“We all can read it, and we all know what it means,” he said. “But I might read it differently than you.”
That’s where the Montgomery and Birmingham cases could come in handy, said Dennis Bailey, general counsel for the Alabama Press Association. Those cases have the potential to set precedents concerning the open meetings law.
“People settle lawsuits all the time because of the costs,” he said. “But to really have a binding precedent, it has to be a final ruling from either the Alabama Court of Civil Appeals or the Alabama Supreme Court.”
A lawsuit was filed against the Birmingham school board Jan. 8, the day after an article by The Birmingham News reported that board President W.J. Maye had polled board members individually the previous week about what salary to offer to the school system’s new superintendent.
All eight of Maye’s fellow board members said they had received calls from Maye asking what they would be willing to pay incoming Superintendent Craig Witherspoon.
That’s a clear violation of the open meetings law, said Felicia Mason, executive director of the Alabama Press Association and an expert in Alabama’s open meetings law.
The law prohibits “the use of electronic media and communications to circumvent the goal of an open meeting.”
It further states that discussions concerning salaries, compensation and job benefits for public employees must be conducted in a public meeting and “cannot be discussed in an executive session.”
The suit was filed by Citizens for Better Schools, a grass-roots group led by Ronald Jackson, who said Maye’s use of telephone polling is “a willful, deliberate, intentional, wanton disregard of the Alabama Open Meetings Act.”
The case has been assigned to Jefferson County Circuit Judge Caryl Privitt. A trial date hasn’t been set.
The Montgomery school board is being sued for allegedly violating the open meetings law at least twice by holding “serial meetings” to avoid having to invite the public, something the Birmingham Board of Education has done many times.
The lawsuit — filed in early December — states that on Nov. 16, all seven members of the board met in prearranged groups of three to discuss, among other things, the new superintendent’s performance and goals.
At no time during those meetings was there a quorum — the minimum number of members needed to conduct business — and the public was not invited.
The lawsuit was filed by the school system’s chief operating officer, Clay Slagle, a former candidate for the superintendent’s position.
A Montgomery judge on Jan. 28 dismissed the case. “These meetings were staggered and the evidence is without dispute that no more than three board members were in attendance at any of the individual meetings,” Circuit Judge Eugene W. Reese wrote in his order. “Therefore, the court concludes no violation of the law occurred since no quorum was in attendance.”
Slagle’s attorney, Mark Montiel, said he will file an appeal with the Alabama Supreme Court.
“This case is about openness and transparency and letting the citizens see the public’s business,” Montiel said.
Bailey, general counsel for the APA, said he was disappointed in Reese’s decision but said his judgment is not binding in any other court.
“The term ‘staggered meetings’ raises my radar because this might become a road map for those who intentionally want to avoid holding meetings in public,” Bailey said.
Jefferson County District Attorney Brandon Falls sued the Adamsville City Council on Aug. 28, contending the council in a June 25 closed meeting discussed issues not allowed under the Open Meetings Act.
The council went behind closed doors without taking a vote, as required by the law.
The closed session was to discuss pending litigation, negotiate a contract and discuss the good name and character of an employee.
While the law allows a public body to discuss pending litigation privately with its attorney, the city’s attorney wasn’t at the closed session.
Falls also claimed the council failed to give proper notice for a July 6 meeting. The law requires at least 24 hours’ notice before a meeting, except in emergencies “requiring immediate action to avoid physical injury or damage to property” or to accept the resignation of a public official or employee. The council met to pass a resolution for the city to take part in the state sales tax holiday.
In November, Falls and the Adamsville council reached a settlement agreement that the city will hold closed meetings in accordance with the law, will include verbatim certifications of those meetings in the minutes and will give proper notice of meetings.
Falls said he was satisfied with the agreement but noted that all governmental bodies should use “extreme caution” when deciding to go into closed sessions.
Since the suit was settled before it could go to trial, no precedent has been set. However, Bailey said, the agreement may serve as a record in future lawsuits.
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