Proponents say new bill needed to restore open meetings in Alabama government
by Tim Lockette
tlockette@annistonstar.com
Jan 19, 2014 | 3246 views |  0 comments | 42 42 recommendations | email to a friend | print
Guests watch from the balcony as the House opens the session on the first day of the Alabama Legislature on Jan. 14. (Associated Press photo by Butch Dill)
Guests watch from the balcony as the House opens the session on the first day of the Alabama Legislature on Jan. 14. (Associated Press photo by Butch Dill)
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MONTGOMERY — When Alabama's Legislature meets, it's not obligated to do so in public. When a state governing board discusses business in secret, residents of the state may have no standing to sue them for it. And county commissioners can meet in twos or threes to discuss public matters, without declaring a public meeting.

That, at least, is Alabama law as interpreted by the Alabama Supreme Court over the last few years. But one of the creators of Alabama's Open Meetings Act said it's not at all what he intended.

"I'm really not sure why in the world the court made some of the rulings it made," said Blaine Galliher, a former state representative from Etowah County.

During his time in the House, Galliher was one of the primary champions of the Open Meetings Act, a 2005 law that allowed the news media to tape all public meetings, banned secret votes by government bodies, narrowed the circumstances under which public bodies can meet behind closed doors and required government bodies to notify the public before holding any meeting — even an emergency session.

Galliher, now the legislative director for Gov. Robert Bentley, said he worked for years to get the 2005 Open Records Act passed. Back then, it was mostly the press that advocated for more openness — in the form of the Alabama Press Association, or APA, and in the form of constant news stories about closed meetings and secretive elected officials.

Today, some are saying the Open Meetings Act is in jeopardy, due largely to rulings by the Alabama Supreme Court. But this time, the call for open meetings is coming from the highest levels of state government. Gov. Bentley announced last week that he’s throwing his political weight behind a rewrite of the bill, designed to counteract the court’s rulings.

"We would have had some legislation on this anyway," said Felicia Mason, executive director of the APA. "But it was the governor who called us first."

No standing

Over the past two years, the Alabama Supreme Court has handed down at least three rulings on the Open Meetings Law that, according to critics, dramatically redefine the meaning of that law.

One of those was the case of Allan Pizzato and Pauline Howland, two executives of Alabama Public Television who were fired after the agency's governing board met behind closed doors to discuss the employees’ job performance. Both plaintiffs claimed the closed-door meetings violated the Open Meetings Act. And even though the act allows "any Alabama citizen" to sue over possible Open Meetings violations, the Supreme Court ruled that neither Pizzato nor Howard had standing to file a claim.

The justices cited Lujan v. Defenders of Wildlife, a federal case from the early 1990s, in which environmentalists sued the federal government to stop its funding of a project in Egypt that might harm endangered species there. The U.S. Supreme Court ruled that because the plaintiffs weren't personally harmed by the project and didn't stand to collect damages, they didn’t have standing to sue.

In the public television case, both Pizzato and Howard were again employed by the time the case hit the Supreme Court. And the two couldn't collect damages because, under the Open Meetings Law, all damages in open meetings cases are paid to the state, not the plaintiff.

Critics say that under that standard, almost no one would have standing to file an open-meetings suit.

Closing the doors

In another case, the court ruled in 2012 that the Montgomery Board of Education wasn't violating state law when board members met in groups of two or three with prospective superintendent candidates. That practice, sometimes dubbed "serial meetings," has long bedeviled the news media, largely because it allows elected officials to settle their business before meeting openly.

The court ruled, in effect, that serial meetings weren't true meetings, because a majority of board members weren't present and because no vote was held.

A similar issue came up last year, after the Legislature passed the Alabama Accountability Act, a bill that set up a tax credit for parents who pull their children out of public schools and send them to private schools. That bill began life as a measure to allow schools more administrative flexibility, and passed initial votes in both houses of the Legislature — but it was renamed, and largely rewritten, by Republican members of a legislative committee outside the committee’s official meeting, in the hours its final passage. The full committee and then both Houses of the Legislature then approved the rewritten version.

The Alabama Education Association, which opposed the bill, filed suit, arguing that the rewrite violated the Open Meetings Act.

The Supreme Court ruled that the bill’s passage was legal. But its logic surprised even supporters of the bill.

“The Alabama Constitution does not require the Legislature to conduct its meetings in public,” the court’s majority opinion read.

A new bill

Sen. Cam Ward, R-Alabaster, is troubled by that ruling.

“The state Constitution says ‘the doors of the Legislature shall be open’ while the Legislature is in session,” he said.

Ward is the sponsor of a Senate bill, backed by the APA and Bentley, intended to counteract the court’s decisions and return the Open Meetings Act to its original state.

“These rulings have taken us back to where we were before 2005,” Ward said. “We’re just trying to restore the Open Meetings Act. “

Ward’s bill would give anyone the right to sue for violations of the Open Meetings Act and personally collect damages — getting around the Supreme Court’s no-damages, no-standing rule. It would explicitly ban members of public boards from meeting in small groups. And it would require the Legislature to make a set of written rules consistent with the “doors shall be open” wording of the Constitution.

Bentley, Ward and other supporters of the bill unveiled it in a press conference last week, and say they have a broad base of support. The process is moving a little too fast for Sonny Brasfield, the director of the Association of County Commissions of Alabama.

Brasfield said his organization consulted with the APA for more than two years before the 2005 Open Meetings Act. He said he first saw a copy of the new bill last week.

“The bill needs significant attention,” he said.

The “serial meetings” provision, he said, could prove problematic for city and county governments — making public officials afraid to run into each other even when they’re not talking business.

“There’s a very likely possibility that every controversial decision made in a public body would lead to a lawsuit based on someone saying they saw two members of the body together,” he said.

Giving the public an economic incentive to sue, by allowing people to collect damages, could further cloud the picture, he said. This bill also allows plaintiffs to collect damages equal to half a public official’s salary — or up to $1,000, no matter what the public official gets paid. the old bill allowed a penalty of no more than $1,000, with lower limits for officials with low pay. Brasfield said the act could make it hard to recruit members to boards that pay nothing, or nearly nothing.

Proponents of the bill say their core argument — the need to restore the intent of the Open Meetings Act — has a strong appeal to lawmakers, many of whom voted for the original act back in 2005.

Bentley, then a House member, cast one of those “yes” votes. Galliher said the governor is serious about getting the bill passed.

“His heart is in this,” he said. “It does add a lot of strength to a bill when you have the governor on your side.”

Capitol & statewide reporter Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.

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