Alabama jettisons open meetings law, adopts new one

From the Spring 2005 issue of The News Media & The Law, page 27.

By Ryan Lozar

Come Oct. 1, Alabama’s 90-year old open meetings law will be no more. With a few strokes of his pen, Republican Gov. Bob Riley in March sealed the repeal of one of the nation’s first open meetings laws.

Riley’s signature replaced several vague paragraphs written in 1915 with 26 pages of clear standards for open meetings, the culmination of a two-year battle for open government reform triggered by an access-limiting state Supreme Court decision.

Alabama’s new law is the most sweeping government access reform in any state since New Jersey’s 2002 new open records law.

Recent news stories about Alabama’s 1915 law claim that it was originally passed to stop the Ku Klux Klan from wielding backroom influence over government operations. Former state Sen. J. Miller Bonner once reportedly said, “I introduced [the open meetings law] to take the hood off the Klan.”

But Jon Morgan, a historian with the Alabama Legislature, challenged the Klan story as impossible. The Klan’s 20th-century incarnation “did not take hold in Alabama until the early 1920s,” he said.

The reason for the law was the Southern landowners’ alarm at the rising “corporate influence in Alabama politics,” Morgan said. The upper-class landowners who controlled the Legislature enacted the open meetings law, along with a bill limiting corporate contributions to political campaigns to $500, to curb corporate political influence.

The law, which prohibited secret government meetings except “when the character or good name of a woman or man is involved,” broke new legal ground but ultimately was little more than a vague, three-paragraph statement of principles, according to Felicia Mason, executive director of the Alabama Press Association. The law gave “no guidelines to follow in terms of going into executive sessions, it had no notice provision . . . it was just totally void of any specifics,” she said.

Courts strip it down

Despite its vagueness, the law was ahead of its time since most other states didn’t begin to enact such laws until the 1950s. For 90 years, the law remained virtually unchanged, with the exception of a 2004 homeland security exemption, leaving the door open for judicial interpretation. What emerged was a “pattern of courts siding with governments who want to meet behind closed doors,” said Dale Harrison, chairman of Auburn University’s Communication and Journalism Department.

In 1979, the Alabama Supreme Court ruled in Ex parte Alabama Public Service Commission that the judiciary was not authorized under the 1915 law to invalidate government actions taken in illegal secret meetings. Writing for a unanimous court, Chief Justice Clement Clay “Bo” Torbert Jr., wrote that the legislature should have written such authorization into the law if that’s what it wanted.

Holding that courts were unable to invalidate government action conducted in secret destroyed “a huge incentive” to open meetings compliance, Harrison said. During the law’s 90-year existence, there were no criminal prosecutions for open meetings violations, resulting in “no recourse for a citizen at all,” he said.

Another disappointment came with 1991’s Thompson v. City of Clio when a federal district court in Montgomery ruled that the law guaranteed citizens’ right to attend meetings, but not record them. The defendant Clio City Council “did not violate the law by insisting [the plaintiff] put aside his tape recorder” as a condition to entering its meeting, Judge Myron H. Thompson wrote.

In 2003, the Alabama Supreme Court ruled unanimously in Auburn University v. The Advertiser Company that government bodies’ committees and subcommittees were not subject to openness requirements.

“If the goal of a government body was to meet in secret, then the Auburn University decision was a manual of how to do it, ” Harrison said.

The opinion, written by Justice Douglas Inge Johnstone, “really hurt a lot in terms of reporters’ ability to do our job,” Mason said. “In any government body, most of the work, at least on complicated issues, is done on the committee.”

The ruling also spurred Alabama newspapers to band together to lobby for overhauling the open meetings law, said Mason, who spearheaded the effort.

Rallying the troops

Dennis Bailey, general counsel of the Alabama Press Association, surveyed 49 state open meetings laws and chose what he considered to be the best provisions in writing the first draft of Alabama’s new open meetings bill, he said. Notice requirements, civil penalties for bad faith violations and clearly delineated exemptions all became a part of the bill.

As the media’s lobbying effort got underway, other interest groups began to collaborate. Harrison lauded the bill’s sponsors, Rep. Blaine Galliher (R-Etowah) and Sen. Zeb Little, (D-Cullman) for getting a broad spectrum of people involved in the process. The legislators “got the word out that this was something that the state needed and they got it out to a lot of constituencies.”

Riley’s strong public support coupled with Little’s and Galliher’s hard work made unanimous legislative support of the final bill happen a lot faster than it otherwise would have, Harrison said.

The bill’s final version differs greatly from Bailey’s first draft. “It takes input from everyone,” Mason said, “and though what we came up with, from a newspaper’s perspective, is not perfect . . . we made compromises as did every other group that was at the table.”

“The biggest compromise,” Bailey said, “was with the county commissioners over public discussion of government employees’ job performance. We wanted it to be always in the open, and they would always come back with . . . ‘someone who’s making minimum wage is going to be embarrassed in front of the whole community?'” In the end, all parties agreed that the law would require only job performances of government employees who meet one of 18 criteria to be discussed in open meetings. One of the criteria is a yearly salary exceeding $50,000.

The new law, passed by the legislature on March 10, mandates that public meeting notices include the time, date, and place of the meeting and generally must be posted seven days in advance.

Although the new law does not require executive sessions, it authorizes governmental bodies to meet secretly when discussing select public employees’ job performance, litigation, certain security-related issues and plans to purchase or sell property.

Various provisions reverse existing open meetings case law. The new law addresses the Auburn University decision by defining “government body” to include an entity’s “advisory committees or subcommittees.”

And as of Oct. 1, when the new law officially supplants the old, Alabamians will have the right to record their government’s meetings, and courts will wield power to invalidate government actions taken in violation of open meetings requirements.