ALABAMA — Public officials in Alabama willnow be permitted to hold closed meetings as long as a quorum of members is notpresent. Last month the Alabama Supreme Court clarified the types ofpublic meetings that are allowed to be held in private under the state’ssunshine law. Auburn University’s student newspaper, The AuburnPlainsman, and seven other professional newspapers sued the university forallegedly violating the state law 39 times between 1999 and 2001. Under thedecision, at least half of those alleged violations would now bepermissible.In its May 23 ruling, the high court partially reversed alower court decision that found the Auburn University Board of Trustees hadinterpreted the exemptions to the state’s open-meetings law “beyond permissiblelimits.”The Alabama Open Meetings Law forbids all public officials,including Auburn’s board of trustees, from holding closed meetings unless theyare discussing the reputation of others or pending litigation. Each violation ispunishable by a $10 to $500 fine.The newspapers filed a suit in February2001, claiming that the university’s trustees held executive sessions that didnot fall within the exemptions of the open-meetings law and without giving priorpublic notice. Between April 9, 1999, and February 14, 2001, the board made it acommon practice to meet in unannounced committee meetings of at least threemembers of the board to discuss official university matters, the newspaperscontended in their joint lawsuit.In August 2001, Lee County CircuitJudge Robert Harper provided a liberal interpretation of the state open-meetingslaw in his ruling against Auburn. The district court judge forbade the boardfrom holding private meetings of at least three members, which was the numberrequired to conduct business in committee meetings. Committees can make policyrecommendations; therefore, the newspapers had argued, they must be open to thepublic. The district court did allow for the exemptions to theopen-meetings law for discussions concerning “good name and character” andpending litigation.The Alabama Supreme Court ruled 5-0 that theuniversity’s board of trustees could meet in private, as long as less than aneight-member quorum, which is required to make binding decisions under theboard’s amended bylaws, was present. The court qualified that decision, rulingthat less than a quorum could not meet in committee if the committee wasempowered to act on behalf of the university. There are currently two suchcommittees that have that authority.”It is a decision that caught us allby surprise, all of us who are dedicated to freedom of information,” said DaleHarrison, chair of the department of communication and journalism at AuburnUniversity. “To allow seven or fewer to meet in private lies in the face ofevery principle about openness.”The state supreme court also ruled thatthe board of trustees could hold private meetings to discuss the naming ofbuildings and awarding honorary degrees because the state’s sunshine law exemptsmeetings about the reputation of others. And the court determined that the boardcould privately obtain legal advice about threatened lawsuits or the legalramifications of a specific proposal, which clarifies the exemption to theopen-meetings law about closed discussions of pending litigation. Thehigh court’s interpretation of the sunshine law, which applies to all publicbodies of the state, could limit the public’s access and ability to participatein the Alabama government’s deliberative processes, Harrison said.”It’sa defeat to some extent for the newspapers in Alabama,” said Scott Brown,publisher of The Montgomery Advertiser, the lead plaintiff in the suitagainst Auburn University. “While it’s not something we had and lost, we missedan opportunity to clarify the law on the side of the public’s right toknow.”The Auburn Plainsman staff also was disappointed with thestate supreme court decision, according to editor James Diffee. “[Webelieve] the court has set a dangerous precedent,” Diffee said. “Much of thedeliberative process for the board of trustees, and any political body, occursin committee meetings and meetings of less than a quorum of votingmembers.”The Auburn University trustees changed their bylaws on July 23,2001, so that all meetings and committee meetings that do not concern litigationor “good name and character” must be open to the public, according to universityspokesperson John Hachtel.The supreme court’s ruling will allow theboard to legally change the bylaws once again to permit private committeemeetings.Harrison, Auburn’s communication chair, expressed concern thatthe school would use the state supreme court decision to return to holdingclosed committee meetings.”It is my hope and that of many others thatthe board will take the higher road and go by its own stated policies of havingopen meetings,” Harrison said. “There will be no means by which to enforce it ifthey don’t.”The state supreme court remanded the case back to thedistrict court to determine with the supreme court’s guidelines which of theoriginal 39 meetings cited in the newspapers’ claim could still be consideredviolations of the sunshine law. The university has acknowledged that 16 meetingsviolated the law, but according to the newspapers’ lawyer, Dennis Bailey, thecourt will not hand down civil fines.
Auburn University v. The Advertiser Company, 2003 WL 21205832 (Ala.)
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