Here Comes the Sun
Public remains in the dark as journalists struggle to force boards of trustees to comply with open-meetings laws
'Last school year, we decided as a staff that we'd all go to the board of trustees meeting, and get into the executive session,' managing editor Ryan Lee said. 'And we had the door literally slammed in our face.'
For Auburn alumnus and former Plainsman editor Bill Barrow, now a reporter with The Mobile Register, the story sounds too familiar. He said he also attempted to go to a meeting he knew he would not get into, 'but you do it just so you can say you tried.'
Lee and his staff cornered members of the board after the executive session and asked what was discussed in the meeting. They told the staff 'nothing' had happened.
When Barrow asked, he was told 'good name and character and pending litigation' ' the two exceptions allowed by the Alabama sunshine law for meeting behind closed doors.
In a reversal of fortune, Lee County Circuit Court ruled in August that Auburn had violated the Alabama sunshine law, ordering the board of trustees to conduct its meetings before the public and give reasonable notice as to their date, time and location. Auburn asked the judge for clarification in two issues: whether the sunshine law covers ad hoc meetings and if the board could use secret ballots. Judge Robert Harper denied the request.
The two sides will now face each other in the Alabama Supreme Court. Auburn spokesman Bob Lowry said the board of trustees has been in compliance since the August decision and will continue to comply until the final supreme court decision.
For many in Alabama concerned with public access, the newspapers' lawsuit was long overdue. In the past three years, state courts ruled Auburn violated the sunshine law 39 times. Being denied access was just part of being a journalist in Alabama, said Edward Mullins, journalism professor at the University of Alabama and co-chairman of the executive committee at the Alabama Center for Open Government.
'Everyone knew it happened because [the board of trustees] would read the minutes, winking at each other because they already knew what the votes were. They knew the outcome, but went through the charade of an open meeting,' Mullins said.
Charles Davis, executive director of the Freedom of Information Center at the University of Missouri, said there seems to be more access battles at the university level now than ever.
'The university is becoming more corporate ' not purely a public institution,' Davis said. 'It's mingling more public and private funds in its contracting with corporate research, more athletic events ' those interests don't share public goals.'
Indiana University's board of trustees has also been under fire for testing the open-meetings law by assembling in groups of four at a time so no quorum was present. While President Myles Brand technically complied with the law, a group of 46 alumni sued the board for knowingly averting the law and unlawfully firing former men's basketball coach Bob Knight.
The plaintiffs, supporters of Knight, filed an appeal after Special Judge Cecile Blau ruled that Brand was within the scope of the law and his legal authority in firing Knight. The judge acknowledged, though, that Brand did meet in executive session without alerting the public.
The university claims Brand was not deliberately violating the law, simply using the less-than-quorum meetings as a matter of convenience, said Bill Stephan, vice president for public affairs.
The weekend of Indiana's football home-opener fell at the time of Knight's firing. With board members arriving at different times for the football game, Brand informed them as they were available, Stephan said.
'Using committees is a classic game of avoiding open meetings,' said Rebecca Daugherty, freedom of information director for the Reporter's Committee for Freedom of the Press, an organization that provides free legal assistance to journalists. 'Those tricks to avoid open government are a slap in the face.'
Blau denied both parties' request for summary judgment and has allowed the case to proceed to the appellate level.
In another case, the University of Hawaii won a lawsuit filed by the Society of Professional Journalists' Hawaii chapter, but both parties are preparing to meet again in appeals court.
Hawaii Circuit Judge Virginia Lea Crandall ruled the board of regents did not violate the sunshine law when discussing employment and salary negotiations with Evan Dobelle, who became the university's president. The SPJ claimed the board broke the law by holding a closed-door meeting to set Dobelle's salary at $442,000, almost $300,000 more than the previous president.
The SPJ also complained that the board recessed one meeting and then reconvened without notifying the public. The judge upheld the university's action, supporting the claim that personnel matters were discussed at the meeting, therefore allowing it to be conducted in secret.
Ruth Tsujimura, attorney for the university, said the university was in full compliance with the state sunshine law. The law lists exemptions for which a board may hold a closed meeting: 'To consider the hire, evaluation, dismissal or discipline of an officer or employee ... where consideration of matters affecting privacy will be involved.'
Stirling Morita, president of the SPJ's Hawaii chapter, said he was most concerned with the board's voting and discussion taking place out of the public's view. The SPJ had asked the judge for a temporary restraining order requiring the board to hold another vote on the president's salary. Crandall refused to grant the request, ruling that the board may discuss employment-related issues in private.
Carl Varady, SPJ's attorney, said the organization was working on an appeal.
Meeting in executive session means ignoring the public's right to access information and breaking the law, freedom of information advocates told the Report.
Each state's sunshine law allows for exceptions to public meetings. Freedom of information experts agreed that while the public should be aware of most issues taking place within university boards, there are times when executive sessions are appropriate.
'When a university is involved in litigation with someone outside of government, when personnel matters are discussed, when there are issues of personal privacy,' said Ian Marquand, chairman of SPJ's national Freedom of Information Committee. 'The public still needs to know the decision, but not the negotiation.'
The Indiana law provides 12 ways to declare an executive session, ranging from personnel issues to investigating proceedings involving criminal conduct.
Mullins, of Alabama's Center for Open Government, said he understands his state's litigation exception, but called the 'good name and character' clause a 'cover-up.'
'It's vague,' Mullins said. 'Nobody knows what it means. The board of trustees will come out of executive session and tell reporters it was a personnel matter.'
Auburn's board of trustees admitted that all open-meetings violations do not fit under the law's two exemptions, Lowry said.
Former editor Barrow said many of the violations come as an indirect result of board members' backgrounds.
'Ignorance of the law is never a defense, but these people are businessmen ' they're 55 and 60 years old,' Barrow said. 'They've never had to explain their decisions or personal business before the public ' they see it as sitting on a corporate board.'
Averting open-meetings laws is not unique to college and university boards, Marquand said. The Securities and Exchange Commission, a federal agency, asked SPJ if it could be allowed to make decisions behind closed doors, outside the public's view.
'They said they'd have a higher quality of decision making,' Marquand said. 'They're afraid they don't know everything and they're afraid of the learning process.'
The same rationale is true of colleges and universities, he said.
'Colleges and universities believe they are a separate entity with a higher standard of protecting the policy and therefore don't have to follow the rules,' Marquand continued.
'Many times boards are facing some unpleasant business and want to do it secretly,' Davis added.
'There's a natural tendency to think that people will operate better with no one looking over their shoulder,' Daugherty said. 'But when you're being paid by the public, the public is boss.'
Despite their powerful and many times intimidating presence in governing college campuses, it is often against the law for boards of trustees to meet in executive session at public schools. First Amendment experts agree that student journalists must expose these practices exercising the right to freedom of information and their rights as citizens.
'Yell as loudly and to as many people as possible,' Marquand said. 'If students know a meeting is taking place, get into it.'
Many First Amendment organizations are willing to help students who are considering taking legal action against their school administration.
'There's a lot of help out there ' lobby and write letters,' Davis said. 'Contact the SPJ and the Student Press Law Center.'
Back at Auburn, even with the lawsuit awaiting arguments in the state supreme court, things are still 'business as usual,' Lee said. While the board now announces its committee meetings, they remain 'as closed as ever,' he said. For the staff of The Plainsman, attending the board meetings is 'just a formality.'
Attempts to sit in on a meeting and having the door slammed remain fresh in Lee's memory. 'I don't know how to portray the hopelessness we had, the battle we were up against, and the difficulty we'll have in the future.'
reports, Winter 2001-02