Ala. high court allows Auburn trustees to keep committee meetings closed, protested by newspapers

Supreme court rolls back earlier decision that made many of those meetings public, remands case to determine if any meetings violated state law

ALABAMA — Public officials in Alabama will now be permitted to hold closed meetings as long as a quorum of members is not present. Last month the Alabama Supreme Court clarified the types of public meetings that are allowed to be held in private under the state's sunshine law. Auburn University's student newspaper, The Auburn Plainsman, and seven other professional newspapers sued the university for allegedly violating the state law 39 times between 1999 and 2001. Under the decision, at least half of those alleged violations would now be permissible.In its May 23 ruling, the high court partially reversed a lower court decision that found the Auburn University Board of Trustees had interpreted the exemptions to the state's open-meetings law "beyond permissible limits."The Alabama Open Meetings Law forbids all public officials, including Auburn's board of trustees, from holding closed meetings unless they are discussing the reputation of others or pending litigation. Each violation is punishable by a $10 to $500 fine.The newspapers filed a suit in February 2001, claiming that the university's trustees held executive sessions that did not fall within the exemptions of the open-meetings law and without giving prior public notice. Between April 9, 1999, and February 14, 2001, the board made it a common practice to meet in unannounced committee meetings of at least three members of the board to discuss official university matters, the newspapers contended in their joint lawsuit.In August 2001, Lee County Circuit Judge Robert Harper provided a liberal interpretation of the state open-meetings law in his ruling against Auburn. The district court judge forbade the board from holding private meetings of at least three members, which was the number required to conduct business in committee meetings. Committees can make policy recommendations; therefore, the newspapers had argued, they must be open to the public. The district court did allow for the exemptions to the open-meetings law for discussions concerning "good name and character" and pending litigation.The Alabama Supreme Court ruled 5-0 that the university's board of trustees could meet in private, as long as less than an eight-member quorum, which is required to make binding decisions under the board's amended bylaws, was present. The court qualified that decision, ruling that less than a quorum could not meet in committee if the committee was empowered to act on behalf of the university. There are currently two such committees that have that authority."It is a decision that caught us all by surprise, all of us who are dedicated to freedom of information," said Dale Harrison, chair of the department of communication and journalism at Auburn University. "To allow seven or fewer to meet in private lies in the face of every principle about openness."The state supreme court also ruled that the board of trustees could hold private meetings to discuss the naming of buildings and awarding honorary degrees because the state's sunshine law exempts meetings about the reputation of others. And the court determined that the board could privately obtain legal advice about threatened lawsuits or the legal ramifications of a specific proposal, which clarifies the exemption to the open-meetings law about closed discussions of pending litigation. The high court's interpretation of the sunshine law, which applies to all public bodies of the state, could limit the public's access and ability to participate in the Alabama government's deliberative processes, Harrison said."It's a defeat to some extent for the newspapers in Alabama," said Scott Brown, publisher of The Montgomery Advertiser, the lead plaintiff in the suit against Auburn University. "While it's not something we had and lost, we missed an opportunity to clarify the law on the side of the public's right to know."The Auburn Plainsman staff also was disappointed with the state supreme court decision, according to editor James Diffee. "[We believe] the court has set a dangerous precedent," Diffee said. "Much of the deliberative process for the board of trustees, and any political body, occurs in committee meetings and meetings of less than a quorum of voting members."The Auburn University trustees changed their bylaws on July 23, 2001, so that all meetings and committee meetings that do not concern litigation or "good name and character" must be open to the public, according to university spokesperson John Hachtel.The supreme court's ruling will allow the board to legally change the bylaws once again to permit private committee meetings.Harrison, Auburn's communication chair, expressed concern that the school would use the state supreme court decision to return to holding closed committee meetings."It is my hope and that of many others that the board will take the higher road and go by its own stated policies of having open meetings," Harrison said. "There will be no means by which to enforce it if they don't."The state supreme court remanded the case back to the district court to determine with the supreme court's guidelines which of the original 39 meetings cited in the newspapers' claim could still be considered violations of the sunshine law. The university has acknowledged that 16 meetings violated the law, but according to the newspapers' lawyer, Dennis Bailey, the court will not hand down civil fines.

Auburn University v. The Advertiser Company, 2003 WL 21205832 (Ala.)

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