Supreme court rolls back earlier decision that made many of those meetings public, remands case to determine if any meetings violated state law
June 3, 2003
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.
For More Information: Auburn University v. The Advertiser Company, 2003 WL 21205832 (Ala.)
Read previous coverage:
- Here Comes the Sun The Report, Winter 2001-02
- Auburn University appeals open meetings ruling News Flash, 9/6/2001
- Newspaper joins board of trustees fight The Report, Spring 2001
- Two schools shut doors to meetings The Report, Fall 2000
© 2003 Student Press Law Center
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