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In Legal Terms - Pre-Convention Issue
2003
AG Issues Opinion on Open Meetings
Law
The Supreme Court of
Alabama issued a very important opinion regarding Alabama's
open meetings law on May 23, 2003. The case had been pending
with the Court for close to a year. However, from the
standpoint of governing bodies trying to function properly
within the requirements of the law, it was probably worth
the wait.
The case involved the Auburn
University Board of Trustees, and in particular, the practice
on that Board for subcommittees of the Board to meet either
"secretly" or without public notice. Additionally,
they often met in executive session to discuss awarding
honorary degrees or naming a building after an individual
and when meeting with its attorney on matters they believed
were protected by the attorney-client privilege, regardless
of whether litigation was pending.
The Montgomery Advertiser
and the Alabama Press Association challenged these practices,
and filed a declaratory action seeking a ruling that the
University had violated the open meetings law. Additionally,
they sought an injunction to prevent, among other things,
trustees' gatherings in groups of three or more to discuss
University business and trustees' meeting in executive
session.
The Circuit Court of Lee County
found that the University had violated the law in several
respects, and on August 15, 2001, entered a permanent
injunction against the school prohibiting the Board or
a committee of the board from meeting in groups of three
or more to discuss Auburn University business without
providing reasonable public notice, prohibiting the Board
from meeting in executive session except to discuss the
good name and character of an individual as that phrase
had been defined in the earlier case of Miglionico
v. Birmingham News, 378 So.2d 677 (Ala. 1979), and
prohibiting the Board from meeting in executive session
to discuss legal issues unless there was actually "pending
litigation".
Auburn appealed. Several governmental
entities and interest groups (including the ACCA) filed
amici briefs on some or all of the issues raised by the
parties. As mentioned above, the case remained pending
in the Supreme Court for several months. A five to four
opinion written by Justice Johnstone was finally released
on May 23, 2003. The Court made three separate findings
of interest to county government. Each is outlined below.
Quorum Issue
Quoting from earlier cases of the Court, Justice Johnstone,
explained that a quorum is a condition precedent to everything
involving a governmental board or body. "Until then
there is an absolute incapacity to consider or act in
any way upon any matter."1
Fewer than a quorum meeting together do not constitute
the Board acting as a deliberative body to set policy.
Therefore, the Court held, the Sunshine Law does not apply
to a meeting of less than a quorum.
While it is always advisable
to give notice of all meetings and to meet in public whenever
possible, the Court has finally (maybe) laid to rest the
question of when a governmental body is actually meeting
to deliberate under the parameters of Alabama's Sunshine
Law. This is a very important distinction for county commissions
and other bodies. Conversing in an office with a fellow
commissioner is not a violation of the Sunshine Law. The
Board can legally act to set policy only with the presence
of a quorum of trustees.
The Court did note one exception
to this rule. Apparently, the Auburn Board of Trustees
had given two committees (the Property and Facilities
Committee and the Athletic Committee) authority to act
on behalf of the Board. While the Court appeared to question
the legitimacy of the Board delegating its authority to
a subcommittee,2 it held
that since the Board had empowered these two committees
to act on behalf of the University, any meeting of a quorum
of those committees would be subject to the Sunshine Law.
Executive Sessions on
Good Name and Character
The Court also ruled in favor of the University with regard
to its practice of going into executive session to discuss
whether to name a building or award an honorary degree
to a person. The Court held that in deciding these issues,
the Board must determine whether that individual deserves
the honor and whether the individual, once honored, might
embarrass the University. "[This] invites or even
requires debate among the trustees about the individual's
'general reputation, . . . and personal attributes' .
. . . Executive or closed sessions for this purpose allow
candid and robust debate to promote and protect the legitimate
interests of Auburn University without publicizing any
character or reputation defect in the individual."3
On these grounds, the Court ruled that Auburn's practice
of going into executive session for these discussions
did not violate the Sunshine Law.
In its discussion on this issue,
the Court relied on the case of Miglionico v. Birmingham
News Co., supra, which has long been the leading case
on how to apply the "good name and character"
exception to open meetings found in the Sunshine Law.
In truth, the Court did not really expand or further define
the elements necessary under Miglionico, but found
that the University was acting within the parameters of
the guidelines for proper application of the exception
as set out in that earlier case.
Executive Sessions on "Pending
Litigation"
In what is perhaps the most far-reaching aspect of the
Court's ruling in this case, it affirmed the Board's practice
of meeting in executive session to discuss legal matters
with its attorneys even where no lawsuit had yet been
filed. Although Alabama's Sunshine Law does not address
this issue, the Supreme Court of Alabama had previously
carved out an exception to the law for discussions with
attorneys regarding pending litigation.4
Auburn had contended in its arguments to the Court that
the attorney-client privilege should include meetings
to discuss litigation imminently threatened but not yet
filed or pending. The Court agreed and extended the existing
exception, adopting the "Tennessee Rule", which
allows for meeting in executive session where there is
a pending controversy likely to result in litigation,
provided the meeting is limited to discussion of possible
legal options and that no deliberation or decision-making
occurs.5 The Court held that meeting in executive session
was allowed "to discuss the legal ramifications of,
and the legal options for, not only pending litigation
but also controversies not yet being litigated but imminently
likely to be litigated, or imminently likely to be litigated
if the board pursues a proposed course . . ."6
It warned, however, that the executive session was limited
to this discussion and could not include deliberations
among the members of the board toward its decision on
what option to choose or course to follow. As with other
exceptions, the body must deliberate and vote in an open
meeting.
This is an important expansion of the limited
exception approved by the Court several years ago which
was limited to discussion of litigation already pending
in a court of law. This issue has long been a source of
debate and confusion and has placed attorneys in a very
awkward position given the requirement under their Code
of Professional Conduct that meetings of this nature be
kept confidential under the attorney-client privilege.
The threat of litigation often presents much stronger
grounds for a private meeting, since the body will usually
be looking for a way to avoid litigation or mitigate damages.
The prohibition against discussing possible strategies
in private has been a serious problem for all governmental
bodies, and while this ruling will likely lead to further
litigation to interpret its full meaning and scope, this
decision will have an important and positive impact on
the ability of county commissions and other governmental
bodies to act in the best interests of their constituencies
to avoid litigation where possible, and resolve conflicts
at the least possible cost.
The plaintiffs in this case attempted to
file for rehearing of the Supreme Court's decision, but
their application was denied as untimely filed. Therefore,
the May 23, 2003 opinion is a final order. I suspect it
will not be the last word on proper application of the
Sunshine Law, or how this new ruling will apply in different,
but similar situations. However, it does provide some
much-needed guidance and brings governmental bodies a
step closer to being able to function properly and in
the best interest of the public while following the confines
of this important and well-intentioned law.
1 Auburn
University et al. v. The Advertiser Company et al.,
[MS. 1002096, May 23, 2003], ___ So.2d ___ (Ala. 2003),
quoting Penton v. Brown-Crummer Inv. Co., 222 Ala.
155, 160, 131 So. 14, 18 (1930) (quoting City of Benwood
v. Wheeling Ry., 53 W. Va. 465, 476, 44 S.E. 271,
276 (1903).
2 The Court hinted that it had problems with this
policy, but declined to address the issue since it had
not been raised at trial or on appeal.
3 Auburn University et al. v. The Advertiser
Company et al., supra.
4 See, Dunn v. Alabama State University board
of Trustees, 628 So.2d 519 (Ala. 1993); See, Dunn
v. Alabama State University board of Trustees, 628
So.2d 519 (Ala. 1993); Watkins v. Board of Trustees
of Alabama State University, 703 So.2d 335 (Ala. 1997).,
703 So.2d 335 (Ala. 1997).
5 See, Van Hooser v. Warren County Bd. of Educ.,
807 S.W.2d 230 (Tenn. 1991) and Baltrip v. Norris, 23
S.W.3d 336 (Tenn.Ct.App. 2000).
6 Auburn University et al. v. The Advertiser
Company et al., supra.
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