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In Legal Terms
- Pre-Convention Issue 2006
Interpreting the new Open Meetings Law
In the months since the new Open Meetings Law took effect, I have read several articles about governmental entities failing to comply with the law in some regard. In most instances the problems were not "intentional" violations but based upon either a misunderstanding of the law or a lack of awareness of its provisions. I am unaware of any lawsuits filed as a result of noncompliance, but some governmental entities have had to "undo" actions taken and start over in a properly convened meeting.
I am happy to report that none of the articles I have read involved a county commission. Based upon attendance at the training sessions conducted by ACCA staff last summer, and the calls I still receive asking for assistance in ensuring that the new law is followed, it is clear that Alabama's counties are determined to comply with this Act, and make every effort to follow both the letter and the spirit of the law. Unfortunately though, as with any new law, there are questions without clear answers and those charged with following it must look to the courts and the Attorney General's office for guidance on the law's proper application. As noted above, there are no cases yet to help understand the new Open Meetings Law, but the Attorney General's office has begun to issue opinions on certain aspects of the law, and I thought this column was a good opportunity to share some which are relevant to county government.
Opinion # 2006-068 - In March 2006, the Attorney General's office issued an opinion stating clearly that a regional planning and development commission is a governmental entity as defined by the Act, and that its deliberations must be conducted in an open meeting. The specific question asked was whether a commission could deliberate on applications for revolving loans in executive session, since these deliberations include a review of credit and financial records submitted to the commission by loan applicants. The Attorney General advised that since there was no specific exemption authorizing an executive session to consider credit and financial records of these applicants, the deliberations must be conducted in an open meeting. The Attorney General noted that these records were not protected under the Right to Financial Privacy Act or Freedom of Information Act, which apply to activities of federal agencies and departments only. However, the Attorney General did provide that any personal information, such as a home address or social security number, could be protected from disclosure under Alabama's Open Records Act.
Opinion # 2006-071 - In a March 21, 2006 Opinion, the Attorney General's office held - as it had under prior law - that a member of a governmental entity could not participate via telephone conference, and must be physically present at a meeting of the body to be counted towards establishing a quorum. The Attorney General noted that its Office has "consistently determined that members participating in board meetings must be physically present at the meetings to legally constitute a quorum" and that, "If the Legislature had intended to change the physical-presence requirement at meetings, it could have easily done so." Since the Legislature did not address that issue specifically, the Attorney General held that its prior rulings still applied.
Opinion # 2006-088 - On April 17, 2006, the Attorney General's office issued an important opinion addressing interviewing current public employees for possible promotion. This Opinion purports to address one of the most difficult aspects of the Open Meetings Law -- the proper use of executive session to discuss the "general reputation and character" of employees of the governmental entity. In this opinion, the Attorney General held that a governmental entity may convene an executive session to interview current employees in connection with promoting them to fill vacant positions, provided the positions to be filled do not require the applicant to file a Statement of Economic Interests with the Alabama Ethics Commission. Additionally, the executive session may only include discussions related to the general reputation and character, physical condition, professional competence, mental health, and job performance of the employee. The Opinion is based upon Code of Alabama 1975, § 36-25A-7(a), which allows for an executive session to discuss general reputation and character, physical condition, professional competence, mental health, and in some instances, job performance, of public employees, but specifically provides that the job performance of an employee required to file the Statement of Economic Interests cannot be discussed in an executive session.
This opinion may be helpful to counties in determining the parameters of when an executive session can be held to discuss certain issues related to a county employee. However, this is an extremely complicated aspect of the law - and this opinion may only serve to raise more questions about proper application of this section of the Act.
Finally, in an Opinion issued on June 20, 20061, the Attorney General made clear that both volunteer fire departments and volunteer fire associations are subject to the Open Meetings Law. As pointed out in the opinion, the definition of "governmental body" specifically encompasses such entities as volunteer fire departments which perform a governmental function and expend or appropriate public funds. As for volunteer fire associations, these groups do not qualify as a "volunteer membership association" exempt from the definition of a "governmental body", because they are not "comprised of public employees, counties, municipalities, or their instrumentalities". Instead, membership in these associations is limited to volunteer fire departments.
Each of the above-referenced opinions provides assistance to county commissions and other governmental bodies to better understand how this important new law should be interpreted and applied. Of course, there will be other opinions issued and eventually case law to help in this regard. In the meantime, please continue to contact the ACCA office with any questions or concerns about proper application of the law. We won't have all the answers, but will gladly offer assistance to help counties make the right decisions about how to proceed when questions arise.
1 At the time of publication of this article, this opinion had not yet been issued an official opinion number.
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