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In Legal Terms
- Volume 53, Number 2 - 2009
Is your county still following the Open Meetings Law?
The law was adopted in 2005...county commissioners and county administrators have come and gone...so it may be time for a refresher course in the finer points of Alabama’s Open Meetings Law.
In addition to provisions on what constitutes a meeting, how to provide proper notice of meetings, and when a body can meet in executive session, Alabama’s Open Meetings Law requires that all governmental bodies conduct meetings in accordance with their established rules of procedure.
Code of Alabama 1975, § 36-25A-5 (a) states in part that, “meetings shall be conducted pursuant to the governing body’s adopted rules of parliamentary procedure not in conflict with laws applicable to the governmental body.”
While this provision of the law does not draw as much attention as concerns about holding an executive session or meeting without proper notice, it is an extremely important aspect of the law, and one that every county commissioner should pay careful attention to during all county commission meetings (and preparation therefore).
The law does not prescribe specific rules of procedure – only that the body adopt and follow them. Failure to adopt rules is a violation of the Open Meetings Law.
Moreover, any county commissioner failing to comply with the county commission’s adopted rules of procedure is in violation of the law and subject to fines up to $1,000 per violation.1
These are the same penalties set for conducting an “illegal” executive session or failing to provide proper notice. Therefore, compliance with this requirement is every bit as important as compliance with the other provisions of the law.
Following passage of the new Open Meetings Law in 2005, ACCA staff conducted trainings around the state outlining every aspect of the law in an effort to ensure that all county commissions were educated on the law prior to its Oct. 1, 2005, effective date.2
Additionally, we developed model rules that counties could adopt or use as a guide in creating rules that fit local practice and preference, emphasizing repeatedly the importance of having written rules adopted and in place by Oct. 1, 2005.
Four years and two rounds of county commission elections have passed since the Open Meetings Law took effect and counties originally adopted their rules. I would also venture to guess that there are at least 10 new county administrators.
It seems like a good time to revisit this issue to make sure that those newly-elected county commissioners and newly hired county administrators are aware of this mandatory provision in Alabama law. It is also probably a good idea to remind the “old timers” why it was so important to put written rules in place.
As noted above, the Open Meetings Law does not include requirements regarding what should be included in a governmental body’s rules of procedure. Therefore, with a few exceptions discussed below, the county has flexibility regarding what to include and how to structure the county commission meeting.
ACCA staff has always recommended that the county commission keep its meeting rules as simple as possible, and the model rules developed reflects this view. The rules should include how motions are made, order of business, procedure for public comment, etc. However, adopting overly-detailed rules, such as Robert’s Rules of Order, only leads to unnecessary complication, and possibly unnecessary conflict.
There are some state laws that dictate certain procedural aspects of a county commission meeting. For example, the County Modernization Act defines a quorum of the county commission as “a majority of the members serving on a county commission,” including a probate judge or chair elected countywide. Code of Alabama 1975, § 11-3-7.
That section also prohibits any vote by a county commission “unless a quorum is present in the meeting chamber while the vote is taken and the matter is approved by an affirmative vote of the majority of the members present and voting.” The chair presides over all meetings, but only votes in case of a tie unless he or she was elected to represent a district. Code of Alabama 1975, § 11-3-20(a).
The Open Meetings Law specifically authorizes voice votes, except for motions to go into executive session. However, it specifically prohibits voting by secret ballot. Code of Alabama 1975, § 36-25A-5 (b).
There are other statutory provisions impacting the county’s rules of procedure, such as rules for setting meetings and providing notice. See, Code of Alabama 1975, § 11-3-8. It is beyond the scope of this article to cite all pertinent laws. Therefore, counties should consult with ACCA staff or their county attorney to make sure that any rules adopted or amended comply with state law.
The rules of procedure adopted by the county commission can certainly be amended. However, any changes would have to be voted on by the body before taking effect. The model rules proposed by ACCA include a provision that changes will not take effect until the next regular meeting of the county commission following adoption of the changes. Counties contemplating changes must look at their current rules for any language related to how to amend and when amendments take effect.
I’m not recommending that counties amend their adopted rules of procedure. In fact, if it ain’t broke, don’t fix it. However, if the county commission is not satisfied with the current rules, it should amend them rather than ignore them.
What I am trying to do here is to impress upon all county commissioners and administrators how important it is that rules of procedure be adopted, understood and followed. Every county commissioner should have a personal copy of the county’s rules of procedure and endeavor to follow them closely. Ignoring the rules can be very expensive and lead to bad press. Therefore, understanding and living by the rules is a must!
1 Under Code of Alabama 1975, §36-25A-9(g), the maximum penalty for a violation of the Open Meetings law “shall not exceed one thousand dollars ($1,000) or one half of the defendant’s monthly salary for service on the governmental body, whichever is less.” A separate penalty is set for each separate violation.
2 The manual used in those trainings is available from the ACCA Online here.
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