PART TWO IN A SERIES by Mike Hobson
In our first article about the Alabama Open Meetings Act we talked about the importance of knowing and abiding by the requirements of the law. It is important that our elected officials know the law and equally as important that citizens understand at least some of the law so they can point out when officials are not complying. In our followup article we will talk about:
- Who does the OMA apply to?
- What are the Notice Requirements that must be given before conducting a meeting?
- What are the requirements for conducting a closed door meeting?
By the way, this column is not a legal treatise so if you are a lawyer reading this there is no need to call me out. Our intention is to direct interested citizens to where they may find the law, and not to give legal advice in this article. We will not be interpreting the law here but we may restate or summarize what has already appeared in print in other publications. Direct quotes from the Alabama Code (statutory language) appears in red. If you think the Open Meetings Act does not apply to you or to your organization that would be between you and your legal counsel. If you would like to leave a public comment on this article you will find a way to do that at the bottom of the page.
So let’s begin with who the OMA (Code of Alabama 36-25A-2) applies to:
1. Municipal governing body
2. All municipal “boards, bodies, and commissions” which “expend or
appropriate public funds”; and,
3. All municipal “multimember governing bodies of departments, agencies,
institutions, and instrumentalities “including, without limitation, all corporations
and other instrumentalities whose governing boards are comprised of a
majority of members who are appointed or elected by” the municipality.
So for example, if you are on any elected board, appointed boards such as Water and Sewer Board, Park & Recreation Board, Airport Board, Library Board, Historic Preservation, Zoning, Industrial Development, or almost any board where you have been appointed by a County Commission, Mayor or Council, then your meetings are probably subject to the Act. Industrial Boards are subject to the Act, a Chamber of Commerce is usually not because they are funded by the members.
In particular, if you are responsible for spending public (tax dollars) you must comply with all provisions of the open meetings law. If you think you are exempt from the law get into the fine print, which you can reach by clicking on the links available in this article, or consult your lawyer.
For example; Richard Kemmer, Attorney for the Bibb Medical Center, provided The Bibb Voice with this information: “Bibb Medical Center is operated by The Bibb County Health Care Authority. As a duly organized health care authority, board meetings are not subject to the Open Meetings Act. Health care authorities are specifically exempted from the Open Meetings Act by statute. As a result, meetings of the board of the health care authority are not open to the public.” The referenced statute is Code of Alabama 22-21-316(c).
NOTICE REQUIREMENTS: Prior to holding a meeting the public must have an opportunity to know a meeting is being held. Notice must be posted in a public place. The requirements are as follows:
At least 7 days before a regular or scheduled meeting a written notice must be posted on a bulletin board at city hall, commission building, court house, library or other public place. The notice must contain the time place and location and agenda or purpose of the meeting. Emergency meeting notices must be posted at least 24 hours in advance (there are some exceptions, see Code link above).
For standing meetings the Secretary of State has provided a convenient Website where government can post legal notices for government agencies. The site is here. The Bibb Voice did not find any agency in Bibb County that is currently utilizing the State website to post notices of regular meetings. If you visit this site you can register your email address and receive notices in your inbox of public meetings that you are interested in.
The Act requires that: if practicable, a governmental body other than those with statewide jurisdiction, in addition to the posting requirements, shall provide direct notification of a meeting, as defined in Section 36-25A-2(6)a., to any member of the public or news media covering that governmental body who has registered with the governmental body to receive notification of meetings.
CLOSED DOOR MEETINGS: This is the subject that seems to create the most confusion, and probably the most violations, in the law. Often called Executive Sessions, these meetings are called to take public meetings behind closed doors to discuss topics out of public view.
Bibb County Senator Cam Ward has recognized the need to strengthen Alabama’s Open Meetings Law and pushed through the 2015 amendments to the Act. He has noted that one of the weaknesses that remains has to do with closed door meetings. We contacted Senator Ward for this article and he said “I believe since the law was last re-written that some have found loopholes and exploited them. We need to close those loopholes and increase the penalty for those who violate this law.”
There are limited reasons that public meetings may be taken private and there are strict procedural rules that must be followed to invoke a closed door session. Specifically, there are only nine (9) enumerated reasons that an Executive Session may be invoked.
Once an Executive Session has commenced there are limits on what may be done during the session. For example, deliberations may not occur during a closed door session and votes may not be taken behind closed doors. A government body could hear a real estate offer to sell, buy, lease, or rent real estate but if an agreement is reached with a buyer, seller, etc., the contract and the terms must be publicly disclosed and voted on in public before execution of any contract.
The most frequently used reason for Executive Session is Reason #3. The precise wording of the statute is set out below:
(3) To discuss with their attorney the legal ramifications of and legal options for pending litigation, controversies not yet being litigated but imminently likely to be litigated or imminently likely to be litigated if the governmental body pursues a proposed course of action, or to meet or confer with a mediator or arbitrator with respect to any litigation or decision concerning matters within the jurisdiction of the governmental body involving another party, group, or body. Prior to voting to convene an executive session under this exception the governmental body shall receive a written opinion or oral declaration reflected in the minutes from an attorney licensed to practice law in Alabama that this exception is applicable to the planned discussion. Such declaration shall not otherwise constitute a waiver of the attorney-client privilege. Notwithstanding the foregoing, if any deliberation begins among the members of the governmental body regarding what action to take relating to pending or threatened litigation based upon the advice of counsel, the executive session shall be concluded and the deliberation shall be conducted in the open portion of the meeting or the deliberation shall cease. (Emphasis Added)
For more thorough detail of Executive Sessions you can read the statutory language of the Code of Alabama by clicking on the link above. Executive Sessions are also defined in the raw language of the amendments set out in Acts of Alabama 2015-340 and 2015-475.
The procedure that must be followed to invoke a closed door meeting or “executive session” is also clearly spelled out in the Code. The process is set out in Code of Alabama 36-25A-7(9)(b):
(b) A governmental body desiring to convene an executive session, other than to conduct a quasi-judicial or contested case hearing, shall utilize the following procedure:
(1) A quorum of the governmental body must first convene a meeting as defined in Section 36-25A-2(6)a.1. and 2.
(2) A majority of the members of the governmental body present must adopt, by recorded vote, a motion calling for the executive session and setting out the purpose of the executive session, as provided in subsection (a). If subsection (a) requires an oral or written declaration before the executive session can begin, such oral or written declaration shall be made, prior to the vote.
(3) The vote of each member shall be recorded in the minutes.
(4) Prior to calling the executive session to order, the presiding officer shall state whether the governmental body will reconvene after the executive session and, if so, the approximate time the body expects to reconvene.
NEXT ARTICLE IN THIS SERIES
- How to comply with the Open Meetings Act.
- Penalties for violating the Open Meetings Act.
- What you can do as a citizen to report violations.
If you would like to leave a public comment or question about this article scroll down to the comments section below and type in your response. We welcome your comments.