Part Three In A Series By Mike Hobson
In this last article of our series we will talk about the penalties for violations of Alabama’s Open Meetings Act and what you, as a citizen, can do to report violations of the Act.
- 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.
The Association of County Commissioners of Alabama publishes a simple checklist that county officials can follow to be informed, follow, and avoid violations of the law. A copy of the checklist is available at this link. We published a link to the complete text of the Open Meetings Act in our last article but here it is again at Code of Alabama Sections 36-25A-1 et. Seq.
ENFORCING THE ACT
The law makes it difficult for an individual citizen, when acting alone, to file and prosecute a claim for a violation of the Act. No surprise here.
Prosecution for a violation of the act may be sought by civil action brought in the county where the governmental body’s primary office is located by any media organization, any Alabama citizen impacted by the alleged violation to an extent which is greater than the impact on the pubic at large, the Attorney General, or the district attorney for the circuit in which the governmental body is located; provided, however, that no member of a governmental body may serve as a plaintiff in an action brought against another member of the same governmental body for an alleged violation of this chapter.
A verified complaint must be individually served on each person named (councilman, board member, or commissioner for example) in the complaint and defendants have 7 days to file a response. An initial hearing must be held within 10 days.
It appears from a reading of the Code that these cases are presented to a Circuit Judge in a non-jury setting. It is up to the Plaintiff to establish by a preponderance of the evidence that a violation has occurred. Remember, this is a civil case so the burden of proof is far less than it would be for a criminal trial.
Nevertheless this process makes it burdensome for a citizen. Can you imagine trying to even file the paperwork required to bring a civil complaint in a circuit court, serve a summons and complaint properly on each defendant, and then appear before a circuit judge to present the case without formal legal training? Not likely. You would have to spend a sum of money to hire a lawyer to represent you and most citizens are not going to spend their money for that purpose.
Another course of action when there is clear evidence that a public body has violated the law is to take your proof to the local District Attorney and ask the DA’s office to pursue civil prosecution of the violation. Under the statute the duty to prosecute violations under this Act could fall on the State. If the local DA refuses then you can seek relief at the Attorney General level. If your case is strong then you as a citizen (or a group of citizens) should not have to bear the legal expense that it would take to hire a private attorney to represent you and bring a civil action under the Open Meetings Act; but you do have that option. In order to convince a DA or AG to move you will have to show that the reported violations are harming the general public.
The Bibb Voice contacted Bryan Jones, the local Assistant District Attorney for Bibb County. He stated that he has never received or been asked to handle a claim under the Open Meetings Act and suggested we contact the AG’s office for information. We contacted the Attorney General’s Office to ask about how a complaint would be handled. We received a reply from Joy Patterson, a media spokesperson from the AG’s office, telling us that the remedy is a civil action, something we already knew, and providing us with an internet link to the Alabama Code. I like to call this a circular response. You might have another name for it.
Updated Article 8/24/2018 To Include Response From AG’s Office Below
We followed up and asked Joy Patterson of the Attorney General’s Office: “Under what conditions would the AG’s office handle a citizens complaint and file a civil action as described in 36-25A-9(a)” and received the following written reply:
“As with other matters that are generally reviewed and handled locally, it is the practice of this office to advise potential complainants about the open meetings law that they should contact local district attorneys. Also, as this office is prohibited from providing private legal advice, it is the practice of this office to advise citizens seeking to file civil complaints to contact a private attorney.”
PENALTIES FOR VIOLATIONS
If violations are established defendants may be subject to civil fines up to $1,000 for each meeting where a violation occurred or 1/2 of the official’s monthly salary, whichever is LESS. The agency may not pay a fine that has been imposed but the agency can pay the defendant’s cost of his/her legal defense.
OPINION: THE CURRENT BURDENSOME PROCESS SHOULD BE AMENDED
The Bibb Voice spoke with Senator Cam Ward about the burdensome process that a citizen must now follow to lodge a complaint about violations of the Open Meetings Act and asked if future revisions to the law might make it easier to report and prosecute violations. Senator Ward said that “the real model is the Florida statute. They have a review board that is a clearing house for the frivolous but also had the authority to order govt agencies to comply immediately. It seems to have worked out well for them”.
This is the election season my friends. Our local legislators will be campaigning in your area. The Bibb Voice urges you to ask for improvements in the Open Meetings Act when you have your chance to speak to your representatives in Montgomery. Make your vote count.
The opinions expressed in this article are solely the opinions of the writer and not necessarily the views or opinions of The Bibb Voice. THANKS for reading. Your comments are welcome. Scroll down to the comments section below to leave your thoughts.