Ken Hare In Depth: Legislature must protect public's right to know

MONTGOMERY, AL (WSFA) - Through several rulings that have gutted the Alabama Open Meetings Act, a majority of the Alabama Supreme Court has proved itself not to be a friend of the public's right to know how government officials conduct the public's business.

That makes it crucial that the Alabama Legislature repair the damage to the Open Meetings Act through companion bills introduced in the current session by Sen. Cam Ward, R-Alabaster, and Rep. Mike Hill, R-Columbiana.

Some background: At one time many years ago, Alabama had a relatively strong open meetings law that made it difficult -- except in limited situations spelled out in law -- for public bodies such as school boards, county commissions and city councils to hide their actions and deliberations from the public.

But elected officials in Alabama have shown an amazing talent at finding loopholes that allow them to conduct the public's business in secret. So over the years, those loopholes and adverse court rulings slowly eroded the public's right to know how its business was being conducted.

So in 2005, a group of citizens and elected officials set out to close those loopholes with a rewrite of the state open meetings law. That effort, led by the Alabama Press Association, succeeded in getting a new law passed with strong support from Alabama lawmakers.              But elected officials continued to search for loopholes in the law to allow them to conduct public business behind closed doors.

Like rodents, several school boards and county commissions nibbled away at open meetings protections in the 2005 version of the law. But then the Alabama Supreme Court came on more like an artillery battalion, loading its cannons and blowing huge holes in the public's right to know.

In one ruling, the court said there is no requirement for the Legislature to hold open meetings. Another ruling held that members of the public do not have standing to bring suits under the Open Meetings Act if the civil penalty is paid to the state -- a ruling that many observers feel essentially would eliminate virtually every member of the public from bringing an open meetings lawsuit.

Another allowed committees and subcommittees of government bodies to meet in private to discuss and decide issues before holding a full meeting to vote on them.

This last one strikes especially close to home, since it results from a case involving the Montgomery County Board of Education.

Readers may recall that case involving the school board using a series of orchestrated secret meetings on who would be the next school superintendent to avoid having to hold public discussions on the issue.

The school board's ploy -- and the subsequent state court ruling upholding it -- flies in the face of the intent of the Open Meetings Act, which states that it is "the policy of this state that the deliberative process of governmental bodies shall be open to the public." Note the phrase "deliberative process" -- that means not just the vote, but also that the public has a right to know about the discussions and debate that lead to that vote.

The school board arranged it so that there were never four members of the board at any one time in a meeting, so therefore there was never a quorum. All of the significant discussions were held behind closed doors. Then the board simply met openly and rubber- stamped what its members had discussed secretly.

This ruse -- called "serial meetings" -- has been outlawed in many states. But the Alabama Supreme Court has ruled it is not illegal here.

The justices who allowed this end run around the Open Meetings Act essentially laid out a blueprint for how boards and commissions throughout Alabama can avoid meeting the intent of the state's open meetings law. So it should not be surprising that the practice has become all too common.

Just this week, reported that a majority of Jefferson County commissioners admit that they discuss issues ahead of votes avoiding having a quorum present at any one meeting.

The changes in the bills introduced by Ward in the Senate and Hill in the House would simply close these loopholes created by the court rulings.

Among the supporters of the bills is Gov. Robert Bentley, who said last week,  "I think it's so important that any organization, any entity that is supported by taxpayer dollars should always be open to the press and it should always be open to the people."

The word "transparency" is bandied about by all sorts of elected officials, including many legislators. If lawmakers truly believe in transparency in government, they will ensure that the legislation proposed by Sen. Ward, Rep. Hill and Gov. Bentley is passed in the current legislative session.

Copyright 2014 WSFA 12 News.  All rights reserved.

Ken Hare was a longtime Alabama newspaper editorial writer and editorial page editor who now writes a regular column for WSFA's web site. Email him at