State Board Files Answer to AEA Complaint Regarding Chancellor Hiring Process

MONTGOMERY, Ala., June 6, 2007 -  Attorneys representing the State Board of Education filed their answer to the complaint filed by attorneys working for the Alabama Education Association (AEA) which calls into question the hiring process undertaken to select new chancellor Bradley Byrne to head the state's postsecondary system.

AEA lawyers had fought to have a temporary restraining order (TRO) issued to prevent Byrne's contract from going forward alleging the hiring process violated Alabama's Open Meetings Act.  Judge Gene Reese denied the motion asking for the TRO and the case will be set for a hearing in Montgomery County Circuit Court.

The board's answer says, "These defendants affirmatively state that they have followed state law and Board policies in the selection, nomination, and appointment of Mr. Bradley Byrne.  They specifically deny that they have circumvented stated law or their own policies and further deny that they have denied the public access to meetings.  They have not denied any applicant the opportunity to be considered for the Chancellor's position."

The filing says the board denies "that the express purpose of the work session on May 9, 2007 was to discuss qualifications and the process by which a search would be made for hiring a permanent Chancellor."  Instead the board filing says "the express purpose of the work session...was to discuss the search for a permanent Chancellor."

Countering AEA's argument that "Although the public was advised that defendants' May 9, 2007 work session was for the express purpose of discussing the search for the permanent chancellor, defendant Riley instead stated that he wanted to hire State Senator Bradley Byrne as permanent Chancellor of the State Postsecondary 2-year college system."  Attorneys for the Board say, "Following considerable discussion regarding the search for a permanent Chancellor and given the unexpected resignation of former Interim Chancellor Culverhouse, Governor Riley initiated the possibility that Mr. Bradley Byrne might be willing to serve as Chancellor at the May 9, 2007, meeting."

Board attorneys demand proof that at the May 9, 2007 meeting board members were given and required to sign a statement agreeing to a special called meeting the next day.  "These Defendants state that the Board members present on May 9, 2007, in accord with board policy and procedures, gave unanimous consent to a special-called meeting on May 10, 2007, and directed that proper notice be given as shown in Exhibit K to the Complaint."

The Board's filing with the court says the "notice and agenda for the May 10, 2007, meeting complied with applicable law and informed the public of the meeting and general nature of the topics to be discussed."  The pleading denies that Governor Riley made a motion for the hiring of Byrne saying instead "after conducting public deliberations, Board member David Byers made a motion to nominate Mr. Bradley Byrne subject to certain conditions as permanent Chancellor."

The filing goes on to deny "specifically including any and all allegations of a secret or illegal meeting or improper deliberations taking place at any time.  The Board acted at all times in accordance with state law, specifically the Open Meetings Act."  The complaint filed by AEA lawyers alleges that "prior to the May 9, 2007 work session, defendants Riley, McKinney, Peters, Stephanie Bell, Ray and Caylor communicated via telephonic, electronic or other means and deliberated the nomination of State Senator Bradley Byrne and defendant Riley's motion to hire Byrne as Permanent Chancellor of the State Department of Postsecondary Education."

The board answer says, "Prior to the scheduled and noticed May 9, 2007, work session, none of the Defendant board members were aware that Governor Riley would introduce Mr. Bradley Byrne for consideration as permanent chancellor."

The filing says the board admits that it has adopted "policies and guidelines for meetings, but expressly deny that they have established any 'preferred selection process for determining the qualifications and hiring of Chancellor."

The board affirmatively states that "they did not conduct any secret meeting and they did not cast votes other than in a public meeting...The Board has the authority to implement policies and it has enforced those policies..."  The defendants say the policy relating to personnel matters laying on the table for 30 days "does not apply to a Chancellor, which is a public official who occupies a statutorily-created office."

The Board denies "the implication that Mr. Bradley Byrne is not knowledgeable in postsecondary institution administration and demand strict proof thereof."

In their affirmative defenses attorneys for the Board says that the plaintiffs' claims are barred by sovereign immunity, governmental immunity, discretion function immunity, qualified immunity, legislative immunity and state agent immunity among other defenses.  It also says the plaintiffs "lack standing to bring some or all of their claims."

There will be a preliminary court hearing on this matter, according to the Alabama Open Meetings Act must be "within 10 days of the defendant's response, or 17 days of the complaint if there is no response, a preliminary hearing will be held."

"At the hearing, the complaining party must establish:

1. That the meeting occurred;

2. That each of the named members was present at the meeting; and,

3. That substantial evidence exists of the complained of violation.

  • If the court finds that the plaintiff met his/her burden, the judge will set a discovery schedule (a schedule for the sharing of information and evidence) and set the matter for a hearing on the merits."

Reported by Helen Hammons