AEA Lawsuit Against State Board of Ed./Chancellor Moves Forward - WSFA.com Montgomery Alabama news.

AEA Lawsuit Against State Board of Ed./Chancellor Moves Forward

MONTGOMERY, Ala., July 26, 2007 -- Previous issues like alleged secret meetings or other subterfuge didn't find their way into discussions during Thursday's hearing in Montgomery County Circuit Court regarding the lawsuit filed by members of the Alabama Education Association claiming that the State Board of Education violated the Alabama Open Meetings Act and the Board's own policies and procedures during the selection process of current Department of Postsecondary Education Chancellor Bradley Byrne.

Judge Gene Reese listened to attorneys from the Board and the AEA and unlike previous hearings where AEA attorney James Anderson talked of Byrne being appointed in an "improper, illegal meeting" and that Byrne's selection was "already decided" in an "executive session," Anderson concentrated his arguments Thursday on what was in the notice of the special called May 10 meeting and again claimed the notice was insufficient and a violation of the Open Meetings Act.

Anderson had planned to have Alabama Press Association counsel Dennis Bailey testify at the hearing, but Bailey was out of town, according to Anderson and Bailey's office, and State Board of Education attorney Roger Bates had objected to Bailey's testimony; so, both sides presented their arguments for and against the admissibility of Bailey's testimony to Judge Reese.

Bailey is a recognized expert on the Open Meetings Act (OMA) and has given numerous briefings on the latest version of the Act passed in 2005.  Bailey was involved in the drafting and passage of the OMA.

Proffering Bailey's testimony Anderson told Judge Reese, "If there is a special called meeting of a state board...within 24 hours of the meeting...The meeting would be for a specific reason...You don't just call a meeting because you want to get together...The members of the Board...knew the reason..the reason and purpose should be posted as far as notice.  If they knew (on) May 9 they were specifically electing Mr Byrne as chancellor, it should be posted...They went and used general language..."

Defense attorney Stephen Fitts argued the objection and a motion to exclude and strike Bailey's testimony was made.  "We do have a motion to exclude and to strike... It's fairly simple...Mr. Bailey is an attorney...His testimony is being offered on the application of the OMA.  The content of the OMA is a legal conclusion...The law is clear that questions of law are legal conclusions and are improper testimony...including from an attorney...To cloak him with authority of an expert...would be improper. His testimony should be stricken."

Judge Reese told attorneys that the testimony "in part would be admissible...some would not"  but he denied the Board's motion to exclude Bailey's future testimony.   Both sides stipulated the deposition would happen at a later date.

But there was one key stipulation agreed to in the courtroom during a short hearing - that stipulation was that at the May 9 meeting of the board there were discussions that at the May 10 meeting Bradley Byrne would be considered and voted on as chancellor.

Anderson was prepared to call a witness to the May 9 school board meeting and what transpired since a transcript of the May 9 meeting is apparently not available.  Testimony would be "that all the members that were present knew the purpose of the May 10 meeting was to accept the resignation (of Renee Culverhouse) and vote and elect Bradley Byrne to be chancellor."

At first Board attorney Roger Bates objected, but Anderson countered, "They brought up Bradley Byrne...We have the documents."

Bates then responded, "I would certainly stipulate there was discussion of Bradley Byrne on May 9.  There was knowledge.  I can certainly stipulate that was clear. "  Judge Reese echoed Bates' words back to him, "There was certainly a discussion it would be discussed on May 10..."

Anderson wanted it clear that there was discussion "...at the meeting they would vote on...the 10th."  The parties then agreed to stipulate that there was discussion on May 9 that on May 10 Byrne's name would be brought up and a vote on his election would take place.

"That was important (the stipulation) to get that into evidence and I don't think it was a question.  They had to stipulate to it.  Everybody, when they showed up for the work session to determine how they were going to pick a chancellor, Gov. Riley presented to the board - 'Hey we don't have to do anything else I've got the man, it's Bradley Byrne.'  And then they passed out notices and the notice was filed at 3:27 p.m. noticing the meeting at 3:30 the next day.  They normally meet at 2 p.m. but they did that so they could get it in in the 24 hours," Anderson told me afterwards.

In previous hearings AEA attorney Edward Still had claimed the meeting on May 10 was "not adequately noticed."  Anderson stuck to that issue on Thursday saying his issue is what the notice did not contain and the implications that could have with other boards and meetings around the state.  After the hearing, Anderson said, "It's about following the law.  According to the law if you're going to have a called meeting - it doesn't need to be a secret called meeting. If you're going to call a meeting to buy a new garbage truck - just put it on there so the public will know."

"The notice didn't say anything other than they were going to accept Culverhouse's resignation and discuss the management of the postsecondary education.  All they had to do to do it right was say 'and we're going to discuss and vote on the election of Bradley Byrne.'"

"Now, would there have been a different outcome?  Probably not, but what they've done here is tell everybody - every school board, every county commission, every city council that they can have a special meeting and you don't have to say what it's about."

Anderson says the proper notice issue is important because other boards are watching what happens in this case.  "Most of these boards don't have people monitoring them.  Most of these boards across the state and we're not just talking about the State Board of Education, we're talking about every public board in the state of Alabama could have blind notices like this and deals could be made at one meeting and nobody have any time to react to it."

"It happened the other day up in Fairfield at the school board.  They fired a superintendent and didn't tell anybody.  It  could happen at the county commission meetings.  It could happen at any of these state boards.  If they can skate and say,'Look we can call a special meeting and do what we want to and we don't have to tell anybody.' 

"What we have to do is sometimes you have these lawsuits that are about sending a message and the message is just follow the law.  Don't have a secret meeting.  There's nothing to hide.  And let's don't encourage people to have secret meetings.  The Legislature passed this act so we would have people like you know what's going on.  If they're going to be firing the principal down in Conecuh County at a special called meeting they need to tell everybody that's what it's about."

Mr. Bates preferred to let his brief do the talking Thursday morning.  In his bench brief for the court Bates argued, "In the current suit, Plaintiffs have taken a shotgun approach to challenging the nomination of Chancellor Byrne due to numerous alleged technical deficiencies in the process that was followed..."

"Plaintiffs have stipulated that notices with respect to the May 9 and 10 meetings were posted on the Secretary of State's web site.  It is further stipulated that such notices included a description with respect to both the May 9 and 10 meetings, and were posted at least 24 hours prior to the meetings."

"Plaintiffs must thus argue on very narrow grounds that the Open Meetings Act was violated because the notices provided were not sufficiently descriptive.  This argument is unsupported by the plain language and meaning of the Act and unsupported by the record.  The general public and the Plaintiffs were notified of the meetings during which the challenged actions took place.  Plaintiffs were free to observe their government at work.  Plaintiffs' current counsel, Theron Stokes, attended and objected to the Board's nomination of Chancellor Byrne.  Because the Open Meetings Act has not been violated, the Court should dismiss with prejudice all of the plaintiffs claims under the Act."

"As mentioned above and alleged in Plaintiffs' Complaint, Bradley Byrne's name was mentioned as a candidate for the position of Chancellor in the May 9 meeting.  It is abundantly obvious that the circumstances of the need for a Chancellor had dramatically changed with the abrupt resignation of Chancellor Culverhouse the day before on May 8."

Bates' motion says the "May 10 Notice also contains a general description of the meeting as follows:  The purpose of this special meeting will be to accept the resignation of the interim chancellor and consider the administration of the Alabama Department of Postsecondary Education and The Alabama College System."

He says, "The May 10 meeting description is substantially identical to the description of every other Board meeting posted after enactment of the Open Meetings Act, where a Chancellor was appointed by the Board and the brief then lists  the notice language for several meetings:

  • For the July 11, 2006 meeting at which Renee Culverhouse was appointed:

"Regular meeting of the Board of Education and the Department of Postsecondary Education for the purpose of transacting those items of business within the power and jurisdiction of the Board in the governance of public two-year colleges in Alabama.  This meeting shall be a joint meeting for K-12 and Postsecondary Education."

  • For the July 27, 2006 meeting where Corts was appointed:

"[t]he purpose of this Special Meeting will be to ‘consider the administration of the Postsecondary Division."

  • For the March 2, 2007 meeting at which the Board accepted Corts' resignation:

"The purpose of this special meeting will be to accept the resignation of the interim chancellor and consider the administration of the Alabama Department of Postsecondary Education and the Alabama College System.  The meeting is open to the public."

Bates again argues "As is readily obvious, the Board's description of the May 10, 2007 meeting appropriately mirrors the regular description provided by the Board at every previous meeting since the adoption of the Open Meetings Act wherein a Chancellor was appointed.  Plaintiffs have never disputed such notice until this suit."

Anderson says the argument is disingenuous.  He told me Thursday that you couldn't just "get away with running the big red STOP sign" when you're finally nabbed by a state trooper "because you've been running the STOP sign every day" previously.  "You're supposed to stop at the big red sign."

The AEA's attorney for this case says, "This is the first time someone's said 'y'all can't do this.  They've been doing things the same way they were doing things before the law changed in 2005."

Trying to decide whether or not to move forward today, AEA attorneys were ready to argue their case.  The Board's attorney, Mr. Bates, told the judge he couldn't think of anything to say that wasn't in the brief and "we're happy to let you make a ruling..."

Reese then responded to Bates "that was going to be contrary to what I was thinking," to which Bates responded, "There's nothing I can say to you that's not in the brief..."

Anderson said he thought he might be able to depose Bailey within a week  Judge Reese wanted to know if Mr. Bates was going to want to respond to Bailey's deposition.  After praising Mr. Anderson's professionalism in keeping him informed as to what was going on, Bates said depending on what was in the deposition he would most likely "have the general counsel or some other lawyer" respond to the deposition.  I don't know precisely what he's going to testify to," said Bates.

Judge Reese said he would reset the hearing for about 45 days from now to give time for Bailey's deposition, the defense's response, and a transcript.

Anderson says unlike the defense, he's not sure he's going to agree to waive his right to further oral argument on the case.  "I think we'll probably want to argue to make sure.  As lawyers we always worry that even though it's in the brief not everything's exactly the way we want it."

Anderson said he was not surprised by Bates saying he didn't need to make an oral argument in front of the judge.  "They're just saying we've done it.  They're position is no harm, no foul.  Well our position is - wait a minute, you've got the law you're supposed to follow it."

"In about 45 days there will be a hearing.  That will give us enough time to take Dennis' deposition and give them enough time if they decide to...I don't know who they're going to have that's going to say - 'no, the purpose of this act is so that nobody will know.'  I mean in the act itself it says the purpose is so the public can know."

During today's hearing before Montgomery County Circuit Judge Gene Reese the parties entered into other stipulations mostly to do with exhibits  consisting primarily of two years worth of State Board of Education meeting notes and notices."

Chancellor Byrne has said in previous interviews that "you can't let the litigation control the way you run your business, or, in this case, the way you run the system.  You have to run the system and do it in a way of keeping within the law, but at the same time we have to run the system and not let anybody run off to court and scare us anytime they want to file a lawsuit..."

Reported by:  Helen Hammons

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