A bill that would radically revamp Alabama's Open Meeting, or Sunshine Law, was passed by the House Judiciary Committee last week, and is expected to be debated by the full House next week.The original bill defined good name and character of an individual, provided detailed rules for publicly announcing meetings, and replaced the criminal violation in the old law with stiffer civil penalties. The new version also states explicitly that public utilities such as water and sewer boards are subject to the Open Meetings Law, which, due to a recent Supreme Court ruling, they are currently not.
It also expanded the list of exceptions that would allow a body to go into executive session from two (good name and character and privileged communication with legal counsel) to nine, including exceptions for pending land and other major purchases and homeland security issues.
The version of the Sunshine Law that emerged from committee this week had three amendments to it. One of these is primarily semantic in nature, but the other two could be significant.
The first major amendment adds a 10th exception that would allow executive sessions "to deliberate and discuss evidence or testimony presented during a public hearing if the governmental body is acting in the capacity of a quasi-judicial body, votes upon its decision in an open meeting, and issues a written decision that may be appealed to a circuit court of the state of Alabama." This exception would apply to bodies such as civil service boards.
The other amendment deals with penalties for violations of the act. Before the bill was submitted to the House Judiciary Committee, it provided for "civil penalty of up to $1,000 per violation on each member of the governmental body voting to conduct an executive session and remaining in attendance after discussions begin during an executive session who knew or should have known was not authorized by this act."
The amended version, however, adds "such penalty shall not exceed 50 percent of one month's salary of said public officials or $100, whichever is higher."
Rep. Steve Hurst (D-Talladega) said he had not read the amended version, but said "on the surface, it doesn't seem to have gained any teeth. But I've always believed that any public body should be more open with the public, especially regarding tax money and people employed by the citizens."
Hurst declined to comment for the record on the civil service exception.
Rep. Ron Johnson (R-Sylacauga) said he had not read the amended bill either, but added that "the penalty needs to be sufficient to deter violations. For local bills, you can't include civil penalties, but in those cases violations would bring in the local district attorney or the A.G.’s office. There always needs to be some mechanism for enforcement."
Johnson added that it might be a good idea to consider adding a provision to the bill that would allow the press to be present during an executive session, but provide penalties for newspapers that printed anything from that session immediately. "A lot of these personnel situations, it can be like a grand jury, where you can destroy someone's entire life in the community, even if they are exonerated."
Still, Johnson said, "I support openness unless it really does involve a question of good name and character. There are some things, though, that don't need to be made public until they are elevated by an district attorney or the attorney general, at which point they will become public as an indictment."
Rep. Barbara Boyd (D-Anniston) pointed out that she does not serve on the committee making the amendments, and had not read the amended bill. The changes did not surprise her, however.
"That happens with a lot of bills," she said, "we see that all the time. Sometimes the bill can be amended in the full House, sometimes it just gets voted up and out. A lot of that is just going to depend on who the lobbyists are and how hard they are working for or against something."
Sen. Jim Preuitt (D-Talladega) was also unfamiliar with the changes to the bill, and declined comment.
Rep. Blaine Galliher (R-Gadsden) who sponsored the bill and has pushed it through the legislative process during the session, could not be reached for comment Friday.
Rep. Jim McClendon, R-Springville, who co-sponsored the bill with Galliher, said he had not seen the bill with the changes made in the Judiciary Committee.
After being told what they were, he agreed with all the changes, but expressed concern over the 10th exception to the bill, which would allow a governmental entity to go into an executive session to discuss a public hearing of a quasi-governmental body — like a planning commission or civil service board.
"I would have to have that exception explained to me," McClendon said. "If it can't be explained, it might not be necessary."
McClendon said he agreed with the change that would limit the civil penalty to half an elected official’s salary or $100, whichever is greatest, with an overall cap of $1,000.
"If I served on a board and only made $100 a month and had to pay $1,000 for somebody else's decision to go into executive session, I might think twice about running for office," he said.
He said he believes the bill is far better than the current law.
"I truly believe in the public's right to know," McClendon said. "Even if you have well-meaning people going into secret meetings for what they consider a legitimate purpose, the secret meeting casts a cloud of suspicion over the government entity."
Rep. Randy Wood (R-Anniston), also a co-sponsor of the bill, said he agreed with the changes, but admitted the change in civil penalty might be cause for concern.a
While he agreed with McClendon's idea that it protects those who make little money in public office, he also said governmental bodies should consider high civil penalties before they break the law.
He said, however, that an honest mistake can be made if a person is new to elected office.
"Somebody can legitimately get into trouble when they are newly elected and don't know all of the laws that pertain to public service," Wood said. "But you still have to do what's right, no matter what the civil penalty is."
Wood said he was not sure about the 10th exception that allows a body to meet in secret to discuss the public hearing of a lesser body. He said he would seek deeper explanation before deciding if he supports the change.
Both lawmakers said they will go over the bill "line by line" when the session begins next week and the bill is put on the House calendar for debate.
