TALLADEGA The Alabama Supreme Court ruled unanimously Friday that the Talladega Water and Sewer Board is a public entity, and as such is subject to the state's Open Records Act.In addition, it found that employee disciplinary records relating to the theft of some $91,000 in board funds should have been public once the personnel appeal process had run its course. And it ruled that the audit detailing the theft, which was the subject of a pending criminal investigation, was not shielded from release by the board, only release by the investigating agency.
The decision upholds much of an earlier ruling handed down by former Talladega County Circuit Judge Jerry Fielding in October 2002.
The initial ruling came in a suit brought against the board by Consolidated Publishing, parent company of The Daily Home. At the time, the paper was investigating the theft of some $91,000 in board funds and the subsequent termination of three board employees.
The board and board manager George Montgomery argued through their attorneys Jake Montgomery, who is Montgomery's brother, and Steve Adcock, as well as through George Montgomery's attorney, Charlie Gaines, that the board was not subject to the Open Records Act. The board's contention was that it had no obligation to provide the records requested.
The argument was based at least in part on a Supreme Court ruling in favor of the Selma Water Board, which held that that body was not subject to the Open Meetings Law, or "Sunshine Law," which is a different statute altogether.
The attorneys also argued that, even if the Open Records Act was applicable, many of the documents requested fell under recognized exceptions set forth previously by the Supreme Court in Stone vs. Consolidated Publishing.
Specifically, these exceptions cover "sensitive personnel issues" and "pending criminal investigations."
The board's lawyers argued that a special audit conducted by the Talladega firm of Camp and Associates was part of a pending criminal investigation.
Personnel files for three terminated employees fell into the sensitive personnel issues category, according to the board's argument.
Reactions
The newspaper has had off and on disputes over public records with the board since 1998, and Daily Home Editor and Publisher Carol Pappas said she was glad the issue has finally been resolved.
"This unanimous ruling from the Supreme Court of Alabama ought to settle the question once and for all. The Talladega Water and Sewer Board is a public body and is subject to the Open Records Law of this state," she said.
"It took us a year and a half to finally have the state's highest court agree, but it was worth the fight. This is a win not only for the people of Talladega, but the people of Alabama.
"It means this board or any other board that tries to withhold crucial information to which the public is entitled is against the law. It's that simple.
"And we are ecstatic that the Supreme Court underscored our stand on the public's right to know with its decision," Pappas said.
Gaines said Friday that he was out of town and had not had an opportunity to read the decision in its entirety, but did comment that "it sounds like a reasonable decision and I'm glad to finally have a clarification on the law, so we can put all of this to rest."
Adcock and Jake Montgomery could not be reached for comment Friday afternoon.
Board member Lawrence McGraw said he had not seen the opinion either, and would have to "think about the implications of that for a while" before offering a public comment.
Board member David McGhee had not seen the decision either, but said, "I guess we'll just have to accept what they say and go on from here."
Board chairman Wayne Kearley and board member Wayne Miller were also unavailable for comment.
The fifth member of the board, Dan Waites, was not a member when the suit was filed or when the board agreed to appeal Fielding's ruling.
George Montgomery, who officially retired Jan. 1 as general manager, was also unavailable.
Daily Home attorney Dennis Bailey of Montgomery commented, "While the opinion did not accept all of our arguments, it is well reasoned and well written. Justice Harold See (who wrote the opinion) and the other members of the court will hopefully be proud of this opinion in years to come, since it makes clear that boards responsible for important municipal functions such as water and sewer service are subject to the Open Records Act. The fact that the decision was unanimous indicates the importance the court saw in resolving this issue in favor of public access. And I salute The Daily Home for having the will to see this through."
Pell City attorney Elizabeth Parsons, who also represented The Daily Home, said she was "pleased to have most of Fielding's ruling affirmed. This truly does clarify the public's right to know the operations of an essential public service. I hope we can also clarify the pending investigation, and I know we look forward to re-establishing a good working relationship with the board in the future.
The Rulings
Fielding's ruling rejected the argument that the board's records were not subject to disclosure outright. On the other issues, however, the circuit court ruling split the difference.
At the time of the trial, one of three employees, Pat Borden, had been charged with theft of property in the first degree and was facing a grand jury indictment. She was indicted in November, and entered a guilty plea in September 2003. She was sentenced by Fielding to probation, along with $20,000 in restitution to the board. Since the board's bonding company reimbursed the stolen funds before Borden's conviction, any remaining restitution would be made to the company, not the board.
Since Borden's termination as a board employee was not under appeal at the time, Fielding ruled that her files should be turned over immediately. He deferred ruling on the other two until such time as they had exhausted their appeals.
He also ruled that the special audit, then in the hands of the Talladega County District Attorney's Office, was part of a pending criminal investigation, and should not be made public until that investigation was complete. District Attorney Steve Giddens provided The Daily Home with a copy of the audit after Borden pleaded guilty.
George Montgomery and the board initially said they would not turn over Borden's personnel file as ordered until they had consulted their respective lawyers. At its next regularly scheduled meeting, the board voted unanimously and without public discussion to appeal the finding that it was subject to the Open Records Act.
The Daily Home subsequently filed a cross appeal asking for clarification on the Stone exceptions.
Fielding's ruling on the pending criminal exception was reversed and remanded back to Talladega County. A footnote to the decision notes that "for example, a record that would ordinarily be subject to disclosure under the open records act does not become private simply because it is given to law enforcement personnel."
This echoes an attorney general's opinion frequently cited by Giddens during discussions of the special audit. Giddens' understanding, as he explained at the time, was that the fact his office was conducting an investigation to which a document was related would not preclude the board from publishing it, even if his office could not release it.
Bailey, who represents the Alabama Press Association and represented The Daily Home in this case, explained that the Supreme Court ruling on this issue meant "there will be further proceedings before Circuit Court to determine if those records, the special audit, are within the exemptions to the statute. I think the footnote indicates that the court thinks that is highly questionable."
Since The Daily Home has already obtained the audit, this question "may be moot," Bailey added. "But hopefully this can be handled quickly. We would still like the court to clarify this issue."
If this issue does end up back in circuit court, it would go initially before Fielding's as yet unnamed successor.
The sensitive personnel information exception was also clarified, in a portion of the ruling which also essentially upheld Fielding's.
"The board argued before the trial court that the employees whose disciplinary records were being sought were involved in the appeal process, and that the publication of information gleaned from incomplete disciplinary records would be misleading and might cause unwarranted public embarrassment for the employees," the decision said.
The ruling goes on to cite two attorney general's opinions that state disciplinary records are public, but additional factors, such as the employee's right to liberty and due process, must also be taken into account.
"Thus," the decision states, "the rule of reason balancing test weighs against the immediate disclosure of these records. However, once the affected employees have had a meaningful opportunity to clear their names, any danger that the employees will have been deprived a liberty interest by the disclosure of the records is removed.
"At that time, the disciplinary records are no longer 'sensitive personnel records' entitled to protection under Stone," the justices wrote. "Therefore, the trial court's ruling is affirmed insofar as it ordered that the pending disciplinary records of the water board employees should be kept confidential until the appeal process is concluded."
Borden pleaded guilty to the theft, but the other employees, while terminated, were never charged.
