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By Mark S. Boardman and Wilson P. Boardman

“It is the policy of this state that the deliberative process of governmental bodies shall be open to the public during meetings . . . except for executive sessions . . . or as otherwise expressly provided by federal or state statutes, all meetings of a governmental body shall be open to the public and no meeting of the governmental body shall be held without providing notice.”[1]

So begins the Alabama Open Meetings Act (“the OMA”). Applying to virtually all governmental bodies in Alabama (except the courts), the OMA requires that the public be given notice of government meetings and that the meetings have minutes. A government body can discuss confidential matters in executive session only under limited circumstances. But, not every gathering of elected or appointed officials is a meeting. And, since the purpose of the OMA is to allow the public to see the wheels of government turn, the OMA provides that the public has the right to attend meetings, not the right to speak at them.

Application of the Open Meetings Act

The OMA applies to meetings of all boards, bodies, and commissions of the executive and legislative branches, of all cities and counties, and of multi-member governing bodies of departments, agencies, and institutions. Generally, if a majority of members of any governmental board, body, commission, department, agency or institution are either appointed or elected, the OMA probably applies to its meetings.[2] A government entity’s committees and subcommittees also must comply with the OMA.[3]

So, what is not regulated by the OMA? Excluded are the Alabama Senate and Alabama House of Representatives,[4] legislative party caucuses or coalitions,[5] and voluntary membership associations, assuming they have not been delegated any legislative or executive functions by the legislature or the governor. Thus, the Alabama League of Municipalities, the Alabama Education Association, the Alabama County Commission Association, and the Alabama State Employees Association are not governed by the OMA.[6] (As noted above, the appellate or trial courts also are not governed by the OMA, unless the Alabama Supreme Court or the state Constitution requires it.[7])

What Is a Meeting?

A meeting is a prearranged gathering of a quorum[8] of the government body, committee, or subcommittee. However, even if the gathering is not prearranged, when a quorum of members discusses specific matters that the members expect to come before them, the gathering is a meeting.[9]

The OMA’s definition of meeting tends to eliminate council, commission or board committees and subcommittees. A committee or subcommittee of three members means that if two members meet, the members must send out notice of the meeting and must keep minutes. Surprisingly, lawyers throughout Alabama will find committees and subcommittees meetings in violation of the OMA. To avoid this problem, some governments instead use task forces, where the majority of the people on the task force are citizen volunteers, not elected or appointed officials. For example, if the local high school is looking for a new principal, a task force of board of education mentors, teachers, PTO officers, parents, and/or alumni can meet and even interview candidates for principal, without notice or minutes. The OMA does not apply to that task force.

When Is a Gathering Not a Meeting?

A social gathering, a convention or conference, a media event (including press conferences), and training programs are not meetings, as long as the participating members do not deliberate about things that they expect to come before them. Further, when government bodies meet with higher ranking government officials, the gathering is probably not a meeting. Thus, when city officials meet with ALDOT about a road to report or obtain information or to seek support, that gathering is not a meeting. Likewise, when municipal or state officials meet with federal officials, such as when discussing community development block grants, those gatherings are not meetings.[10]

One key to determining if the gathering is a meeting is whether the officials deliberate or exchange information and ideas with each other to arrive at or influence any member’s decision on an issue. The mere presence of government officials attending the gathering is not enough to make it a meeting under the Act.[11] For example, in September, the Alabama Supreme Court held that a Public Service Commission public hearing before an administrative law judge was not a meeting under the OMA.[12]

The Act prohibits circumvention. Email cannot be used instead of a meeting. For instance, if the mayor sends an email out to all city councilors announcing the agenda for the upcoming meeting, and city councilors “reply all” to discuss a matter on the agenda, this “reply all” may violate the OMA.[13] Further, members of a government body cannot meet in a series of gatherings of two or more members, but less than a quorum, so that ultimately everybody, or at least a majority of the members, discuss an issue. The OMA expressly prohibits these gatherings, which it calls “serial meetings.”[14]

Meeting Notice Requirements, Time, Place, Location, and Agenda[15]

The Act specifies the notice requirements, the majority of which are summarized here. Certain circumstances allow for 24 hours of notice or as little as one hour of notice as discussed below this table.

Organization	Deadline	Location	Authorized but not Required
State Agency with Statewide Jurisdiction	7 days prior to meeting	Submit notice of meeting to Secretary of State, which posts on Internet and sends e-mail notifications to those registered with SOS to receive notification of meetings.	May give, but not required to give, notice of quasi-judicial or contested case hearings which could properly be conducted as an executive session.
State Agency with Less Than Statewide Jurisdiction	7 days prior to meeting	May submit notice of meeting to Secretary of State. If practicable, in addition to the posting requirements, shall provide direct notification of a meeting … to any member of the public or news media covering that governmental body who has registered to receive meeting notifications	May give, but not required to give, notice of quasi-judicial or contested case hearings which could properly be conducted as an executive session.
Municipal Government	7 days prior to meeting	Bulletin board at a convenient to the public in city hall	May give, but not required to give, notice of quasi-judicial or contested case hearings which could properly be conducted as an executive session.
School Board	7 days prior to meeting	Bulletin Board at a place convenient to the public in the central administrative office of the board	May give, but not required to give, notice of quasi-judicial or contested case hearings which could properly be conducted as an executive session.
Any Other Governmental Body	7 days prior to meeting	Reasonable location or use reasonable method of notice that is convenient to the public.	May give, but not required to give, notice of quasi-judicial or contested case hearings which could properly be conducted as an executive session.

Posted Notice[16] Preliminary Agenda Available: Shall be posted in the same manner as the notice. Preliminary Agenda Not Available:  Posted notice shall include a general description of the nature and purpose of the meeting.

In such situations, notice shall be given as soon as practical, but in no case less than one hour before the meeting is to begin.[1]

The Requirement of a Quorum

A government body cannot meet without a quorum, defined as “a majority of the voting members of the governmental body.”[2] Until the OMA was amended in 2015, a quorum required that the members be physically present. Now, if a government body is comprised of members from two or more counties, a member can participate in the meeting by telephone, video, or similar communications conference equipment which allows all participants in the meeting to hear each other at the same time.[3] Under those circumstances, the meeting must have a physical location allowing members of the public to be present. All persons participating in the meeting must be able to hear, but not necessarily see, each other at the same time. Votes must be taken by roll call. The meeting, however, cannot involve the government (a) acting in a quasi-judicial capacity, (b) conducting a hearing that could result in loss of licensure or professional censure, or (c) meeting to promulgate rules pursuant to the statutory authority of the government body.[4] Further, the Board of Pardons and Paroles, the Public Service Commission, a standing committee of the legislature while the legislature is in session, a school board acting under the Students First Act of 2011, and the Alabama Ethics Commission cannot use this provision.[5]

When a government body does not have a quorum, the members present can still discuss government business, assuming the government body has adopted rules of order which allow it. For example, Roberts Rules of Order, the most commonly adopted rules for meetings of organizations, provide that the body may move into a committee of the whole or its alternatives, a quasi-committee of the whole and committee for informal consideration. Those in attendance at the meeting then act as a committee, like any other committee of the governing body. As with any committee, the committee must have a chairman, there must be proper notice of the meeting (In this situation there was notice of the meeting, but the quorum did not appear), and the committee must keep minutes. Motions from this meeting are then reported to the whole body. (Roberts Rules of Order uses the old English phrase that the committee “rises and reports.”)[6]

Executive Sessions

The OMA specifically states that executive sessions are not required but may be held if the government body decides to do so.[7]

The procedure for going into executive session is:[8]

1. Unless this is a quasi-judicial meeting (such as conducting an employee hearing), the meeting must be called with proper notice; a quorum must be present.
2. A member must make a motion, which must be seconded, to call for the executive session, specifically setting out the purpose of the executive session. (Under some circumstances, discussed later, someone must certify the executive session, which would be done at this point.)
3. The government body must vote on the motion, and “[t]he vote of each member shall be recorded in the minutes.”[9] The State Records Commission/Local Government Records Commission[10] states that the vote of each individual member must be recorded in the minutes.[11] As a practical matter, if the vote is unanimous, and the minutes simply state that the vote is unanimous, this requirement is met.
4. Prior to convening the executive session, the presiding officer must state whether the body will reconvene after the executive session and, if so, the approximate time the body expects to reconvene.
5. The State Records Commission/Local Government Records Commission in their procedural leaflet say that the minutes of the meeting must record the time the executive session convenes and the open meeting reconvenes.[12] The statute, however, does not specifically require this.

No votes may be taken in an executive session.[13]

Under the 2015 amendment to the Open Meetings Act, someone who attends via electronic communications may not participate in an executive session.[14]

Reasons for an Executive Session

Under the OMA, sunshine reigns. Executive sessions are to be the exception rather than the rule. Alabama law allows executive sessions only for nine reasons:

1. To discuss the general reputation, character, physical condition, professional competence, or mental health of individuals. Also, the governing body may conduct an executive session to discuss job performance of employees who are not elected or appointed public officials, appointed members of a board or commission, or employees who must file a Statement of Economic Interests.[15] Further, the executive session may not be convened to discuss the salary, compensation, or job benefits of specific public officials or specific public employees.[16] However, those in the executive session can discuss the professional competence of someone who possesses a certification or license from the state but only for those professional roles that require at least a college-level degree.[17]
2. To hear employee or student grievances, discipline, or dismissal, or the regulation of an individual or other legal entity regulated by the governing body, but only when expressly allowed by federal or state law.[18]
3. To discuss with legal counsel the legal ramifications of and legal options for pending litigation, controversies not yet litigated, but imminently likely to be litigated, or imminently likely to be litigated if the government body pursues a proposed course of action. A government body may also go into an executive session to meet with the mediator or arbitrator. Prior to this executive session, an Alabama lawyer must state the grounds for the executive session, reciting the above.[19]
4. To discuss security plans, procedures, assessments, measures, or systems or the safety or security of persons, structures, facilities, or other infrastructure, but only if the public disclosure of this conversation could be detrimental to the public’s safety or welfare.[20]
5. To discuss information that would disclose the identity of an undercover law enforcement agent or informer or to discuss the criminal investigation of someone who is not a public official where allegations of criminal misconduct have been made, or to discuss whether to file a criminal complaint. Like the attorney litigation certification above, this also requires specific certification from a district attorney, the attorney general, or an assistant to either.[21]
6. To discuss the purchase, sale, exchange, lease, or market value for the property, but this does not apply if a condemnation action is pending.[22]
7. To discuss matters of economic development, trade, or commerce, but only if the government body is in competition with another entity or under the Alabama Trade Secrets Act. This executive session, too, requires a specific certification of someone knowledgeable in the recruitment effort, the retention effort, or the Alabama Trade Secrets Act that revealing publically these negotiations would have “a detrimental effect upon the competitive position.”[23]
8. To discuss strategy and preparation for negotiations between the government body and a group of public employees. Again, the law requires that a person representing the interest of the government body specifically represent that public discussions would “have a detrimental effect upon the negotiating position of the government body if disclosed.”[24]
9. To deliberate or to discuss evidence or testimony presented in a public or contested hearing, provided the government body is acting quasi-judicially.[25]

Minutes

The OMA requires government bodies to maintain “accurate records of its meetings, excluding executive sessions, setting forth the date, time, place, members present or absent, and the action taken at each meeting.”[26] The State Records Commission/Local Government Records Commission has prepared a procedural leaflet detailing how minutes should be kept. Although the statute does not specifically require it, the Records Commissions state that the time of the beginning of the meeting and the conclusion of the meeting should be kept in the minutes. The Records Commissions also suggest that devotions should be included in the minutes.[27] In certain public meetings, when done properly, prayers can be constitutional. But when done improperly, prayers may violate the First Amendment.[28]

All votes must be taken in open session. (In executive session, the body may not vote or take any action.[29]) In particular, the minutes must record all votes involving the spending of public money, the levying taxes or fees, the forgiving of debts, or the granting tax abatements.[30]

Anyone May Record the Meeting

Except when the government body is in executive session, any attendee may record the meeting as long as doing so does not disrupt the conduct of the meeting.[31]

Public Comment

The Open Meetings Act grants citizens the right to be present in a meeting–but not to speak.[32] The purpose for a public meeting is to allow the public to observe the affairs of government, which may not include obtaining citizen input. There are other ways citizens may share their opinions, such as speaking to government officials outside of the meeting, sending letters, or writing emails. Public comment at meetings can unnecessarily delay the work of underpaid or volunteer members of the government body.

The government body can determine whether public comments will be allowed, including setting limitations on those comments and requiring order and decorum be maintained.^[33] Public hearings obviously involve public comment. But regular meetings might not. Boards of education, for example, are required to allow public comment at budget hearings.[34]

Conclusion

The OMA is as dry as toast, but that description also applies to the Rules of Civil Procedure, the Rules of Criminal Procedure, and the rules of the Parker Brothers game Monopoly. But if a government body violates the OMA, a court may invalidate actions taken in the meeting.[35] Further, a court may impose a civil penalty payable to whoever filed suit to enforce the OMA. The penalty shall not exceed $1,000 or half of a board member’s monthly salary, whichever is less, with a minimum penalty of $1.[36] Thus, the fines are not big, but for public officials, they are significant because the government entity cannot pay or reimburse a member of the governmental body for payment of these penalties. As a result, government officials who violate the Open Meetings Act also suffer the potential embarrassment of public rebuke.

Endnotes

[1] § 36-25A-3(b).

[2] § 36-25A-2(12).

[3] § 36-25A-5.1(a).

[4] § 36-25A-7(b).

[5] Id.

[6] Roberts Rules of Order, Newly Revised, Tenth Edition, Section 52.

[7] Ala. Code § 36-25A-7(b).

[8] Id.

[9] § 36-25A-7(b)(3).

[10] “Procedural Leaflet: Guidelines for Taking and Preserving Formal Meeting Minutes,” State Records Commission/Local Government Records Commission, Revised 2009, page 4.

[11] See also Lori Lein, Alabama League of Municipalities General Counsel, “The Legal Viewpoint: Executive Sessions – Getting Them Right,” Alabama Municipal Journal, May-June 2018, page 13.

[12] “Procedural Leaflet: Guidelines for Taking and Preserving Formal Meeting Minutes,” State Records Commission/Local Government Records Commission, Revised 2009, page 4-5.

[13] Ala. Code § 36-25A-5(b).

[14] § 36-25A-5.1(e). Nevertheless, under Governor Ivey’s emergency Proclamation of March 18, 2020, those “Zoom meetings are not precluded from an executive session where participants ‘remote’ into the session.

[15] This is a requirement of the Alabama Ethics Act, § 36-25-14.

[16] § 36-25A-7(a)(1).

[17] Id. and Ala. Code § 36-25A-2(8).

[18] § 36-25A-7(a)(2).

[19] § 36-25A-7(a)(3).

[20] § 36-25A-7(a)(4).

[21] § 36-25A-7(a)(5).

[22] § 36-25A-7(a)(6).

[23] § 36-25A-7(a)(7)

[24] § 36-25A-7(a)(8).

[25] § 36-25A-7(a)(9).

[26] § 36-25A-4.

[27] “Procedural Leaflet: Guidelines for Taking and Preserving Formal Meeting Minutes,” State Records Commission/Local Government Records Commission, Revised 2009. In my practice, I do not recommend following this suggestion.

[28] Town of Greece v. Galloway, 572 U.S. 565 (2014).

[29] Ala. Code § 36-25A-5(b).

[30] Id.

[31] Id. at § 36-25A-6.

[32] Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984); Ken Smith, The Legal Viewpoint; The Council Meeting; “Dealing with Disruptions,” Alabama Municipal Journal, November 2010.

[33] Alabama Attorney General Opinion 98-134.

[34] Ala. Code § 16-13-140(c)

[35] Id. at § 36-25A-9(f).

[36] Id. at § 36-25A-9(g).