Did council violate open meeting law?Published 10:30pm Wednesday, June 12, 2013
The Selma City Council possibly broke the law Tuesday night when they called an executive session to discuss Selma Chief of Police William T. Riley. The closed-door meeting, which lasted 45 minutes, was called to allegedly discuss Riley’s “good name and character” — but according to those in the meeting, discussion about Riley’s job performance took place.
The Alabama Open Meetings Act of 2005 outlines what topics are to be discussed in executive sessions, portions of the meeting conducted in private without the public being present, but job performance is not one of them.
Ward 3 Councilman Greg Bjelke made a motion for the executive session, which was unanimously approved by all council members present. Only Ward 2 Councilwoman Susan Keith did not participate in Tuesday’s meeting. Council President Corey Bowie told the public present they were going into executive session for 15 minutes, “to discuss the good name and character of Chief Riley.”
According to the Open Meetings Act it is legal to discuss the general reputation and character of employees, but it is illegal to discuss an employee’s job performance in a private meeting.
“If there is evidence they described after the meeting, that they discussed the job performance of managerial employees or the police chief, then that would appear to be an admission that there was a violation of the Open Meetings Act,” said Dennis Bailey, attorney for the Alabama Press Association. Bailey made his comments after reading a direct quote provided to him by the Times-Journal where Selma Mayor Evans seemed to confirm after Tuesday’s meeting that Riley’s job performance, as well as the job performance of other city employees, was discussed outside public purview. Evans told the Times-Journal the council discussed, “whether or not [employees] are lazy.” He also said “We discussed a lot of personalities. We discussed a lot of the department heads in terms of name and character that needed to be put on the table, and we talked about their job performances and their failure to do their jobs and maybe not almost their failure, but also anything they do right, too. So it got into a real discussion about their name … whether or not they are doing their job, or whether or not they are lazy — if that be the word, or whether we are getting our money’s worth.”
City Attorney Jimmy Nunn denied the council violated the Open Meetings Act and said only the good name and character of Riley was discussed, saying, “There wasn’t any violation that was done.”
Based on the Alabama Open Meetings Act, “job performance” is, “observed conduct or actions of a public employee or public official while on the job in furtherance of his or her assigned duties.”
It further says this includes, “Whether a person is meeting, exceeding, or failing to meet job requirements or whether formal employment actions should be taken by the governmental body.”
It states these items, if it pertains to an elected or appointed public official, an appointed member of a state or local board or commission, a public employee who files an ethical disclosure form or those who make more than $50,000 a year, are to be discussed in public and not in executive sessions.
“The remedy for violations of the Open Meetings Act involves filing civil action in the circuit court of Dallas County,” Bailey said. “Within a short period of time, the court, once they receive that complaint, will hold a preliminary hearing and evaluate the basic claim.”
He said following their evaluation, the court could possibly remedy the violation by voiding any action taken during the executive session if it was determined to be illegal, or impose civil penalties on the persons who participated in the executive session.
These civil penalties are not to be more than $1,000 per party involved or half of the defendants’ monthly salary for service on the government body — whichever is less.
Another commonality, Bailey said, in Open Meetings Act violation cases is that, usually, the winning plaintiffs are awarded attorney fees.
Bailey said “good name and character” is no longer an exception, but an old term that is applied only under the old statute that allowed general reputation and character to be discussed in private.
“It would be very, very unusual for a public body to spend much time discussing the ‘general reputation and character’ of their police chief, because that term relates to crimes, and other mental defects,” Bailey said. “Were they stealing money from the city? Have they committed perjury? Are they assaulting people at work? Are they having relationships with people at work that they shouldn’t have? That is what general reputation and character is defined to be in the new statute.”
Bailey said if the council discussed job performance of the police chief it would be in the party’s best interest to admit they violated the Open Meetings Act and agree they will not do it in the future.
“They should reschedule a meeting to hold these discussions in public and try to avoid the need for anyone to file suit,” Bailey said.