Closed sessions are OK, says Gulf Shores’ school board attorney
By Jane Nicholes
Much of the organizational work for the new Gulf Shores City School District has taken place behind closed doors.
The Gulf Shores City Schools Board of Education has met twice in official executive session since its members were appointed Nov. 27, according to the board’s attorney, Bob Campbell, once to discuss legal strategy and the second to discuss the appointment of an education consultant to the team that will negotiate its split from the Baldwin County Public Schools system.
Campbell defends the closed sessions as necessary and legal under Alabama’s Open Meetings Act. Dennis Bailey, longtime attorney for the Alabama Press Association and an advocate of open government, questions why the public has been barred.
Campbell was the attorney for the Mobile County public school system for 27 years. He later represented the cities of Saraland, Satsuma and Chickasaw as they negotiated splits from the Mobile County system. In 2006, he was hired to represent Gulf Shores and Orange Beach in a joint split from Baldwin County, but the effort died when voters turned down a property tax increase to fund a new system.
Going alone now, the Gulf Shores City Council has hired Campbell’s law firm, Campbell, Duke and Campbell, and Jean McCutcheon, former chief financial officer for the Satsuma and Baldwin County systems. The Gulf Shores board also needs an education consultant before it can proceed with negotiating the terms of the separation, which Campbell describes as “like a divorce.”
Under the open meetings law, public bodies may meet in executive session for limited reasons that must be stated in public. The law applies to newly appointed public bodies even before they meet. Bailey said that provision was strengthened in a 2015 revision of the law to prevent new members from meeting without the public’s knowledge in advance of taking office.
Campbell said that in the case of school boards, an attorney must ask for the executive session and be present during it. The five-member, unpaid board met on Dec. 4 and again on Dec. 14, he said. Campbell said the regular meeting scheduled for Jan. 11 was expected to be canceled because of a memorial service being held for Ed Rodriguez, the executive director of the Coastal Alabama Chamber of Commerce who died Jan. 7.
The first closed session at the first meeting, said Campbell, “was a discussion of the separation process, which you have to discuss. What’s our strategy? What’s our legal strategy in a case? We’re not going to discuss that in public.”
Campbell insists that because litigation is possible as the two school systems negotiate their separation, discussions must be held in executive session.
“We’ve notified them of a split. We don’t know if they’re going to fight us. We don’t know if they’re going to cooperate,” he said.
Baldwin County Superintendent Eddie Tyler has said his system will cooperate in the separation.
Bailey said the litigation exception is for the purpose of getting advice from an attorney on a case or a threat, not the chance that a board might be sued. And the law requires that no decisions be made or votes taken in executive session; any action must be taken in open session.
“Anything you do as a public entity can lead to litigation, just about,” Bailey said. “Public entities are constantly being sued. School boards usually have suits pending against them. The language is not that broad.”
As for interviews and personnel matters, such as a recommendation to the City Council about who should be hired as education consultant, a “good name” exemption or the fact that a person hired might end up involved in litigation don’t apply in this case, in Bailey’s opinion.
“How did the interviews of these individuals relate to pending litigation?” he asked. There is no pending litigation against [the new board]. Have they gotten a threat to be sued? Are they being sued because they’re being formed?”
Discussions that might affect a person’s good name and reputation should be limited, according to law, to matters “directly involving good or bad ethical conduct, moral turpitude or suspected criminal activity, not including job performance,” Bailey said. Questions about other subjects such as qualifications, past jobs and how a candidate would handle a particular issue should be asked in front of the public, he said.
Again, Campbell disagreed, saying consultants are interviewed “all the time” in executive sessions.
“If I have some personal questions I want to ask you, I can’t ask you that in public. That’s why you go into executive session.” Campbell said. “I can’t negotiate with you in public, because if we have four other people who want [the job], that ruins the negotiation process. That’s why there are exceptions to the rules of the Open Meetings Act.”
The application process for top school positions such as superintendent and for consultants must be confidential, Campbell said. In the case of a consultant, the board needs to know how a consultant will deal with litigation, he said.
“Most of the people won’t apply for the position unless they think it’s a confidential process, because they don’t want to jeopardize the position they’re in.”
Campbell also noted that for now, the new board has no money to spend, so hiring decisions and other matters involving public funds are being voted on by the City Council. The new board is no more than a group of appointees, he said.
“We don’t have a school board,” Campbell said. “We have five members that were appointed to form a board. We don’t have a school system. We don’t have any employees. We don’t have children.”
Nonetheless, the Gulf Shores City Schools Board of Education has scheduled its regular meetings for the second Thursday of each month at 5 p.m. in the City Council chambers. Public notices are also posted in various locations around the city.
Agendas, minutes and other information can be found at www.gulfshoresal.gov/1022/City-Schools. There is also a link under “Notify me,” where citizens may sign up for email notifications about meetings.