Slagle v. Ross

• Decision Date: 15 June 2012
• Docket Number: 1090638
• Parties: Clay C. Slagle v. Beverly Ross et al.
• Court: Supreme Court of Alabama

Clay C. Slagle

v.Beverly Ross et al.

1090638

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2011-2012

Dated: June 15, 2012

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Montgomery Circuit Court

(CV-2009-1846)

PER CURIAM.

Clay C. Slagle appeals from the dismissal by the Montgomery Circuit Court of his action against the seven members of the Montgomery County Board of Education ("the Board") and the superintendent of the Montgomery County School System alleging that they violated the Alabama Open Meetings Act, § 36-25A-1 et seq., Ala. Code 1975 (hereinafter referred to as "the Act"). We affirm.

I. Facts and Procedural History

At the time of this action, the Board consisted of seven members: Board President Beverly Ross,¹ Melissa Snowden, Heather Sellers, Charlotte Meadows, Eleanor Dawkins, Mary Briers, and Robert Porterfield.

In April 2009, the then superintendent of the Montgomery County School System resigned and Slagle was appointed the interim superintendent while the Board conducted a search for a new superintendent. On June 15, 2009, four members of the Board -- Ross, Dawkins, Briers, and Porterfield -- were individually invited to attend an annual gathering of local, elected officials. Ross testified that each of these members had attended this event in previous years but that all four never had attended at the same time. On this occasion, however, it is undisputed that all four members attended the event. It is also undisputed that as soon as those members of the Board realized that four of them were present, Dawkinsleft the event so that it could not be said that a quorum of the Board was gathered at the event. At some point, Ross left the event and Dawkins returned to the event so that she could participate in part of it.

There is conflicting evidence as to the nature of the discussion that occurred at the June 15, 2009, event between the Board members who attended it. Slagle testified that, at a meeting of the Board held on July 1, 2009, one Board member made a comment about a previously held "secret meeting" of Board members, apparently referring to the June 15, 2009, event at which Ross, Dawkins, Briers, and Porterfield were present. Slagle also testified that he had been told by an elected official that at the June 15, 2009, event these four Board members discussed the applications for the superintendent position and the qualifications of Slagle and other applicants. Board member Meadows testified that Board member Briers had made comments to her indicating that matters relating to the selection of a new superintendent were discussed at the June 15, 2009, event.

None of the Board members present at the June 15, 2009, event, however, confirmed that they deliberated about fillingthe superintendent position or other Board business at the event. Specifically, Ross testified in her affidavit that the members discussed "community" issues at the event with other elected officials. Briers admitted at trial that the Board members who participated in the June 15 event talked about "the system," but she denied that there was discussion of the selection of a superintendent for the school system. Another witness, Montgomery City Councilman Tracy Larkin, testified that "Montgomery public education was discussed at the meeting."

At the July 1, 2009, public meeting of the Board, the Board voted to hire Barbara Thompson as superintendent of the Montgomery County School System.²

On November 11, 2009, Ross sent a memo to the other members of the Board asking them to attend meetings on November 16, 2009, with Superintendent Thompson to discuss Thompson's goals and objectives for the school district. President Ross scheduled the following "groups" of Boardmembers to meet in succession with the superintendent on the following schedule:

10:00-10:45 a.m. - Ross, Snowden, and Dawkins.

11:00-11:45 a.m. - Ross, Briers, and Meadows.

12:00-12:45 p.m. - Ross, Sellers, and Porterfield.

It is undisputed that the Board members discussed the same matters in each meeting, that no more than three members of the Board were present in each meeting with Superintendent Thompson,³ and that no notice of these meetings was provided to the public. In a public meeting held the next day, November 17, 2009, the Board approved the superintendent's report.⁴

On December 4, 2009, Slagle filed this action against Board members Ross, Snowden, Sellers, Meadows, Dawkins, Briers, and Porterfield in their official capacities and against Thompson in her official capacity as superintendent, alleging that the Board members violated the Act on June 15, 2009, and that the Board members and Superintendent Thompsonviolated the Act on November 16, 2009. The defendants subsequently filed motions to dismiss Slagle's complaint.

The trial court held a preliminary hearing on Slagle's complaint, during which it accepted testimony from several witnesses. Following the hearing, on January 28, 2010, the trial court entered an order granting the defendants' motions to dismiss. The trial court concluded that, because a quorum was not physically present and discussing Board business at any given time on either June 15 or November 16, the Board did not hold a "meeting," as that term is defined in the Act, on either occasion. Based on this finding, the trial court dismissed Slagle's claims against the Board members and Superintendent Thompson. Slagle appeals the trial court's judgment of dismissal.

II. Procedure in the Trial Court Under the Open MeetingsAct and this Court's Standard of Review

Section 36-25A-9, Ala. Code 1975, of the Act explains the procedure to be followed in an action alleging a violation of the Act. Subsection (a) provides that "[e]nforcement of this chapter may be sought by civil action brought in the county where the governmental body's primary office is located by ... any Alabama citizen" and that "[a] preliminary hearing on thecomplaint filed shall be held no later than 10 business days after the date of the filing of the defendant or defendants' initial response to the complaint

Section 36-25A-9(b), Ala. Code 1975, sets out the standard of proof required for the plaintiff's complaint to survive the preliminary hearing. In pertinent part, § 36-25A-9(b) provides:

"(b) In the preliminary hearing on the complaint, the plaintiff shall establish by a preponderance of the evidence that a meeting of the governmental body occurred and that each defendant attended the meeting. Additionally, to establish a prima facie case the plaintiff must present substantial evidence of one or more of the following claims:

"(1) That the defendants disregarded the requirements for proper notice of the meeting pursuant to the applicable methods set forth in Section 36-25A-3.

"....

"(4) That, other than a claim under subdivisions (1) through (3), the defendants intentionally violated other provisions of this chapter."

Subsection (c) explains that "[i]f the court finds that the plaintiff has met its initial burden of proof as required in subsection (b) at the preliminary hearing, the court shallestablish a schedule for discovery and set the matter for a hearing on the merits." § 36-25A-9(c), Ala. Code 1975.

The trial court in this case concluded that Slagle did not satisfy his initial burden of proof prescribed by § 36-25A-9(b). Although this Court reviews a trial court's findings of fact based on evidence received ore tenus under a deferential standard, see Ex parte Pielach, 681 So. 2d 154, 154-55 (Ala. 1996), the present appeal turns upon the proper interpretation of the law and the proper application of that law to the facts, matters this Court addresses de novo. See Espinoza v. Rudolph, 46 So. 3d 403, 412 (Ala. 2010).

III. Analysis

A. Substantive Statutory Provisions

It is undisputed that the Board qualifies as a "governmental body" that is subject to the provisions of the Act. It also is undisputed that, if a "meeting," either of the Board or of a committee of the Board, as that term is defined by the Act, occurred on either June 15, 2009, or November 16, 2009, the requirement for public notice of that meeting was not met.

Section 36-25A-2, Ala. Code 1975, defines pertinent terms used in the Act. It defines "meeting" as follows:

"(6) Meeting. a. Subject to the limitations herein, the term meeting shall only apply to the following:

"1. The prearranged gathering of a quorum of a governmental body or a quorum of a committee or subcommittee of a governmental body at a time and place which is set by law or operation of law.

"2. The prearranged gathering of a quorum of a governmental body or a quorum of a committee or subcommittee of a governmental body during which the body, committee, or subcommittee of the governmental body is authorized, either by law or otherwise, to exercise the powers which it possesses or approve the expenditure of public funds.

"3. The gathering, whether or not it was prearranged, of a quorum of a governmental body or a quorum of a committee or a subcommittee of a governmental body during which the members of the governmental body deliberate specific matters that, at the time of the exchange, the participating members expect to come before the body, committee, or subcommittee at a later date.

"b. The term 'meeting' shall not include:

"1. Occasions when a quorum of a governmental body, committee, or subcommittee attends social gatherings, conventions, conferences, training programs, press conferences, media events,or otherwise gathers so long as the governmental body does not deliberate specific matters that, at the time of the exchange, the participating members expect to come before the governmental body at a later date.

"2

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