FROM BEN IRWIN, CHERRY & IRWIN
Sunshine with Shadows: Why Alabama’s Transparency Laws Need the Public as Much as the Public Needs Them
Editor’s note: This essay discusses general principles of Alabama’s open-government laws. It does not address evidence, witnesses, or strategy in any pending matter and is not intended to influence any court. In the current matter referenced by readers, the court has treated the issues seriously, ensured both sides were heard, and has not ruled.
By Benjamin Irwin
Alabama promises a simple thing: the people’s business should be done where the people can see it. That promise only holds when citizens show up, read the notices, and ask hard questions – citizens and local media like Rickey Stokes, who aren’t trying to relitigate outcomes, but to protect the process that produces them. When the process slips and when discussions migrate off the agenda or outside public view, trust slips with it.
What the law actually promises…
Open-government rules apply across boards, commissions, councils, and other public bodies statewide. Meetings must be properly noticed. If there’s an agenda, it should be posted. Votes must occur in public. Executive sessions are narrow exceptions with specific procedures, and even then, any final action belongs in the open.
That’s the ideal. Reality can be messier, especially when officials never gather as a full quorum but still line up decisions through a series of smaller, private talks.
The “walking” (serial) quorum, in plain English…
A serial or walking quorum happens when officials hold a series of non-noticed, below-quorum conversations about a specific public matter that’s expected to come before the body, with at least one participant overlapping from one conversation to the next. Taken together, the conversations involve a quorum, appear designed to circumvent the open-meeting rules, and occur close in time to a public vote.
Hypothetical (not about any current case):
• Monday: Two members meet privately about an issue.
• Tuesday: One of them meets with a third member about the same issue.
• Wednesday: That third member meets with a fourth member about the same issue.
Each meeting is under a quorum, but there’s an overlap chain and a collective quorum across the series, with no public notice and a vote expected soon. That pattern can qualify as a prohibited serial meeting. However, proving a serial quorum occurred, is not simple.
What conscientious officials should do in the moment
• Don’t join the chain. A simple “This belongs in a properly noticed public meeting” followed by disengaging can prevent the pattern from forming.
• Insist on daylight. Ask the presiding officer or clerk to put the issue on a posted agenda and handle it in open session. Votes happen in public.
• Use Robert’s Rules to build a clean record:
• “Point of order: this should be handled in a publicly noticed meeting.”
• If overruled: “I appeal the decision of the chair.”
• If the outcome is unclear: call “Division” or request a roll-call so the vote is recorded.
• Keep any closed portion within the law. Follow the statute’s steps to go into executive session, and return to open session for any vote.
These aren’t theatrics; they’re the tools that keep government answerable to the people who pay for it.
The money math: incentives that shape behavior…
Here’s the uncomfortable part. Alabama’s current framework can make enforcement hard on citizens and relatively manageable for officials.
• Per-meeting penalties are modest. If a member is found to have violated the open-meeting rules, the court imposes a civil penalty per meeting, capped at $1,000 or half the member’s monthly stipend—whichever is less. (If a stipend were $277/month, the maximum would be $138.50 per meeting.)
• Defense can be publicly funded. Public bodies may authorize payment of legal expenses for current or former members named in open-meeting suits (personal fines are the member’s own).
• Plaintiffs carry real risk in emergency actions. To seek a temporary restraining order or preliminary injunction, citizens may have to post a bond; if that relief is later deemed wrongful, courts can award costs and, in some cases, attorney’s fees against the bond. That’s a tall order for a resident or small newsroom.
Translation: If someone is determined to push the limits, today’s penalties alone may not deter them. Culture, vigilance, and clear procedures matter just as much as fines.
How Alabama stacks up – briefly…
States vary widely. Some jurisdictions give courts stronger tools: higher fines, routine fee-shifting to prevailing requesters, explicit voidability of actions taken in unlawful meetings, even criminal penalties for willful violations. Alabama has made progress, for example, adding response timelines to its public-records law – but generally relies on citizens to sue without the assurance that legal fees will be covered if they win.
That doesn’t make Alabama’s laws meaningless. It means they rely on public habit and public pressure.
The court’s role…
Judges are the referees of fairness. In the matter readers may have in mind, the court has taken the issues seriously, given both sides a full chance to be heard, and has not ruled. That’s how the system is supposed to work: careful, orderly, respectful of everyone’s rights.
Why I asked to narrow the parties…
Based on the public pleadings, the allegations focused on other members. I asked the court, under Rule 21 (misjoinder), to narrow the parties for the preliminary-injunction phase so the hearing focuses on the entity’s process, which is what any interim order would actually govern. Rule 21 allows courts to drop or sever parties to avoid duplication, confusion, and public misimpressions at early stages. An injunction directed to the public body still binds its officers who have notice.
Why trust is the heart of all this…
These are called sunshine laws for a reason. Sunshine is the best disinfectant. Trust in elected officials doesn’t come from perfect outcomes; it comes from open, honest, transparent processes the public can watch and verify. When the rules are followed and when they’re enforced, the community can disagree about policy without doubting whether the deck was stacked.
Five takeaways for readers and officials…
1. Don’t build a chain. Decline overlapping, private discussions on matters headed for a vote.
2. Keep it posted. If there’s an agenda, post it; if there isn’t, post the notice. Let people show up.
3. Vote in public. Always.
4. Use the tools. “Point of order.” “Appeal.” “Division/Roll-call.” They exist to keep the process clean.
5. Consider reform. If Alabama wants stronger deterrence, lawmakers can raise penalties, clarify remedies, and add targeted fee-shifting so ordinary Alabamians aren’t priced out of transparency.
Bottom line: Watchdogs Matter, not because they want to overturn this or that outcome, but because they help keep the promise we made to ourselves: the people’s business, done in the people’s sight.
Quick note: Why a knowledgeable attorney helps in sunshine-law matters
• Deadlines & pleadings: These cases have short clocks and technical filing rules (e.g., verification, who must be named). Missing them can sink a strong claim or defense.
• Injunctions & bonds: Emergency relief can require a bond; if relief is later deemed wrongful, courts may award costs (and sometimes fees) against it. Good counsel right-sizes both the ask and the risk.
• Confidentiality lanes: Executive-session, in-camera, and privilege rules are strict. A lawyer helps protect sensitive information without waiving rights.
• Clean record, clean remedy: Knowing when to use Point of Order, Appeal, or Roll-call, and how to request narrow, process-based orders, preserves the record and speeds practical fixes (proper notice, a clean re-vote, targeted redactions).
• Practical resolution: Often the fastest path is procedural—not punitive—done once and done right.
—-This is general information, not legal advice. If you’re involved in a live dispute, talk with a licensed attorney before sharing specifics.
