Kay Ivey "Hunkered Down" with the PACT Board

by: mooncat

Sun Mar 22, 2009 at 11:37:55 AM CDT

Kay Ivey was in Huntsville yesterday, and the Huntsville Times reports she had this to say about Alabama's troubled Prepaid Affordable College Tuition (PACT) Program:

Ivey told the breakfast audience at Trinity United Methodist Church that she has "been hunkered down" with the board and financial risk experts to find solutions to shore up the program for the short term.
"That is my mission," said Ivey, who is a board member and whose office oversees the Prepaid Affordable College Tuition Plan (PACT).
...
"We've got to find a way to continue to serve the children," Ivey said in a 20-minute speech. "Tending to business requires creative solutions."

Creative solutions are good, but I'm not liking the "hunkered down" with the Board part. The innovative solutions on the table ought to be discussed at the public Board meeting on Tuesday*, not pre-decided and just put up for a formal vote at that meeting.

*PACT Special Called Board Meeting

Date:       Tuesday, March 24, 2009
Time:       10:00 a.m.
Location: State Capitol Auditorium
               Montgomery

mooncat :: Kay Ivey "Hunkered Down" with the PACT Board

Alabama has a Sunshine Law, the Alabama Open Meetings Act (Act No. 2005-40), and below are some excerpts from A Manual for Public Officials (pdf), compliments of the Alabama Press Association and Attorney General Troy King. Emphasis mine.

Section 1 of Act No. 2005-40 sets forth the general rule of law for Open Meetings:

The Deliberative Process of governmental bodies shall be open to the public during meetings [as defined by this Act]. Except for executive sessions . . . or as otherwise expressly provided by other federal or state statutes, all meetings of a governmental body shall be open to the public and no meetings of a governmental body may be held without providing notice [as defined by this Act].

No executive sessions are required by this Act to be held under any circumstances. Electronic communications shall not be utilized to circumvent any provisions of this Act.

Here are the important, and simplified, aspects of the law:
1. All meetings in which government bodies meet to deliberate must be open to the public.
2. Under the OMA, the only exception to an Open Meeting is an “Executive Session.”
a. As shown later, Executive Sessions must be noted in the public meeting and can only be entered into for a limited number of statutorily-defined reasons.
b. Some pre-existing laws require otherwise “Open Meetings” to be discussed in private (for example, laws that forbid the disclosure of statutorily privileged
information).
c. Executive Sessions are never required by the OMA, although they should – if not must – be called for in the situations discussed above in subsection (b).
3. No meeting – even an emergency meeting – can properly be held under the OMA without the proper notice.
4. Electronic communications, such as teleconferencing, cannot be used to circumvent the OMA.

That seems pretty clear. Now, who does the Open Meetings Act apply to?

I. Governmental Body: Who is subject to the OMA?
A. The following are legally bound to follow the OMA:
• All boards, bodies, and commissions of the executive and legislative departments of the state (and its political subdivisions) or municipalities, which expend or appropriate public funds; and,
• All multi-member governing bodies of departments, agencies, institutions, and instrumentalities of the executive and legislative departments of the state (and its political subdivisions) or municipalities.
1. This includes (but is not limited to) all corporations and other instrumentalities whose governing boards are comprised of a majority of members who are appointed or elected by the state, its political sub-divisions, counties, or municipalities.
• All quasi-judicial bodies of the executive and legislative departments of the state
• Special Note: “All standing, special, or advisory committees or subcommittees” of these bodies are also bound to OMA regulations.
B. The following are not legally bound by the OMA:
• Legislative party caucuses or coalitions;
• Alabama appellate or trial courts; and,
• Voluntary membership associations comprised of public employees, counties, municipalities, or their instrumentalities which have not been delegated any legislative or executive functions by the Legislature or Governor

I think the PACT Board falls under the OMA. If so, the next question is, what's a meeting?

II. Meeting: What must be open to the public?
A. Meetings only include the following under §2(6)a of the OMA:
1. 2(6)a1: Prearranged gatherings of a quorum of the body, committee, or sub-committees described above which occurs at a time and place which is “set by law or operation of law”;
2. 2(6)a2: Prearranged gatherings of a quorum of the body, committee, or sub-committees described above to “exercise the powers it possesses or approve the expenditure of public funds”; and,
3. 2(6)a3: Gatherings of a quorum of the body, committee, or sub-committees
described above – whether or not prearranged – to “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. Meetings do not include the following:
1. Occasions when a quorum of the body attends a
   a. Social Gathering;
   b. Convention, Conference, or training program; or,
   c. Press conference or media event.
2. Occasions when a quorum gathers with state or federal officials to report,
obtain information, or seek support for issues of importance to the body; or,
3. Any other gathering in which the body discusses specific matters that the body
does not expect to come before the body at a later date.

Resolution of the current PACT financial problem is definitely a matter expected to come before the Board at a later date -- Tuesday.

III. Deliberation: What must be discussed openly during the
meeting?

• Unless it can be taken into executive session, the following must be discussed openly at a meeting of a quorum of the body, committee, or sub-committee:

o Any “exchange of information or ideas among [the] quorum” that is “intended to arrive at or influence a decision” as to how the body members should vote on a specific matter
The matter discussed by the quorum can be an issue before the body at the current meeting or “at a later time”; or,
Any discussion during a meeting about any issue that members expect to be before the body at some point in time should be conducted openly unless the body can go into executive session.

The Treasurer seems to think the PACT Board is covered by the OMA, since this document, PACT Internal Procedures for Open Meetings Law, is available from her website. I note that it includes a lengthy set of hoops the public or press must go through in order to record a PACT Board meeting. Those who plan to attend on March 24 should make note of those hoops so as not to be ejected -- I'm not sure they have the authority to set all those conditions, but a victory in court 2 years from now won't get you back in the meeting.

The PACT Board needs to err on the side of openness in this discussion. Yes, Treasurer Ivey should certainly be meeting with financial experts to determine the extent of the problem and gather information to be presented to the Board. Ideally, other Board members would also be gathering specific information and developing proposals to lay on the table at Tuesday's meeting. What shouldn't happen is for the Board to kick those options around and make a decision while "hunkered down" out of public view, then come together in public just to ratify what has already been decided in private.

Tags: PACT, Sunshine Law, Kay Ivey, Jim Folsom, Bradley Byrne, (All Tags)

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Kay Ivey "Hunkered Down" with the PACT Board | 5 comments

Request to record meeting (4.00 / 1)

From the PACT Internal Procedures document:

PUBLIC RECORDING OF THE MEETING
1. All persons attending the Board Meeting may openly record the Meeting through a tape recorder or other “sonic” recording device, by a video recorder and by a photographic camera.) The recording of the Meeting cannot disrupt the conduct of the Meeting. Neither the public nor the media have the right to record Executive Sessions.
2. Requests to record must be delivered to the Treasurer in writing or by electronic mail 48 hours in advance. The requests are for informational and planning purposes and do not diminish the right of the public to record a Meeting.
3. Receipt of request confirmation will be pr ovided by mail, email or facsimile.
4. Each recording citizen must sign in with current address and telephone numbers at the time of entry to the Meeting.
5. Equipment must be in place thirty minutes in advance of the scheduled Meeting time. Equipment must be in a stable, secure and non- disruptive position during the Meeting. Recording equipment will be placed as directed by Treasury staff.
6. The recording citizen must be orderly, quiet and non disruptive to the Meeting. Violators will be denied entrance or ejected from the Meeting as circumstances dictate.
7. Equipment must not disrupt the Meeting by noisy operation.
8. All recording equipment and persons operating same must remain at a non disruptive distance from the table where Board members are seated.
9. Questioning or commenting during the Board Meeting is prohibited. Neither the public nor the media have voice at the Meeting and shall refrain from vocalizations except as invited by the Chair during the Meeting.
10. Board members and Treasury staff may, but are not required to, respond to questions or give statements before the Meeting or after the Meeting is adjourned. This procedure also applies to communications not associated with a Board meeting. Board members are free to communicate with the public and media in any manner they choose. Board members are encouraged to communicate with Treasury staff for information or data needed to accurately respond to such inquiries; or refer the inquiry to Treasury staff if a Board member does not desire to respond directly.
11. Broadcasting of the Meeting to the internet via web casting, web cameras or any other device is strictly prohibited.
12 . All audio and video recording must cease immediately upon adjournment of the Meeting except for brief question and answer session that may be allowed and announced by the Board at the time of adjournment.
13 . All video and audio recording devices must be in plain view and easily identifiable to Board members and treasury staff. Possession or use of secret or undisclosed recording devices is strictly prohibited and will be reason for ejectment from the Meeting .

I would email requests to both Kay Ivey at alatreas@treasury.alabama.gov and alapact@treasury.alabama.gov, but that's just me.

Work harder and work smarter!

by: mooncat @ Sun Mar 22, 2009 at 11:57:27 AM CDT

by: you @ soon

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Funny (4.00 / 1)

I was writing something similar when you posted this, but didn't think to include the addresses.

It would be a VERY GOOD IDEA to send those e-mails and keep a copy if you're planning to record.

It's more fun if you comment!

by: geno @ Sun Mar 22, 2009 at 12:10:30 PM CDT

[ Parent ]

Transparency! (4.00 / 1)

Can't have accountability without transparency. I think the OMA applies to the board. This is what makes me think so:

this includes (but is not limited to) all corporations and other instrumentalities whose governing boards are comprised of a majority of members who are appointed or elected by the state

That cuts right through the argument over whether this is a "true" public agency, because it IS established by statute and if you look at section16-33C-4, "Composition of the Board," you will see that two members are statewide elected officials and five more are appointed by elected officials. That's a majority of the board "appointed or elected by the state."

And let me call your attention to one part of the board's procedures for meetings. Page 12 [emphasis mine].

2. Requests to record must be delivered to the Treasurer in writing or by electronic mail 48 hours in advance. The requests are for informational and planning purposes and do not diminish the right of the public to record a Meeting.

Do not let them use this against you. as long as you are abiding by the other rules, they can't turn you away for failing to give notice in advance without breaking their own rule. It would be a very good idea to send them a notice if you are going and planning to record the meeting, though.

Look at the requirements for an executive session, too. And pay careful attention to the details and the reason they give if they decide to go into executive session.

You can't really stop them from going into executive session, but you can report every word they said leading up to it, and everyword they say when they come out, and let people draw their own conclusions about it. That's a legitimate thing to do.

I agree with what mooncat is saying here about "hunkering down." At the very least, that is a poor choice of words. I see it as indicative of the problem. Someone is afraid of accountability, so they are doing their best to provide as little transparency as possible. Because transparency is how we get to accountability.

It's more fun if you comment!

by: geno @ Sun Mar 22, 2009 at 12:09:13 PM CDT

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PACT Linkfest (0.00 / 0)

A little off-topic, but someone might find this useful.

I've put together a summary with the major pieces that we've done so far. Was going to do this a little later tonight, but someone asked for it, so I went ahead. This should be a good catch-up piece if you know anyone who needs it.

Next step is to re-write so that it's just an information piece, and add links to resources like the document collections, the letter-writing campaign, etc. Once I do that, I'll put it in a diary here and will also put it on a permanent page on the sidebar over at my place.

It's more fun if you comment!

by: geno @ Sun Mar 22, 2009 at 15:26:30 PM CDT

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Lost in translation? (4.00 / 1)

Kay Ivey says she has "been hunkered down" with the board and financial risk experts to find solutions to shore up the program for the short term.

Translation; She has been hunkered down with the board and the financial risk experts that created this mess to find a way to cover their donkeys for the short term.

What we don't know; What board members and what financial risk experts she's "hunkered down with". All of the board or some of the board?

Ivey was asked after the meeting how she would answer opponents in a political race who hammer her about the prepaid tuition program's financial problems.

"I'm going to stay on the facts," she said. "I've spent my time trying to find solutions, not making political hay."

Translation; I'm trying to find a way to turn this situation into political gain.

What we do know that if this had happened under a democrat there would be all kinds of investigations, indictments and convictions.

Ivey said the state needs to continue the progress it has made under Republican Gov. Bob Riley, who can't seek a third term.

Translation; I'm going be Riley in a skirt.

What we don't know; What progress was made under Bob Riley that will be continued.

We don't know what we don't know.

The work goes on, the cause endures, the hope still lives and the dreams shall never die.~Senator Edward M. Kennedy (D. MA)

by: Redeye @ Mon Mar 23, 2009 at 11:53:51 AM CDT

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