Hodge headshot

Brian Hodge

Chase Tristian Espy, deputy legal counsel for Governor Kay Ivey was arrested last week on charges of soliciting a child for a sex act over the internet. It seems Espy was focused more on depraved solicitations with minors than he was doing his job. Maybe that is why the governor issued a legally deficient, State of Emergency order that included a provision making it easier for local governments to hide their actions from the public.

   With regards to the “Public Meeting” section of Ivey’s order, which was no doubt intended to give local governments cover to amend their meeting practices in favor of disclosure in the presence of a public health emergency, Ivey achieved exactly the opposite effect. Ivey’s order states that public bodies that do not make available video or audio recordings of their meetings must provide a written summary of their meetings to recount the deliberations conducted and actions taken, “No less than twenty-four hours following the conclusion of the meeting.” You read that correctly. Clearly the intent was for the order to read “no more than” rather than “no less than,” but the rights and wrongs of public administration don’t turn on what is reasonably intended, but rather what is actually written or adopted.

  If a city council of a smallish Alabama town does not make video or audio recordings of their meetings available at all, they are no more required to make a written summary  available under this order than they are to develop a space program. The order explicitly forbids them from releasing the summary “less” than 24 hours after the conclusion of the meeting, but does not require them to issue a summary “more” than 24 hours after the meeting. A citizen does not have a leg to stand on to complain about their city council failing to issue a written summary, because technically, the council is not required to do so. In fact if the Montgomery City Council decided to stop putting video of their meetings online, they too could hold their meetings in relative secrecy.

  The fact that this got past a bunch of $300 per hour attorneys from silk-stocking law firms and was discovered by a lowly newspaper editor makes for an entertaining quip. But the really disturbing part is that after I brought it up, both with my trade association (Alabama Press Association) and the governor’s office directly, the governor’s office has refused to correct the error. I was told they would “wait and see if it becomes an issue.” Governor this is an issue; and before it gets any worse you need to simply admit that there was a mistake and correct it. Don’t let a legally deficient order persist under your name and seal just because you don’t want to call attention to an error.

  Of course the broader problem is that Alabama has a woefully inadequate open meetings and open records statute. Efforts to hold public officials accountable for their misconduct in disseminating public documents, such as charging them with felonies for violating the law, are defeated annually in legislative sessions. Clearly our current legislature is more on-board with medical marijuana, something I thought I would never see, than they are with open government.

  Ivey, along with every other state office holder, is up for re-election next year. It is a good year for incumbents. Politics watchers in the state have it figured that outside of the race for the next junior U.S. Senator from Alabama,  this will be a lackluster election year. They are probably correct, sadly.

  Is this fumble over a State of Emergency order enough to throw Ivey out of office? Not in my view, but the question is not up to me. I would expect Ivey soured more tongues when she put the squeeze of legislators, especially freshmen legislators, to pass a perpetually increasing tax on gasoline mere moments after her last election win. I certainly hope those who go to the polls in the GOP primary remember that. Also, Ivey has failed to solve a major problem which is the Alabama prison system. It is a problem which, admittedly she inherited, but has failed to address and the one time she attempted to address it she took arguably the worst possible approach.

  Ivey should take a page out of the 12-step program and realize that the first step to solving a problem is admitting you have a problem. Ivey’s administration has some real problems and they don’t start or end with a flawed State of Emergency Order or a perverted lawyer using public time and resources to cruise for minors. These are symptoms of a more serious disease. It is not the cough that carries you off. It is the coffin the carry you off in.