TALLADEGA -- The Talladega City Council twice voted to seek an attorney general’s opinion regarding whether emails and other communication between city officials and city employees are public records under state law.
The first vote was 3-2, with Council President Dr. Horace Patterson and Councilman Gerald Cooper voting no.
When he heard Patterson voting no, Councilman Jarvis Elston expressed a desire to change his vote but ultimately did not do so. When the same measure was voted on again a few minutes after the first vote, Patterson voted in favor, but Cooper still cast a dissenting vote.
The resolution asking for an attorney general’s opinion was on the agenda for Monday night’s regular council meeting. Councilman Ricky Simpson first made the motion to approve, which was seconded by Elston.
Councilman David Street said he wanted to know who would make a determination as to whether a councilman could get the written and electronic records requested. Adding that he was not certain if this would require a separate attorney general’s opinion, he said “Who makes that determinations, is it the city manager, the council president, the city attorney…”
Patterson said, “In some instances, it is a judgement call, when you’re talking about correspondence and day-to-day operations. I’ve been around a week or two, and I know there are some things that it is just not appropriate for the council to receive, especially when you’re talking about something between a manager and an employee that she’s dealing with.
“Sometimes it is just not appropriate for council members to want to know everything that is going on in that office. That makes it difficult to be effective and to get things done.”
City attorney Mike O’Brien said he believed an individual councilman had the same right to request a public document as an individual resident, but no more. If a majority of the council requested a document, however, that would likely be a different matter.
O’Brien recommended seeking the AG’s opinion to clarify what must be disclosed in each situation, however.
Elston said he had concerns about privileged information, but “I try to lead by example, which is why I don’t throw eggs at anyone anymore. I try to make an error with caution.”
Patterson said the issue of what was public was a judicial matter, and he recommended against “tying up the manager’s office with document requests from the council. They’re the executive branch, and we’re the legislature. They have sensitive documents and fragile communications. Frankly, I’m antsy about the council having too much information.”
Elston added, “It could disrupt things if more people came up here and didn’t email. We’d open up Pandora’s box.”
Patterson also said giving too many people access to information could result in information getting out to the community that shouldn’t.
“It could undermine situations down the road that might be resolved between a manager and a person otherwise,” he said.
The council then took the 3-2 vote, with Elston asking for clarification on what the motion that he had previously seconded was.
O’Brien “strongly recommended the council seek the opinion. It gives you cover and provides guidance, and it will protect you from liability,” he said.
Said Patterson, “I am concerned that a councilman, and it could be me or anyone else, could file these requests every day.”
Elston agreed and said he planned to change his vote to no on seeking out the opinion.
“I just want to know if the situation is different if it involves us doing our duty as councilmen,” Street said.
After determining that a second vote would be necessary, the council approved the request 4-1, with Patterson changing his vote to yes and Elston remaining a favorable vote.
City Manager Beth Cheeks apologized for any confusion over the wording of the resolution, although the council agreed the wording was not the cause of the confusion.
Alabama Press Association attorney Dennis Bailey said the questions the council was asking had previously been addressed in two procedural leaflets published in 2001 and 2013 by the State Records Commission and Local Government Records Commission.
These documents point out that state law says specifically that “any document is a government record when it is created by a government employee in the course of conducting public business. Email messages are records and should be treated the same way paper records are treated.”
The document goes on to say that the law “does not limit government records to those only created and/or stored on a government property. Content determines whether or not a record is a government record, not format or the machines or email accounts used to create the document.”
Lastly, the document states, “Email records are subject to the same legal requirements regarding access as any of the agency’s other government records.
“Although the (law) ‘every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute,’ the legal issues governing such access are frequently very complex and may vary from one agency to another. Specific policies for each agency are likely to be the responsibility of the agency’s legal counsel.”
As for an existing attorney general’s opinion, Bailey said he couldn’t “find an AGO that even questions whether email records of public entities are public records.”
Clashing over Winfrey
Street and Patterson also clashed Monday over the appointment of Dr. Adia Winfrey to a vacant seat on the Historic Preservation Commission.
Winfrey had applied for the position, and Street, who is both the council liaison to the HPC and a member, made the motion to appoint her; the motion was seconded by Simpson.
Patterson questioned her qualifications for the position, prompting Simpson to withdraw his second. Specifically, Patterson questioned Winfrey living outside a designated historic district and her training for the position.
Street pointed out that the qualifications listed in the city ordinance require residence in the historic district or training or experience in some aspect of historical preservation. The fact Winfrey lives in the city and has spent several years restoring and cleaning up a historic community cemetery in the Knoxville area met the qualifications.
“That’s what it says in her application, and I am basing her qualification on that,” Street said.
Elston said he had worked with Winfrey on the cemetery project and could vouch for her involvement.
Mayor Jerry Cooper (no relation to Gerald) said he had been told he had a role in appointing HPC members at one time, although he was later told this was the manager’s responsibility. He suggested seeking an AG’s opinion on what powers the mayor did have under the city’s current form of government.
O’Brien said the city had gotten such an opinion several years ago, when the form of government changed. He also explained that it was up to the city manager to nominate HPC members, but the council would have to vote to approve them.
Cheeks nominated Winfrey for the position, Street made the motion to approve the nomination, and Elston seconded it. The motion was approved unanimously.
Winfrey was not present Monday night.
Further coverage of Monday’s council meeting will appear in Wednesday’s Daily Home.