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Prattville Library Board likely breaks open meetings law to name interim director

The Open Meetings Act requires government entities, including boards, give at least 24 hours’ notice of a special meeting.

The exterior of the Prattville Public Library on a summer day.
The exterior of the Prattville Public Library on a summer day. STOCK
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Two days after the questionable termination of embattled library director Andrew Foster, the Autauga-Prattville Public Library Board likely violated the Open Meetings Act at a special called meeting to name an interim director.

The board posted public notices on its website and Facebook on Friday after 10 a.m. for Saturday’s 9 a.m. meeting, potentially violating a requirement under the Open Meetings Act that government entities, including boards, give at least 24 hours’ notice of a special meeting.

Laura Clark attorney for the Autauga-Prattville Public Library Board, emailed APR editor Bill Britt Monday morning to demand a retraction of this story, stating that the meeting qualifies as an “emergency meeting” under the Open Meetings Act, which only requires a one-hour notice.

“Under Code of Alabama 36-25A-3(6)(b) only one hour notice is required where there is an emergency meeting called when there is an immediate action required,” Clark wrote in her email. “Included in that is to prevent damage to property. Given the protests by the library employees who were locking doors and causing other property damage (currently under police investigation so this cannot be discussed), an emergency meeting was required to hire an interim director to restore order and protect property.”

Legal sources told APR that narrowly tailored exception allowing emergency meetings has typically been related to natural disasters. 

A locksmith van was seen outside the Prattville library after 9 p.m. Saturday in an apparent effort to rekey the building.

While Clark frames the meeting as an emergency meeting, the notice itself simply refers to it as a “special called meeting.” Despite claiming that this was an emergency meeting to prevent imminent destruction of property, the notice was published on Facebook at least 22 hours and 20 minutes in advance, just 100 minutes shy of being acceptable notice for a specially called meeting. 

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APR intercepted Chair Ray Boles and Vice Chair Rachel Daniels as they slipped out the back of the library to inquire why the meeting had seemingly been held in violation of the Open Meetings Act, but neither public official responded to the request. The two board members also ignored questions from Alabama Reflector reporter Ralph Chapoco and Elmore-Autauga News reporter Malia Riggs, not even acknowledging the journalists.

Boles told APR on Feb. 8 that the board hired Clark at $200 per hour to help avoid Open Meetings Act violations, admitting he had made at least one mistake in a prior meeting by calling an executive session without a vote. The board also committed at least one other violation in that meeting—voting in executive session on nominee recommendations—as the board returned from executive session without taking any further action, yet had two names submitted to the city as nominees.

The city council honored those two unlawfully recommended nominees, Quincy Minor and Gloria Kuykendall. Minor and Kuykendall sided with Boles and Daniels Thursday on the vote to terminate Foster, and again Saturday on the vote to name part-time library associate Tammy Bear Kuykendall also voted in favor with the county appointees to change the policies on Feb. 8 to exclude gender identity and sexual orientation from books in the children’s and young adult sections of the library.

A pattern of secrecy

The board has established a pattern of secrecy and unlawful activity, some observed and some merely implicated. The board has made obvious mistakes such as entering an executive session without a vote and failing to give proper notice of a special meeting. But the board has also raised questions about transparency as it has made major votes without public discussion.

The board did go into executive session for about 17 minutes to discuss firing Foster, but that has also raised concerns about multiple violations of the Open Meetings Act. 

Although executive sessions are allowed under the Open Meetings Act, they are never required, and they are narrowly tailored. The board voted to go into executive session “to discuss the good name and character of an individual.” This was the lone item listed on the agenda with no notice of any personnel action or that it involved Foster. 

However, Foster told media afterward that board members gave him the option to resign or be terminated almost immediately upon entering the executive session under the pretense that he sent confidential information to the press—Foster elaborated that the board pinpointed his response to a public records request from APR.

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But Foster released those records in the performance of his job as library director and as the custodian of records of his own email communications, bringing into question whether the executive session was unlawful. According to the Open Meetings Act, executive sessions cannot be called to discuss the job performance of a “public employee required to file a statement of economic interests” in executive session. All “full-time public employees acting as a supervisor” are required to file a statement of economic interests, including Foster.

Further, Foster attempted to record the executive session and was told by Clark that he was violating criminal law and to stop recording, which he did. When press received a paltry written statement from Boles after the public meeting—a public meeting that took place almost exclusively behind closed doors—the typed statement noticeably had a scrawled addition “and violation of criminal law.”

Sources indicate that this was added specifically in reference to Foster’s attempt to record the executive session, but sources with intimate knowledge of the Open Meetings Act told APR that they have no reason to believe recording an executive session is illegal. It is not mentioned in the Open Meetings Act, and Alabama only requires one party to consent to recording.

In an effort to ensure APR was not overlooking a portion of the law, we asked Clark following Foster’s termination to clarify what criminal law he violated.

“I could, but I’m not going to,” Clark responded.

After the publication of this story, Clark finally elaborated in her call for retraction.

“(Code of Alabama Section) 36-25A-6 states that executive meetings cannot be recorded,” Clark said. “Further this can be considered criminal eavesdropping but this is also currently under police investigation.”

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A special article from the Alabama League of Municipalities states that “Section 36-25A-6 specifically allows any person in attendance at a meeting to make a recording provided the recording does not disrupt the conduct of the meeting,” but that this “does not apply to executive sessions.”

The law appears to refer to the right of the general public to record an open meeting, and the general public has no right to record an executive session. The law does not expressly create an exception to Alabama’s law allowing recording as long as one person participating in the conversation consents. 

Clark references the criminal statute on “eavesdropping,” but the criminal law only applies if the person recording is not part of the communications.

Section 13A-11-31 states that “a person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time.” 

The immediately preceding code section defines “eavesdropping.”

“To overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law,” the statute reads.

Foster was engaged in the communication, which definitionally precludes him from violating the law.

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Boles changes the story on why Foster was fired

While Boles ignored most media outlets present Saturday, he did talk to The Montgomery Advertiser’s Marty Roney, apparently giving a completely different reason for Foster’s termination than what was publicly announced and reiterated through a pre-typed public statement just two days earlier.

The sudden pivot calls into question which explanation is to be believed. 

Again, the official reason given for Foster’s termination at Thursday’s meeting was for providing confidential information to the press, and for violation of criminal law.

But according to The Advertiser, Boles said “Foster was fired because he ignored directions about reviewing a list of books currently in the children’s section” and that “the list was provided by concerned parents who feared the content ‘was sexual in nature’ and Foster was told to review them for a possible move to the adult section.”

If that is the case, it appears clear that the termination would be based on “job performance” and that it should not have been discussed in executive session. And the description Boles provided to The Advertiser would go outside the proper channels in the polices that allow patrons to submit books for a reconsideration process. 

Public records reveal confusion about purpose of book list

While APR has not yet been able to review the meetings between Boles and Foster, Boles did indicate that Foster recorded those meetings.

Public records obtained by APR, however, align with pieces of Boles’ claim and refute others.

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The records make no mention of the list being generated by concerned parents. The public record does reveal (by inference) that Boles asked Foster to highlight books on the list that did not appear to be sexual in nature.

“Per your instructions on the 26th, all highlighted materials are ones that do not seem to have explicit sexual content or intercourse based on the research I was able to do,” Foster told Boles in an email.

It is not clear whether Boles told Foster that he intended to keep those highlighted books in the children’s section, but he did ask Foster to immediately move the books with sexual content to the adult section and place a red label on them.

“I hope this clarifies the new policies,” Boles said. “When can you have the books that you did not highlight back out in the adult section and mark with a red label? Also you need to pull the other books that you highlighted until we have time to go through them.”

That directive, however, followed an email from Clark that, according to Boles’ own statements, completely mischaracterized the conversation at hand. While Boles and Foster were obviously talking about moving books, Clark titled her email “Open Meetings Act and book removal” and advised that Boles could advise on what books violate the policy and therefore should be removed.

Also, based on Boles’ new description of how the list was generated, it appears that Clark’s advice would suggest that the patron’s concerns should go through the reconsideration process and be subject to the Open Meetings Act.

“If it is done through the request of a patron who went through the material reconsideration process, then it must be done through a meeting and decision of the committee and the board subject to the Open Meetings Act,” Clark said. “If it is done through the normal course of weeding, then a meeting is not required.”

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Clark’s email lists those two options as the only impetus for book removal. 

If Boles did intend for Foster to only move the books with sexual content to the adult section, Clark’s email provides sufficient confusion by drastically mischaracterizing the purpose of the list.

“The Chairman advised you with a list of examples and asked you include them in your weeding out,” Clark wrote.

Although Boles specifically asked for books to be relocated, and Clark specifically advised that Boles had asked for the books to be removed, Boles made no mention of the contradiction and instead told Foster “I hope this clarifies the new policies.”

Foster, however, did note the stark departure of Clark’s email from the conversation at hand. He also noted his understanding of the list’s purpose.

“The list you provided to me was to provide clarification of what books fell under the new policy since my interpretation clearly did not match the board’s,” Foster said. “This is why I’ve asked so many questions about why and how the books were chosen. The fact that the list does not seem to be consistent with the policies at face value is troubling to me. Again, any clarity that the board can provide would be appreciated.”

A lack of public discussion and fine-tuning of the policy by the board only compiles its vagueness. Although each board member approved of the policy as written, they did not deliberate on it publicly. And they couldn’t have deliberated on it privately without violating the Open Meetings Act. 

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While individual board members are free to tell Foster what they interpret the policies to mean, Foster is not beholden to any individual board member’s interpretation. An edict from any board member to act on their personal interpretation of the board’s policy would violate the Open Meetings Act, as that discretion is only given to the board as a whole.

Boles says he doesn’t want to move “LGB” books, in contradiction with policies

Boles told The Advertiser that he had no intent to move “LGB” books out of the children’s section despite the new policies including “sexual orientation” as part of the prohibited topics in content for minors.

“I told (Foster) any book that was (LGBTQ) in nature, to highlight them on the list,” Boles said. “I wanted to review those books, to put them back in the children’s section. I wanted parents to make the decision of what books their children could check out. He pulled all the books and told me that’s what our policy said to do. We didn’t want any book banned or removed. But if it had sexual nature, I wanted it in the adult section.”

In the original version of the article, Boles left off the “T” in “LGBT” that stands for “transgender,” so it is not clear whether he left out the topic of gender identity intentionally or inadvertently.

Boles has refused to talk to APR since the Feb. 8 meeting, calling the site “fake news” and “fake reporters.”

“This is not about doing anything against (LGBTQ people), they are a part of this community,” Boles told The Advertiser. “I have friends that are LG, and I love them. I wanted to show the mad mommas that we took their concerns to heart and that any books that had a sexual nature were moved out of the children’s section.

“It was never about banning books or removing books. Foster pulled the books and wouldn’t put them back on the shelves in the adult section.”

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However, the policies specifically prohibit “sexual orientation, gender identity and gender discordance” in materials advertised for minors 17 and under, regardless of what Boles wants done or interprets. 

The Alabama Public Library Service Trustee Handbook specifically lays out that library directors are “responsible to the board as a whole, but not responsible to each board member individually.”

“Individual board members, including the board president, have no power to make demands or give orders to the director,” the handbook states. “This does not rule out individual board members asking the director for clarification about issues facing the board or discussing with the director concerns that individual board members may have. The board must speak with one voice when delegating to the director, when giving direction to the director, and when requesting information. The director must serve the board as a whole in order to manage the library efficiently.”

Foster has attempted to make this clear in the public records retrieved by APR.

“I stated in our meeting that the changed policy states that ‘the Library Board of Trustees reserves the right to exercise discretion over all library material, including but not limited to books. . .,’ which seems to be what comes into play here-that the library board is exercising that discretion regarding the list of books I was given to have them moved to adult sections due to the changed selection criteria,” Foster wrote to Boles. “However, since that is a decision of the full library board, the board is required to make those decisions in an open meeting, per the Open Meetings Act.”

The board might have been better prepared for handling its role if the new members had attended mandatory training from the APLS, which sources tell APR the board still has not participated in.

The nominating subcommittee will meet Monday to discuss potential nominees for the remaining vacant seat on the board, a city appointment. 

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The subcommittee will meet at 5 p.m. inside the library.

Jacob Holmes is a reporter at the Alabama Political Reporter. You can reach him at [email protected]

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