Atlanta City Attorneys Defend Secret Vote, Contradicting Law’s Plain Language

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(APN) ATLANTA — Two staff attorneys for the City of Atlanta prepared a memo in response to the open meetings compliance inquiry brought by Atlanta Progressive News, according to a copy of the memo obtained by APN.

The memo was prepared for Councilwoman Felicia Moore (District 9) and Clerk, Rhonda Dauphin Johnson, on April 23, 2010.

Previously, APN challenged the Council on the legality of their failure to record the details of a February 2010 vote held during the Council retreat regarding whether to limit public comment in all Council Committees.

Acting City Attorney Peter J. Andrews and Assistant City Attorney Kristen Denius argued that the City had not violated the Georgia Open Meetings Act because, they argued, it was not a roll-call vote, and that only roll-call votes should be recorded.

“The minutes of the Atlanta City Council Retreat do not violate the requirements of the Georgia Open Meetings Act. These minutes include a description of the straw poll that was taken and the results of the vote. As this was not a roll-call vote, the law does not require that the names of each Council member voting for and against the proposal be recorded in the minutes,” the memo stated.

However, the law–which they themselves cited verbatim–clearly states that “In the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.”

Therefore, according to the law, the minutes in the case of an 8 to 7 vote, if it was not a roll-call vote, should have at minimum listed the seven members voting against the majority. The City apparently refuses to do this and is defending this as the City’s ongoing policy going forward.

Atlanta Progressive News is preparing to take legal action against the City of Atlanta to obtain declaratory and injunctive relief, seeing as how not only does the City appear to have broken the law, but it is prepared to continue to do so if not challenged.

APN has already drafted a lawsuit and consulted with attorneys in the community in preparation for filing.

BACKGROUND

On February 19, 2010, the Council held its annual Retreat at the Georgia Aquarium. The meeting was advertised as a public meeting and was open for members of the public to attend.

During the Retreat, the Council took a vote on whether to establish the so-called “issue” of public comment as a priority of the Committee on Council, for the Council to draft rules which would limit public comment in every Council Committee.

The vote was 8 to 7 to keep the current rules governing public comment–which are that each committee sets its own rules. However, the vote details were not recorded.

On March 01, 2010, APN made a written request to the Office of the Clerk for a copy of the official minutes of the Council Retreat.

On March 08, 2010, the Clerk’s office sent a copy of the minutes to APN by email. A copy was also sent to the Atlanta Progressive News post office box.

The minutes stated the following in regards to the vote on public comment: “During a working lunch, Council members discussed public comment at Council committee meetings. Committee on Council (COC) Chair Felicia Moore polled the members asking if they wanted to amend the current governing Code Section 2-136 entitled Remarks from Public, to set uniform time limits/ rules for public comment at committee meetings.”

“After an extensive discussion it was determined that the membership was not in supporting of amending the existing law. Currently, public comment time limits are set (or not) at the discretion of the Committee chair,” the minutes said.

“According to Robert’s Rules of Order, which the Council and its Committees operate under, a Chair’s decision may be overruled by a required vote of the membership,” the minutes said.

“Time did not allow for discussion of additional proposed COC related items. Chairperson Moore noted that those discussions would be held at a place date and time to be announced,” the minutes said.

The minutes did not state how many members voted one way nor how many members voted the other way. Nor did the minutes list which members voted which way.

Clerk Rhonda Dauphin Johnson spoke with APN by telephone to explain why the vote details were not recorded. Johnson stated the reason was because it was not a vote on legislation, but was a “straw poll.”

Councilwoman Felicia Moore (District 9) also spoke with APN by telephone regarding the vote at the Retreat and gave the same explanation for why the vote details were not recoded as Johnson did.

On April 19, 2010, the present writer spoke at the Committee on Council, where Moore is Chair. APN distributed copies of the Georgia Open Meetings Act to all Members of the Committee.

“A summary of the subjects acted on and those present at a meeting of any agency shall be written and made available to the public for inspection,” the law states.

“Said minutes shall, as a minimum, include the names of the members present at the meeting, a description of each motion or other proposal made, and a record of all votes,” the law states.

“In the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining,” the law states.

“Again, the minutes, which I obtained, did not list how anybody voted at all,” the present writer said. “So if it wasn’t a roll-call vote, then, you know, if it was unanimous, that would be one thing; but if it was split in any way–and I understand the decision was 8 to 7–my understanding is that that should have been listed.”

“I believe the action taken could’ve fallen under ‘other proposal’ made,” the present writer said. “I think this is important… First of all, my readers want to know… how people voted. It was a public meeting. Moreover, I am concerned about the precedent this sets and how this could be used in the future. Could this be used as a mechanism for the Council at a Retreat, at a private… place, make a decision that is too controversial to make publicly, and this is kind of a back-door way to do that?”

Later that day, APN presented the same information to the Full Council.

“The issue Mr. Cardinale has raised has been submitted to ask the person who is our expert in open meetings, open law. I do concede and did at the Committee [on Council] meeting with Mr. Cardinale that perhaps we should have written the names of the seven Council Members who said go one way and the eight others that said the other, but we did not do that. So it’s not part of the record, it was an oversight, and that’s something we will certainly correct in the future,” Councilwoman Moore in response.

“We did not do what we should have done and that is put each person’s name but that is an oversight that will no longer take place,” Moore said.

On April 20, 2010, APN sent an email to Council President Mitchell officially requesting: “(1) that your office explain why you believe you’re in compliance with the Open Meetings Act, if you do believe that. (2) And that the incomplete minutes be amended to include how people voted, that is unless you have something to hide.”

On April 27, 2010, APN sent a follow-up email to Mitchell, asking whether he intended to reply.

On April 27, 2010, Mitchell’s staff member, Stephanie Johnson, replied on behalf of Mitchell, sending a copy of a legal opinion authored by Andrews and Denius.

In this legal opinion, the City has changed its argument from saying that the vote was unrecorded because it was not a vote on legislation, to now arguing that the vote was not recorded because it was not a roll-call vote.

Also, it is unclear whether the City will honor Moore’s statement that the omission was “an oversight that will no longer take place” now that the City’s attorneys have argued that the vote details did not need to be recorded.

The limitation of public comment was such a controversial issue that apparently the City is willing to go to great lengths to defend the secrecy of the vote details. Members apparently had the understanding that their vote that day would be secret.

(END/2010)

About the author:

Matthew Cardinale is the News Editor for The Atlanta Progressive News and is reachable at matthew@atlantaprogressivenews.com.

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