Atlanta Progressive News

(APN) ATLANTA — The City of Atlanta and certain City officials were served on Monday, May 24, 2010, with the lawsuit previously filed by Atlanta Progressive News’s editor [the present writer] over failure to comply with the Georgia Open Meetings Act.

The lawsuit argues the Defendants failed to comply with the Georgia OMA by taking a secret vote at the February 2010 Retreat at the Georgia Aquarium over whether to limit public comment in all Committee meetings.

Council Members including Alex Wan (District 6) have argued that they have the right to take a vote in secret, by calling it a straw poll. In this case, the Council voted on a proposal of whether to establish limiting public comment as a priority of the Committee on Council for 2010.

The Council did not record which members voted against the proposal, as required by the Georgia Open Meetings Act for non-roll call votes.

The case has also been assigned to Fulton County Superior Court Judge Christopher Brasher.

Meanwhile, Councilman Wan divulged his secret vote to the Georgia Voice magazine for an article that the publication has posted online. Georgia Voice is a new magazine formed by original Southern Voice founder Chris Cash and Sovo’s former Editor, Laura Douglas-Brown.

Only after the lawsuit was filed did Wan finally disclose that he–as suspected–voted yes to draft new rules limiting public comment in every City Council Committee.

This means there are now only five Council Members–Carla Smith (District 1), Ivory Young (District 3), Howard Shook (District 7), Joyce Sheperd (District 12), and Lamar Willis (Post 3-at-large)–who have not disclosed their vote.

Wan is now the third Member who reported voting yes, in addition to Keisha Bottoms (District 11) and Aaron Watson (Post 2-at-large).

In addition, seven Members have reported voting no: Kwanza Hall (District 2), Cleta Winslow (District 4), Natalyn Archibong (District 5), Yolanda Adrean (District 8), Felicia Moore (District 9), C.T. Martin (District 10), and Michael Julian Bond (Post 1-at-large).

Moore and others have stated that the vote was 7 to 8. Therefore, one of the remaining Furtive Five must have been a yes vote; the other four must have been no votes. APN suspects that either Smith or Shook were the one unknown yes vote.

WAN MISLEADS ON SECRET VOTE, ACCUSES APN OF BULLYING, HARASSMENT

In addition, Wan accused APN of not only bullying tactics, but now also harassment.

As previously reported by APN, Wan wrote in an email to the law department that he refused to state how he voted. “I have no intentions of answering his question. I don’t appreciate this manner of bullying over a matter I believe he will have little or no grounds for any lawsuit. I base much of that on the written opinion you provided to Councilmember Moore… about this matter. That said, I wanted to make sure that as our counsel, you’re comfortable with my position and that if he does end up filing the lawsuit as threatened that the City is prepared to defend me and any other Councilmembers that choose not to submit to his tactics.”

In other words, Wan felt it was important that taxpayer funds be spent to defend his perceived right to a secret vote.

Wan reiterated his position to Georgia Voice magazine: “At the retreat there was dialogue about the issue. Felicia Moore asked how everybody stood on this to see if this [limiting public comment] was worth pursuing.”

According to Georgia Voice, Wan “argued that the lawsuit fails for two reasons – the retreat was not a secret meeting and public notice was given, and that the discussion about public comment was basically a straw poll to see if the issue should be pursued further.”

However, Wan is confusing the issue. First, just because the meeting may have been technically open to the public, that does not mean it satisfied the vote recording requirements of the Georgia OMA.

Second, the OMA requires details to be recorded for votes on all motions and “other proposals.” Voting to “see if the issue should be pursued further” would be a vote on an “other proposal” under the OMA.

“It was just a lark,” Wan told Georgia Voice.

However, the Georgia OMA has not have a section or exemption called “lark,” or “straw poll” for that matter.

“No action was taken. Everything stayed the same,” Wan said.

However, Wan is incorrectly implying that vote details only need to be recorded if a motion or proposal passes. The Georgia OMA does not exempt vote details from being recorded simply because a motion or other proposal fails.

“The irony is [Cardinale] got what he wanted. I’m baffled he would want to waste city resources this way. We have really pressing issues we should be focusing on. We have very open, liberal policies for public comment,” Wan told Georgia Voice.

However, Wan is the one who had previously sought to make sure the City’s law department was prepared to use taxpayer dollars defending his perceived right to a secret vote; all Wan had to do to be excused from the lawsuit was be transparent to the public.

Besides, when Wan ran for office in 2009 his campaign literature stated his platform included “accountability and transparency.”

“He says we were voting on a proposal and there should have been a roll call when in reality we were not voting. Eight said they were comfortable with how things were, seven said we should explore,” Wan told Georgia Voice.

However, the lawsuit does not argue it should have been a roll call vote. The lawsuit very clearly states that the Georgia OMA requires vote details to be recorded for both roll call and non-roll call votes.

“Then he started harassing council, firing off emails to council, legal, the clerk,” Wan said.

However, all APN did was send Wan and other Council Members an email asking how they voted. In the email, APN noted that a lawsuit would be filed, seeing as how all of APN’s attempts to pursue administrative remedies with the Clerk, Council President, and Committee on Council Chairwoman, were unsuccessful.

Under the Georgia OMA, not only the City of Atlanta but all individuals participating in a meeting not in compliance with the Act could be liable, with individuals facing not only civil but criminal penalties.

Therefore, APN gave individual Council Members an extraordinary opportunity to disclose their vote, even though they had already participated in the secretive and unrecorded vote.

But instead of appreciating the opportunity to be transparent and be excused from the lawsuit as a defendant, Councilman Wan perceived the email as harassment and bullying.

In APN’s analysis of this accusation, when just last year a Georgia student committed suicide after being bullied in school, it demeans the tragedy of their experience when Councilman Wan attempts to label an email asking him to disclose his vote as bullying.

Wan also attempted to justify his efforts to limit public comment in his interview with Georgia Voice.

“The chair can waive the five minute rule if someone is giving a lot of information and goes over,” Wan told Georgia Voice.

However, what Wan did not say is that he has voted as a Committee Member against every request from members of the public to receive more time. In fact, he has voted against public comment extension requests, and against public comment in general, more than any other Council Member this Session.

“There are also so many other ways to communicate with council. With emails you have written record,” Wan told Georgia Voice.

However, when APN attempted to utilize email to communicate with Wan, he accused the news agency of bullying and harassment.

“This is to encourage public participation. I’ve have constituents tell me they can’t attend meetings that last three or four hours. That discourages public participation. I think this does encourage public participation,” Wan told Georgia Voice.

However, Wan’s favored time limits have already discouraged public participation. In the last several months, members of the public have gotten up to speak only to say that there is no point in talking because they aren’t going to have enough time. Others have been interrupted mid-sentence and unable to finish their remarks.

Meanwhile, when arbitrary time limits are put on how long one person can speak, it can cause several people to feel they have to form a coalition to speak so that all information will be covered. That means, instead of one person making one presentation, Wan’s preferred limitations require multiple people to make multiple presentations, thus encouraging redundancy and wasted time between speakers.

LAWSUIT BACKGROUND

Previously, the Complaint for Declaratory and Injunctive Relief was filed Monday, May 17, at Fulton County Superior Court. The case number is 2010-CV185775, Matthew Cardinale v. City of Atlanta et al.

The 49 page filing includes a 13 page complaint and Exhibits A through Q. The exhibits include the incomplete minutes of the retreat which describe the vote but do not list which Members voted which way; a memo from the City’s law department; and several emails between APN and Council Members.

Now that the City and nine other defendants have been served by the marshall, they have 30 days to respond.

The complaint seeks at least five remedies from the court:

“(A) Declare that Defendants’ failure to record the vote details is unlawful under Georgia OMA [Open Meetings Act], pursuant to O.C.G.A. § 50-14-5 (a);”

“(B) Declare that Defendants’ position–that it is unnecessary to record those voting in the minority on a proposal in non-role call votes–is inconsistent with the Georgia OMA, pursuant to O.C.G.A. § 50-14-5 (a);”

“(C) Grant injunction ordering Defendants City of Atlanta and Rhonda Dauphin Johnson to amend the minutes to include the omitted vote details. Order the six Council Members who have not yet done so, to disclose how they voted [if they have not already done so by the end of this proceeding], pursuant to O.C.G.A. § 50-14-5 (a);”

“(D) Fine the individual Defendants five hundred dollars ($500) each and charge each with misdemeanors, in order to discourage Defendants from continuing to violate the law, pursuant to O.C.G.A. § 50-14-6;”

“(E) Pay any reasonable legal costs incurred by Plaintiff in bringing this action, pursuant to O.C.G.A. § 50-14-5 (b); and (F) Grant all other appropriate relief.”

The case will set an important precedent, being the first case in Georgia history to challenge noncompliance with the voting recording requirements of the Georgia Open Meetings Act, according to the Georgia First Amendment Foundation. A review of OMA case history shows that most OMA compliance cases have challenged meetings that were literally closed to the public.

In this case, the meeting was open but poorly advertised, so no one attended the lunch session where Council Members decided whether to draft new rules limiting public comments in all Council Committees going forward. In addition, the vote details were unrecorded.

At issue in this case is whether the Council or any public body in Georgia has the right to an informal vote or straw poll vote.

At least one Council Member, Ivory Young, has argued that there is such a right. “No vote was taken. And so, I encourage anybody that wants to challenge that to do so, if they want to spend their funds to do it. But I didn’t take a vote, I was polled, somebody asked me a question, but you will never see as a formal record of any sort a vote that was taken on the opinion on public comment.”

Atlanta Progressive News is of the position that if a quorum is assembled and the outcome of the collective decision determines what action is taken or not taken, then that is a vote.

The Georgia OMA does not have a section called straw poll or informal show of hands.

The OMA does require: “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. 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.”

Acting City Attorney Peter Andrews wrote in a memo to Chairwoman Moore that the City had not violated the Georgia OMA because the names of the Members voting for or against the proposal only need to be recorded for roll-call votes.

However, 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.” So, according to APN’s reading of the law, at minimum, the minutes should have listed which Council Members voted against the proposal or abstained.

After several unsuccessful requests to Moore and Mitchell that the minutes be amended, APN emailed all 15 Council Members asking them to disclose how they individually voted.

APN believes the citizens of Atlanta require relief from the non-transparent and secretive practice of straw poll voting at the Atlanta City Council. If the Council is able to set the precedent once–and if the law department and some Council Members are defending the practice–then the next straw poll could be whether to draft a property tax increase or whether to furlough police.

The citizens cannot make informed choices about who to vote for during election season if they do not know how their representatives voted on key issues decided upon by the Council. APN produced an incumbent scorecard in 2009 and wants to include the “public comment vote” in its 2013 score card.

(END/2010)

About the author:

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

Revised syndication policy:

Our syndication policy was updated June 2007. For more information on how to syndicate Atlanta Progressive News content, please visit: http://www.atlantaprogressivenews.com/extras/syndicate.html