Atlanta Progressive News

(APN) ATLANTA — City Attorneys for the City of Atlanta and various Council Members filed an Answer as well as a Motion to Dismiss in response to the lawsuit brought by Atlanta Progressive News’s News Editor–the present writer–which alleged that a secret vote at the February 2010 Retreat violated the Georgia Open Meetings Act.

In the Motion to Dismiss, three City Attorneys–Deputy City Attorney Jerry De Loach, Assistant City Attorney Kristen Denius, and Assistant City Attorney Amber Robinson–argue that APN’s Editor failed to state a claim upon which relief could be granted. However, they completely misrepresented the claim that was made in the complaint.

In addition, City Attorneys used the terms “vote” and “proposal,” thus admitting–despite previous efforts by Council Members to do otherwise–that indeed, a vote occurred and that the subject of the vote was a proposal.

APN’s Editor has about two weeks remaining in which to respond to the Motion to Dismiss, and has already prepared a full draft of the response.

As previously reported by APN, the case has been assigned to Judge Christopher Brasher in Fulton County Superior Court, case 2010-CV185775.

The case was originally filed on May 17, 2010. APN’s Editor has also filed a First Set of Interrogatories upon all of the individual defendants, including Council President Ceasar Mitchell, Municipal Clerk Rhonda Dauphin Johnson, Committee on Council Chairwoman Felicia Moore, and the “Secretive Six” Council Members who would not disclose their vote: Carla Smith, Ivory Young, Alex Wan, Howard Shook, Joyce Sheperd, and Lamar Willis.

The Secretive Six were served with interrogatories on June 07, 2010. The others were served on June 21. The filing of the Motion to Dismiss postpones discovery until such time that the judge rules on the Motion to Dismiss. If the judge rules against the City’s motion, then both discovery and the legal case itself will go forward.

APN’s Editor will argue that Defendants have not met the burden required by law in order to grant a Defendants’ Motion for Dismissal for Failure to State a Claim.

Defendants admit in their Motion to Dismiss that they must meet a very high burden in order for the case to be dismissed.

“A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of relief sought.”

CITY ATTORNEYS MISLEAD COURT REGARDING SECRET VOTE COMPLAINT

APN’s Editor alleged in the original complaint that the City and various Council Members violated the vote recording requirements of the Act when Council Members participated in a secret vote, where the minutes did not list who voted against the proposal [to limit public comment] or abstained, in a vote at the February 2010 Retreat.

The Act specifies that in the case of a non-unanimous, non-roll-call vote, the minutes shall state who voted against the proposal or abstained.

However, City Attorneys misrepresented the claims made in the complaint. Therefore, instead of arguing against the claims actually made, they argue against claims that were not made.

For example, they mislead the Court by stating “Plaintiff alleges that the City violated the requirements of the Georgia Open Meetings Act by not creating a record of the names of each person voting *for or against* the proposal.”

The key words there are “for or against” as opposed to “against or abstained.”

Here is what the Georgia Open Meetings Act requires: “In the case of a roll-call vote the names of the members voting for and 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.”

City attorneys argue “The clear language of [the Act] only requires that the names of each person voting for or against a proposal be recorded in the case of a roll-call vote. Consequently, except in the case of a roll-call vote, minutes do not violate the requirements of the Open Meetings Act where they do not record the names of each person voting for or against a proposal.”

However, again, APN’s Editor argued in the complaint (paragraph 24, 25, Exhibit E, Exhibit G) that the City violated the law by failing to list who voted against the proposal or abstained, as that is what the law requires for non-roll call votes which are not unanimous.

But the City Attorneys argue against a claim that APN’s Editor did not make by using the words “for and against” [the requirements for a roll call vote] instead of “against or abstaining” [the requirements for non-roll call votes]. They then argue that because their vote was not a roll call vote, they did not break the law.

Elsewhere in the complaint, Plaintiff repeatedly and consistently specifies which vote details were missing from the Retreat Minutes:

Basically, the City Attorneys repeated the misleading argument they made in their memo to Chairwoman Felicia Moore after APN first raised the issue of the apparent City violations of the Act.

APN’s Editor wrote in an email (Exhibit E) to Chairwoman Felicia Moore in response to the memo: “Specifically, they [City attorneys] argue that only the details of roll call votes need to be recorded. But that’s not what the plain language of the law states… 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. Perhaps you should request the law department to reconcile their assertions with the clear language of the law?”

APN’s Editor used similar language in an email to all Council Members (Exhibit G) requesting them to disclose how they voted.

APN’s Editor also read sections of the law aloud at a Committee on Council meeting and added analysis making it clear that the City did not appear to comply with the requirements for non-unanimous, non-roll call votes (paragraphs 24, 25).

Thus, it is clear APN’s Editor has consistently argued that the City failed to comply with the requirements specific to non-roll call votes, that is, listing who voted against the proposal or abstained.

But Defendants use their misrepresentation to argue for dismissal of the complaint. “Because Plaintiff’s argument that the City violated the Open Meetings Act by failing to record the names of each person voting for or against the public comment proposal is without merit, and because all of Plaintiff’s causes of action and claims for relief contained in the Complaint rest on this central argument, the Complaint should be dismissed in its entirety.”

It should be noted that APN Editor already responded to the exact same misrepresentation by City Attorneys (see Exhibits E and G) after they first issued their memo to Felicia Moore.

Despite the fact that APN’s Editor has already pointed out that they did not comply with the requirements specific to non-unanimous, non-roll call votes–and that the law department erroneously asserted compliance with the law without addressing that clause–Defendants continue to misrepresent Plaintiff’s argument before the Court, thus obfuscating and confusing the issue.

This suggests City Attorneys either did not read or comprehend the Complaint, or that they are seeking to skirt the issue by confusing and misleading the Court.

In addition, even if City Attorneys construed the original complaint as stating Defendants should have recorded who voted both for as well as against the proposal–as opposed to just who voted against it or abstained, as the law requires–that still doesn’t mean they followed the law.

In order words, if the law requires them to do A [list who voted against], but a complaint argues they failed to do A and B [list who voted against and for], Defendants still violated the law by not doing A, even if B is not required.

Meanwhile, City Attorneys completely failed to address the section of the law they appear to have violated, even though they cite the Act and quote the relevant passage in full.

CITY ATTORNEYS ADMIT A VOTE ON A PROPOSAL TOOK PLACE

Another significant development as a result of the City Attorneys’ filing of their Motion to Dismiss is that they have admitted that a vote on a proposal took place.

The Georgia Open Meetings Act requires that “The minutes of a meeting… 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.”

Council Members had not previously admitted that a vote had taken place.

Originally, Chairwoman Moore told Atlanta Progressive News that she did not believe she had to record the votes because it was not a vote on actual legislation, but whether to establish limiting public comment as a priority for the Committee on Council.

Yet, after reading the Act aloud to Moore’s Committee, APN raised the issue that the Act requires vote details to be recorded on “each motion or other proposal made,” and argued that Moore’s vote fell under “other proposal made.”

Chairwoman Moore has called the vote a “straw poll.”

Councilman Alex Wan (District 6) called the vote “a lark” in an interview with Georgia Voice magazine.

Councilman Ivory Young (District 3) said he did not participate in a vote, but that he simply gave his opinion, in his remarks before the Community Development/Human Resources Committee.

However, numerous Council Members used the word “vote” to describe their action, in their emails to APN stating how they voted.

Now, City Attorneys used the words vote and other proposal, thus admitting that it was in fact a vote that would therefore fall under the Act under “other proposal made.”

For example, they wrote, “During a working lunch on the second day of the Retreat, a PROPOSAL [emphasis added] was introduced to amend the ordinance governing the Atlanta City Council… Following extensive discussion of the proposal, the members of Council raised their hands to indicate their VOTE [emphasis added] on the proposal.”

CITY ATTORNEYS MAKE ARGUMENT INTERPRETING CLAIMS AGAINST INDIVIDUAL DEFENDANTS AS CLAIMS AGAINST CITY OF ATLANTA

City Attorneys also include a section in their motion arguing that the claims made against individual Defendants, including certain Council Members and Clerk Johnson, should be interpreted as claims against the City of Atlanta.

The City of Atlanta, as well as nine individuals, are named in the suit as Defendants.

Yet, APN’s Editor did indeed intend for both the City of Atlanta as well as certain individuals to be named as individual Defendants.

The Georgia Open Meetings Act prescribes remedies which accrue to the individuals participating in a meeting in violation of the Act, including misdemeanor charges and fines.

APN’s Editor has therefore requested such charges and fines for the individual Defendants named in the complaint. Cities cannot get misdemeanors; obviously the Georgia Open Meetings Act intended for some consequences for individuals.

The complaint could have named all 16 Council Members and the clerk and the City.

However, APN’s Editor took the extraordinary step in good faith of asking the 15 voting Council Members to disclose their votes, even though none of the votes were not listed in the minutes.

The reasoning was that it was not clear whether anyone other than the Clerk, Chairwoman Moore, or Council President Mitchell were involved in the decision to keep the vote a secret.

Therefore, if Council Members were willing to disclose their vote–as nine were–they were not willing participants in the secretive character of their vote.

And conversely, if Council Members were not willing to disclose their vote–as the Secretive Six were not–they were willing participants in the secretive character of said vote and should be held individually responsible.

(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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