City of Atlanta Now Insists Straw Poll Was Vote After All

facebooktwittergoogle_pluslinkedinmailfacebooktwittergoogle_pluslinkedinmail

(APN] ATLANTA — In a recent Brief of Appellees to the Georgia Court of Appeals, the City of Atlanta and individual Defendants–including several Council Members and the Municipal Clerk–have now completely reversed their argument and are insisting that the so-called straw poll of the February 2010 Council Retreat, was a vote after all.

After arguing for months that the vote was a straw poll, not a vote on legislation, a lark, and an expression of opinions, the City of Atlanta now emphatically argues the opposite: that the vote was in fact a vote and there is no difference between a vote and a poll.

“Appellant seems to assert that Appellees violated the requirements of the Georgia Open Meetings Act by referring to the vote in question as a ‘poll’ instead of a ‘vote.’  Appellees contend that it is immaterial which term is used in this instance as the requirements for recording the results of the vote were met regardless which term was used,” City attorneys wrote in the brief, dated November 01, 2010.

City Attorneys cite Black’s Law Dictionary definitions, which describe both a poll and a vote as an expression of opinions or preferences.

Wherever could the Plaintiff have gotten the idea that there was a difference between a straw poll and a vote?  In fact, Council Members argued for months that because the vote was not really, actually, formally, officially a vote, that the details did not need to be recorded in the official minutes of the Retreat.

As previously reported in an ongoing series by Atlanta Progressive News, the Council took a vote at the Retreat over whether to establish limiting public comment at all Council Committees as a priority for the Committee on Council for 2010.

However, neither the Council nor the Clerk, Rhonda Dauphin Johnson, recorded which Council Members voted which way.  The official minutes obtained by APN simply say that COC Chairwoman Felicia Moore (District 9] polled the Members as to their preference, and that the membership decided to keep with the current rules, which allow each Committee discretion over setting any time rules [only one committee, Community Development, has such a rule, and exceptions are frequently made].

After receiving the incomplete minutes, APN spoke with Johnson and Moore to learn why the individual votes were not recorded.  Both Johnson and Moore argued that because it was not a vote on legislation–and rather it was a vote on a proposal to establish a committee priority which could have possibly led to a vote on legislation down the road–they did not believe it needed to be recorded.

Then, APN consulted the Georgia Open Meetings Act, and read the law aloud at a COC meeting.  OCGA 50-14-1(e](2] 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.”  APN emphasized that the law requires a listing of votes not only of motions, but also all “other proposals.”

Moore requested that the City’s law department opine upon the matter, but they issued an opinion stating that those voting for and against a proposal only need to be recorded for roll call votes.

For all other votes [non roll-call votes] the law states, “It shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the names of the persons voting against the proposal or abstaining.”  City attorneys did not address that part of the code, however.

APN’s Editor, the present writer, filed a Motion for Declaratory and Injunctive Relief in Fulton County Superior Court on May 17, 2010.

Still, individual Council Members, including those refusing to state their vote publicly, continued to insist the vote was a straw poll.

Councilman Ivory Young (District 3] said at one Committee meeting, “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.”

Councilman Alex Wan (District 6] told Georgia Voice magazine that he participated not in a vote, but a “lark.”

As previously reported by APN, Fulton County Superior Court Judge Christopher Brasher ruled on August 24, 2010, that the GOMA only states that “it shall be presumed the action taken was approved by each person unless the minutes reflect the names of the persons voting against the proposal or abstaining.”  Brasher ruled that this did not create a mandate for those voting against the proposal or abstaining to be listed; that it only created a presumption on the part of citizens that the vote was unanimous if the minutes do not list otherwise.

Still, Brasher noted that the minutes do not state a vote occurred.  “Other than this paragraph [describing Moore’s ‘poll’] the minutes did not remark on the issue, and never stated that a vote occurred.  The preferences of the individual Council Members were not listed.  The Complaint and the documents attached thereto contain the first mention of a ‘vote,’ and are the sole record of the votes of some of the Council Members.”

Brasher notes that the GOMA also requires the minutes contain “a record of all votes” generally, but states that APN’s Editor did not argue that the minutes failed to do so.

In an Appellant’s Brief filed October 12, 2010, with the Georgia Court of Appeals, APN’s Editor responded, claiming that Judge Brasher made at least five errors in his ruling, and asking for the case to be remanded back to Judge Brasher for a full hearing.

APN’s Editor claimed, among other things, that the May 2010 Complaint did argue that the Defendants failed to list a record of all votes generally.  The Complaint described an ongoing controversy as to whether the vote was a vote or a straw poll, and argued that the official minutes of the Retreat did not include the “vote details,” which would include the fact that a vote occurred at all.

The Brief also argued that the GOMA indeed requires those voting against the proposal or abstaining to be listed for non-unanimous, non-roll call votes, by making an implied mandate.  It further argued that the current official minutes are misleading, deceptive, and erroneous because they infer that the vote was unanimous, when the record already shows the vote was split.

“If the minutes are in error, then perhaps they should be corrected… Of course, here the minutes are entirely silent as to a vote,” Brasher had ruled.

Again, in the City of Atlanta’s Brief of Appellees, filed November 01, 2010, they now argue that the minutes do state that a vote occurred, because they state that a poll occurred and that there’s–now, all of a sudden, when it’s convenient for their argument–no difference between a vote and a poll.

APN’s Editor reminded the Court of the complete reversal by Defendants–which shows that they do not really have a position but rather will argue anything to get away with the actions they have already taken–in a Appellant’s Reply Brief filed November 22, 2010.

According to the Georgia Court of Appeals’s clerk’s office, the Court will issue an opinion on the secret vote lawsuit any time between now and July 2011.  APN’s Editor requested oral arguments, which were denied by the court in a one sentence ruling.

At issue in this case is whether government agencies within the State of Georgia have the right to take a secret vote.

Leave a Reply

Your email address will not be published. Required fields are marked *


+ one = 4