Georgia Supreme Court Seeks Olens’s Opinion on Atlanta’s Secret Vote

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(APN) ATLANTA — The Supreme Court of Georgia has requested the opinion of Georgia Attorney General Sam Olens in a letter dated September 01, 2011, regarding the lawsuit currently before the Court, Matthew Cardinale v. City of Atlanta et al., which was brought by APN’s News Editor–the present writer–challenging the City Council of Atlanta’s secret vote of February 2010.

“Dear Attorney General Olens, At the direction of the Court, I am writing to request that you assist the Court by filing an amicus curiae brief in the above noted appeal addressing the issue listed below,” Clerk Therese “Tee” Barnes wrote.

“Whether the Court of Appeals erred in interpreting the Open Meetings Act to allow the minutes of a public meeting not to record ‘the names of the persons voting against a proposal or abtaining’ where the vote was not taken by roll-call and was not unanimous.  See OCGA 50-41-1(e)(2),” Barnes wrote.

“Copies of all matters on file in this granted certiorari as well as the opinion issued by the Court of Appeals are enclosed for your review.  Please note that the matter is scheduled on the October 24, 2011 morning oral argument session,” Barnes wrote.

“The Court appreciates your cooperation,” Barnes wrote.

Olens’s office had previously expressed their intent to file an amicus brief when the Court granted the petition in July.

According to the Georgia Supreme Court rule 23, “Amicus curiae briefs may be filed without prior permission.”  Therefore, it appears it was not necessary for the Court to send Olens such a letter in order for Olens to have permission to submit the “friend of the court” brief.

Based on previous conversations with Senior Assistant Attorney General Stefan Ritter, the AG’s opinion regarding the City of Atlanta’s secret vote is consistent with that of APN’s Editor.

As previously covered by APN, at issue is whether the Open Meetings Act requires agencies to list in the minutes who voted against a proposal or abstained in the case of a non-roll call vote.

Councilwoman Felicia Moore (District 9) conducted a vote at lunch at the February 2010 Council Retreat over whether to limit public comment at Committee Meetings, but the minutes do not state who voted which way.

OCGA 50-14-1(e)(2) states that in the case of a non-roll call vote, “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.”

Lower courts, including Fulton County Superior Court Judge Christopher Brasher and a Court of Appeals panel, ruled that this section does not require the listing of the names of those voting nay or abstaining, but merely requires citizens to presume the vote is unanimous if the minutes do not list any names.

APN’s Editor has argued that the Court should look at the intent of the law, that is, open and transparent government, when interpreting the clause.

Case law states that statutes should be construed in terms of their plain language, unless such a construction leads to an absurd or irrational result.

APN’s Editor has argued that it is an absurd or irrational result, that citizens should have to assume a vote is unanimous when the vote is split.

In a recent Appellant’s Brief filed by the City of Atlanta on August 22, 2011, the City of Atlanta argued that the vote was not a secret vote because it was taken at an open meeting.

“In an interpretation of the Act allows for the presumption of unanimity in non roll-call votes, where the vote may not have actually been unanimous, would not have the effect of allowing closed-door meetings or secret votes.  This is illustrated by the fact that in this case, the vote at issue was taken in a meeting which was open to the public during which anyone could have witnessed the details of how the City Council voted,” the City states in its Brief.

However, this only highlights the absurdity of their interpretation of the statute: If a citizen attends the lunch at the Retreat, they can know who the seven yeas and eight nays are; however, if a citizen reads the minutes, by law they “shall” assume the vote was unanimous.  So, who is right?  The effects of the City of Atlanta’s interpretation is to create a Tower of Babel where a fraction of the City believes, under legal mandate, that all fifteen Council Members voted nay, and where another fraction of the City, who witnessed the vote, believes the vote was seven to eight.

The Attorney General’s office has stressed in its statements about the case that there clearly is some ambiguity in the way the current statute is written; that case law says that the Open Meetings Act is remedial in nature and should be broadly construed; and that when there are doubts of interpretation regarding a statute, that they should be resolved in favor of openness.

APN’s News Editor is preparing to argue before the Court on October 24, 2011.  Oral arguments are open to the public and concerned citizens are invited to attend.

The Georgia First Amendment Foundation has also drafted an amicus brief in the secret vote lawsuit, which the organization is planning to file soon.

Incidentally, Olens’s Office also helped draft the proposed HB 397, the most significant overhaul of Georgia’s Open Meetings and Open Records laws since 1988.

HB 397, among other things, would eliminate any distinction between the vote-recording requirements for roll-call votes and non-roll call votes, thus, eliminating any question over whether secret votes are allowed.  While Olens’s Office believes secret votes are disallowed by the current law, they would rather make it even clearer in the plain language of the law.

On Tuesday, August 30, 2011, APN’s News Editor testified before the House Judiciary Civil Committee in support of HB 397, which is expected to be considered early next year when the House reconvenes for its regular session.

In Tuesday’s testimony, APN’s News Editor recommended ways to make the section clarifying the illegality of secret votes even stronger, and testified overall about the ongoing pattern of violations by the City of Atlanta as creating a need to enact HB 397.  Councilwoman Moore and Senior Assistant City Attorney Kristen Denius attended the Committee hearing and were present to observe the testimony.

(END / 2011)

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