Atlanta Progressive News

(APN) ATLANTA — Atlanta Progressive News’s News Editor–the present writer–has sued the City of Atlanta and other City officials for their involvement in a secret vote conducted in February 2010 at the Council Retreat at the Georgia Aquarium.

The Defendants in the suit are the City of Atlanta, Council President Ceasar Mitchell, Municipal Clerk Rhonda Dauphin Johnson, Committee on Council Chairwoman Felicia Moore (District 9), and the six Council Members who refused to disclose their vote: Carla Smith (District 1), Ivory Lee Young (District 3), Alex Wan (District 6), Howard Shook (District 7), Joyce Sheperd (District 12), and Lamar Willis (Post 3-at-large).

The Complaint for Declaratory and Injunctive Relief was filed Monday, May 17, 2010, at Fulton County Superior Court. The case number is 2010-CV18775, 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.

The City and nine other defendants will be served by the marshall within a week or two, and will have 30 days to respond.

The complaint seeks at least four 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.

Those reporting a yea vote, in support of drafting public comment restrictions, included: Keisha Lance Bottoms (District 11) and Aaron Watson (Post 2-at large).

Those reporting a nay vote, in support of keeping the current rules in place allowing each Committee discretion, included: 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 reported the vote was 7 yeas to 8 nays. Thus, of the six Council Members who have not disclosed their votes, one must be a nay vote and the others must be yea votes.

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.

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.

The present writer filed pro se and thus will be personally arguing the case in court, although various community members assisted in the drafting and editing of the complaint, including activists Dwanda Farmer (former candidate for the Post 1-at-large seat), Ben Howard, and Edith Ladipo (former candidate for District 11).

In announcing the filing of the lawsuit to the Council on Monday, the present writer performed a rap song during the Full Council’s public comment portion. The 90 second rap song, “All I wanna say is that y’all don’t rally care about the public,” was a remake of the classic Michael Jackson song, “All I wanna say is that they don’t really care about us.”