Atlanta Progressive News

(APN) ATLANTA — A Notice of Appeal was filed yesterday, September 14, 2010, in Fulton County Superior Court, regarding the secret vote lawsuit brought by the present writer against the City of Atlanta and several Council Members.

The case file will now be sent over to the Georgia Court of Appeals to be placed on the docket there.

The lawsuit was filed in May 2010 after Council Members held a vote at their February 2010 Council Retreat at the Georgia Aquarium–over whether to set multi-committee public speaking limits at City Council–without recording who voted which way.

On August 24, 2010, Fulton County Superior Court Judge Christopher Brasher dismissed the lawsuit, granting the City of Atlanta’s Motion to Dismiss for failure to state a claim upon which relief can be granted.

However, based on the analysis provided in the Judge’s ruling, it is also even more clear that the official minutes of the February 2010 Retreat in their present form are misleading and erroneous.

JUDGE BRASHER’S RULING

The section of the Georgia Open Meetings Act governing the vote-recording requirements of official minutes for open meetings distinguishes between roll-call votes and non-roll-call votes.

The vote at the Retreat was a non-roll-call vote. For such votes, the law states: “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.” OCGA 50-14-1(e)(2).

“The minutes… never stated that a vote occurred,” Judge Brasher wrote in his ruling. Indeed, the minutes refer to the vote as a poll. However, various Council Members sent emails to Atlanta Progressive News this earlier this spring stating how they “voted.” And City Attorneys also used the word vote in their legal briefs.

“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 wrote.

“The Plaintiff contends that he is entitled to know how each member of the Council voted on this issue. He has therefore sued the City along with those Council members whose votes he does not know alleging a violation of OCGA 50-14-1(e)(2) of the Open Meetings Act,” Brasher wrote.

“The Defendants have moved to dismiss the lawsuit. They argue that the Plaintiff has misinterpreted [the section], and that under a proper interpretation the Plaintiff is not entitled to relief,” Brasher wrote.

“The Plaintiff… points to the phrase… where a matter is deemed unanimously approved except where it is otherwise noted that a person abstains or votes against the proposal,” Brasher wrote.

“This [section], according to Plaintiff, creates a duty on the part of the Defendants to list the names of the Council members who voted against the proposal or who abstained,” Brasher wrote.

“It is undisputed that the minutes in question did not list the names of the persons voting against the proposal or abstaining. Contrary to Plaintiff’s argument, however, this omission, rather than constituting a violation of the OMA, merely creates a presumption that ‘the action taken was approved by each person in attendance,'” or was unanimously decided, Brasher wrote.

“Of course, the Court does not know how the vote was put to the Council: in the positive or negative. Aside from semantics, however, the statute does not create a duty on the part of the government to place the names of the ‘nay-sayers’ or the abstainers in the minutes,” Brasher wrote.

“If the minutes are in error, then perhaps they should be corrected,” Brasher wrote, adding, however, that “the statute does not mandate that the names be listed.”

MINUTES ARE ERRONEOUS, MISLEADING

As noted above, in Judge Brasher’s ruling, he concludes that the omission of names of persons voting against the proposal or abstaining creates a presumption–on the part of citizens reading the minutes–that the vote was unanimous.

However, the vote was not unanimous, and evidence was already presented to the court to show that the vote was not unanimous.

As previously reported by APN, Committee on Council Chairwoman Felicia Moore has admitted publicly that the vote was split, 7 in favor of changing the current rules, and 8 opposed.

In addition, of the nine Council Members who have admitted how they voted, 2 of them were yes votes and 7 were no votes.

Therefore, even though Judge Brasher ruled that citizens are obligated to construe the minutes as stating that the vote was unanimous, the record already shows that the vote was not unanimous.

Therefore, the minutes are in error.

Again, Brasher wrote: “If the minutes are in error, then perhaps they should be corrected.”

UPCOMING APPEAL

The present writer will have 20 days from the docket date at the Georgia Court of Appeals to file an appellant’s brief. The City of Atlanta and other Defendants will have 20 days after that to file their appellee’s brief.

After conferring with two local, progressive attorneys, the present writer is prepared to make several arguments in the appeal, some of which are listed below.

First, the appeal will reiterate that the Georgia Open Meetings Act must be construed broadly.

“The appellate courts of Georgia have consistently held that the Georgia Open Meetings Act is remedial in nature and must be broadly construed,” the present writer stated in response to the City’s Motion to Dismiss.

“The Supreme Court stated in Atlanta Journal v. Hill 257 Ga. 398, 399, 359 S.E.2d 913, 914 (1987) that the Act was ‘enacted in the public interest to protect the public–both individuals and the public generally–from ‘closed door’ politics and potential abuse of individuals and the misuse of power such policies entail. Therefore, the Act must be broadly construed to effect its remedial and protective purposes,” the brief stated.

Second, the appeal will argue that a plain language reading of the OMA–as undertaken by Judge Brasher–leads to an absurd and impractical consequence, specifically, that the City of Atlanta is allowed to publish erroneous and misleading minutes.

Judge Brasher cited two cases regarding how to read a statute.

“In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry,” Brasher wrote, citing Cross v. Stokes (2002).

“Further, statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat their legislative purpose, and statutory construction must square with common sense and sound reasoning,” Brasher wrote, citing City of Atlanta v. Miller (2002).

It defies common sense and sound reasoning that the City of Atlanta should be able to legally publish official minutes which present a vote as unanimous even when the vote is split. Allowing minutes to be erroneous and misleading, in effect, defeats the purpose of keeping official minutes.

Moreover, it is important to note that this case never got to the discovery process. Despite the fact that all nine individual defendants received interrogatories, and that document requests were to have been filed shortly thereafter, the Defendants never actually answered any of the questions asked of them.

Therefore, when Judge Brasher notes that he does not know if the public comment question was posed in the affirmative or the negative, that is exactly the kind of thing that would have been revealed in discovery had the case not been dismissed prematurely.

Third, the appeal will argue that Judge Brasher should have been more liberal in dealing with this lawsuit seeing as how the Plaintiff, the present writer, is a pro se litigant.

Fourth, the appeal will argue that the complaint put the defendants on sufficient notice that there is also an additional question to be resolved regarding whether the Retreat was properly advertised.

(END/2010)