Atlanta Progressive News

(APN) ATLANTA — The City of Atlanta and seven Council Members have responded to a lawsuit filed by the News Editor of Atlanta Progressive News–the present writer–challenging their practice of holding seven closed-door Committee Briefings every two weeks.

The City’s Answer was filed in Fulton County Superior Court on June 17, 2011, and APN’s News Editor received a copy Tuesday, June 21.  The case, 2011-CV-200639, is before Judge Jerry Baxter.

As previously reported by APN, the lawsuit seeks Judge Baxter to declare that the City violated the law by failing to allow in the public, failing to keep minutes and agendas, and failing to comply with pre-meeting advertising requirements for the Committee Briefings.

The lawsuit also asks Judge Baxter to enjoin the City from continuing to hold closed-door Briefings.  And it seeks misdemeanor fines for seven Committee Chairs who conduct and participate in the Briefings.

The City declined to file a Motion to Dismiss, which is significant because the case will now move forward into discovery.  APN’s News Editor plans to file interrogatories and document requests in the near future.

A Motion to Dismiss–which was not filed in this case–typically argues that, even if all the allegations made are true, that there is no legal basis for granting relief.

Therefore, the City’s decision not to file a Motion to Dismiss is significant because the City is implicitly admitting there is a legal basis for granting relief.  At issue now will be establishing for the court that there is a factual basis to the allegations in the Complaint, something discovery will help to determine.

In related news, APN has learned that the City has already begun to modify how it conducts its Committee Briefings as a result of the lawsuit.

According to a confidential source, Councilwoman Felicia Moore (District 9), Chairwoman of the Committee on Council, requested the Law Department to produce a memo on the legality of the closed-door Committee Briefings in light of the questions raised by APN.

The Law Department, according to this source, proceeded to produce the memo, which advised Council Members that they should avoid having a quorum at the Commitee Briefings and avoid discussing the substance of topics that are on the agenda on the actual Committee Meeting.

According to this source, for the last month or so, Committee Briefings have been confined to discussions of procedural issues, for example, whether there will be an amendment to a piece of legislation.

Moreover, any Council Members who began discussing the substance of matters before the Committees have been advised to save their comments to be made publicly on camera.

This further implies that City of Atlanta attorneys see at least some problem with the way the Committee Briefings had been conducted previously.

To be sure, the present writer still believes the Committee Briefings need to be open, pre-advertised, and recorded, even if they are confined to procedural matters.  Moreover, as long as the Committee Briefings are closed to the public, citizens are left having to trust that the Council Members are only discussing procedure [even if it were acceptable to do so privately, which it is not].

Georgia Attorney General Sam Olens’s Office is continuing to review the lawsuit and additional information requested from the present writer.

Olens’s Office told the Atlanta Journal-Constitution newspaper they were considering joining the lawsuit as a Plaintiff.  Olens’s office has yet to make a decision and that’s all APN can say about it right now.

CITY MAKES TWELVE DEFENSES

The City and Council Members made twelve defenses in their Answer; for the most part, they were standard or boiler plate defenses.

First, Defendants write, “All actions taken by Defendants were pursuant to the ordinances of the City of Atlanta, the laws of the State of Georgia and of the United States and of the United States Constitution and the Constitution of the State of Georgia.”

However, the Complaint argues they violated the Georgia Open Meetings Act (GOMA), state law that is grounded in both the Constitution of Georgia and the Constitution of the US.

Second, Defendants write, “At all times relative to the Complaint, the actions of Defendants were such as to entitle them to the defense of immunity.”

However, the GOMA clearly states that individuals knowingly and willfully participating in closed meetings in violation of the Act are subject to misdemeanor fines.

Third, “Insofar as Plaintiff has been affected the conduct was reasonable, proper, and necessary under the circumstances.”  It is not immediately clear why it would be reasonable, proper, and necessary to hold closed meetings in violation of the Act.

Fourth, “At all times relative to the Complaint, the acts of Defendants were taken in the good faith exercise of their duties and responsibilities as imposed by the law.”  It is not immediately clear why it would be in good faith to hold closed meetings in violation of the Act, to continuously deny requests to open the meetings, and to continuously defend the practice.

Fifth, “The Complaint fails to state a claim upon which relief can granted.”  As stated above, if Defendants truly believed this they would have filed a Motion to Dismiss and asked the judge to weigh in on the issue.

Sixth, “Plaintiff’s claims are barred due to his failure to comply with the notice provisions of OCGA 36-33-5.”

However, OCGA 36-33-5 is regarding ante litem notice, which would apply if one wished to file a monetary claim against a city.  And the present Complaint seeks declaratory and injunctive relief, not monetary damages.

Seventh, “Plaintiff’s claims are barred by the statute of limitations.”  However, there is no statute of limitations which would apply to a Complaint brought pursuant to the GOMA.  While there is a ninety day limit if one wished to overturn a vote or action, the present Complaint does not seek to overturn any votes.

Eighth, “Defendants have fully performed their duties and obligations to Plaintiff.”  The Complaint argues otherwise.

Ninth, “Defendants assert that an injunction does not lie in order to restrain acts which have been fully consummated.”

However, the Complaint does not ask the judge to go back in time and restrain past actions; it asks the judge to restrain future actions.

Tenth, “Defendants assert that equity is unavailable to constrain future violations of the Georgia Open Meetings Act, because a duty to obey the law already exists.”  However, the Complaint argues that the fact that the law already exists has not been sufficient to cause the City to obey said law and therefore an injunction is necessary.

Eleventh, “Plaintiff’s Complaint fails to put Defendants on adequate notice of Plaintiff’s claims against them.”

Again, ante litem notice is not required because monetary damages were not sought.  While not required, Defendants were given ample opportunity to remedy the problems before the Complaint was filed.  Moreover, after the Complaint was filed they were served by the sheriff and received a courtesy copy by hand delivery.

The final defense consisted of responses to the factual allegations in the Complaint.  The City admitted the most basic facts, but said they had insufficient information to confirm or deny many of the alleged facts in the Complaint.

The upcoming discovery period will be the opportunity to ask Council Members, Chiefs of Staff, Policy Analysts, Committee Secretaries, and others everything they know pertinent to the Closed-door Committee Briefings.

(END / 2011)