Atlanta Progressive News

(APN) ATLANTA — The Supreme Court of Georgia agreed on Monday, July 11, 2011, to hear a case brought by the News Editor of Atlanta Progressive News–the present writer–challenging the decision by the City Council of Atlanta to take a secret vote in February 2010.

The present writer filed a Petition for Certiorari, asking the Georgia Supreme Court to hear the case, on March 28, 2011.

This is only the thirty-third case that the Court has agreed to hear this year to date, out of at least 2,000 Petitions filed.

As previously reported by APN, the City Council took a secret, or unrecorded, vote at the February 2010 Retreat at the Georgia Aquarium, over whether to limit public comment at Committee Meetings.  Although the vote was said to be split–seven in favor and eight opposed–the vote was not recorded in the minutes.

The present writer sued for Declaratory and Injunctive Relief in Fulton County Superior Court in May 2010, where the case was dismissed upon a Motion to Dismiss by the City of Atlanta.

At the heart of the issue is whether the Georgia Open Meetings Act allows for unrecorded votes in the case of non-roll call votes.  Fulton County Superior Court Judge Christopher Brasher ruled that unrecorded votes were allowed, and a three-judge Court of Appeals panel agreed in a February 10, 2011, ruling.

But the Georgia Supreme Court has decided to weigh in on the issue.

“The Supreme Court today granted the writ of certiorari in this case.  All the Justices concur, except Benham and Melton, JJ., who dissent,” the Court’s order states.

[It is ironic that when the Court justices themselves take a split vote–similar to the one at issue in this case–those who dissent from the majority are recorded in the court’s own records.]

“This case will be assigned to the October 2011 oral argument calendar automatically under Supreme Court Rule 50 (2), as amended September 13, 1996.  Oral argument is mandatory in granted certiorari cases,” the order states.

“This Court is particularly concerned with the following issue or issues: Whether the Court of Appeals erred in interpreting the Open Meetings Act to allow the minutes of a public meeting not to record ‘the name of the persons voting against a proposal or abstaining’ where the vote was not taken by roll-call and was not unanimous.  See OCGA 50-14-1(e)(2),” the order states.

“Briefs should be submitted only on these points.  See Supreme Court Rule 45,” the ruling states.

The present writer is not an attorney and will be arguing the case as a concerned citizen.

OCGA 50-14-1(e)(2) states that for non-roll call votes, the vote shall be presumed unanimous unless the minutes list the names of those voting against the proposal or abstaining.

The present writer argues this implies that when non-roll call votes are non-unanimous, that the law requires the names of those voting against the proposal or abstaining to be listed.

However, the lower courts ruled that the law only requires citizens to assume the vote was unanimous if the minutes do not state otherwise.

“There is so much at stake in this case: transparency in government, the meaning of our Sunshine laws, whether minutes are required to be accurate, representative democracy, and the ability of agencies in the State of Georgia to take secret votes,” the Petition for Certiorari stated.

“These issues are certainly of great importance to the Georgia citizens; they are fundamental to the integrity of our democracy,” the Petition stated.

“This is an extremely important case in terms of its implications for the Georgia Open Meetings Act (OCGA 50-14-1 through 6).  As will be explained below, according to the Court of Appeals ruling, any agency within Georgia can take a secret vote.  Furthermore, Georgia citizens are required to assume a vote is unanimous even when the vote is not unanimous.  According to this ruling, the Georgia Open Meetings Act not only permits–but requires–false, deceptive records, where elected officials can hide their true vote from the public, because the public must assume each elected official voted with the majority,” the Petition states.

“According to this ruling, every agency within the State of Georgia could start taking all of their votes as non-roll call votes and thereby deprive the public of the knowledge of all true vote break-downs,” the Petition states.

“In this case, certain elected officials were trying to conceal from the public a vote because it was controversial,” the Petition states.

“But if all Georgia agencies were to understand the implication of this ruling, we could end up with no meaningful voting record for any elected officials.  How then can Georgia citizens hold their elected officials accountable for their public policy decisions?  For their votes?” the Petition states.

“In this case, Appellant had sought the information to include it in a candidate scorecard.  At the heart of this ruling is whether we actually have representative government in the State of Georgia: How can we have representative government if the public cannot know how their elected officials voted?” the Petition stated.

“This ruling also harms any elected officials who are proud of their dissenting vote.  The official record of their vote would be false and deceptive to the citizens.  They could be held responsible for going along with the majority on a policy that the voters may dislike, even if they courageously dissented,” the Petition stated.

“This ruling also harms any elected officials who abstained from voting for particular reason, such as a recusal due to conflict of interest issues.  The record would not show that they abstained, leaving them open to accusations of unethical behavior,”the Petition stated.

“One possible outcome of this ruling is the proliferation of non-official minutes.  Independent organizations would have to compile their own un-official records to contradict, and correct for, the deceptive language of the official minutes.  By rendering the minutes themselves to be deceptive, this court ruling defeats the very purpose of keeping official records,” the Petition stated.

While the present writer continues to argue that the law in its current form prohibits secret votes, in response to the two previous rulings, the Georgia Attorney General, Sam Olens, has already worked with Republicans in the legislature to introduce legislation to amend the Georgia Open Meetings Act to more explicitly ban secret votes in the future.

Olens’s proposal would eliminate any distinction between the vote recording requirements for roll call votes and non-roll call votes.

Currently, the present writer also has a second lawsuit filed in May of this year against the City of Atlanta in Fulton County Superior Court before Judge Jerry Baxter, also related to Open Meetings Act violations.

In that case, the present writer challenges the Council’s practice of holding closed-door Committee Briefings.  While the City has filed an answer, they declined to file a Motion to Dismiss.  Therefore, that case is progressing now through the discovery process, and there is a status and scheduling hearing coming up before Judge Baxter on August 10, 2011.

The Atlanta Journal-Constitution newspaper reported that Attorney General Olens’s Office is reviewing that case to decide whether to join as a party.

(END / 2011)