Supreme Court Bans Secret Votes across State of Georgia



(APN) ATLANTA — On Monday, February 06, 2012, the Supreme Court of Georgia issued its ruling in the case Cardinale v. City of Atlanta et al., ruling that the Georgia Open Meetings Act indeed requires the listing of the names of those voting against a proposal or abstaining, even in the case of a non-roll-call vote.The present writer filed a pro se lawsuit against the City of Atlanta, Council President Ceasar Mitchell, former Committee on Council (COC) Chairwoman Felicia Moore, Municipal Clerk Rhonda Dauphin Johnson, and the “Secret Six.”  The Secret Six were Councilmembers who refused to disclose how they voted at a February 2010 Council Retreat on limiting public comment at Committee Meetings: Carla Smith (District 1), Ivory Young (District 3), Alex Wan (District 6), Howard Shook (District 7), Joyce Sheperd (District 12), and Lamar Willis (Post 3-at-large).

Moore originally claimed the vote was not actually a vote, and was thus unrecorded in the minutes, because they were voting on whether to establish a priority for the COC that would be to draft legislation to amend rules regarding public comment at Committee meetings.  However, APN’s Editor presented Moore with OCGA 50-14-1(e)(2), which states that votes must be listed not only on all legislation but also on “other proposals.”

Moore then requested an opinion from the Law Department and Kristen Denius issued a memo abandoning the City’s original argument that it was not a vote, but now stating that even if it was a vote, it was a non-roll call vote.  Denius argued the vote details only had to be listed in the case of a roll call vote.

Councilman Wan specifically requested that the taxpayers pick up the tab for his legal endeavors, when he wrote the Law Department in a May 11, 2010, email.

“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,” Wan asked Peter Andrews, a city attorney.

APN’s Editor filed the case on May 27, 2010.  Fulton County Superior Court Judge Christopher Brasher had granted the City’s Motion to Dismiss for failure to state a claim on August 24, 2010.  Brasher ruled that OCGA 50-14-1(e)(2)–which states that in the case of a non-roll-call vote, the vote shall be presumed unanimous unless the minutes reflect the names of those voting against the proposal or abstaining–only requires a presumption of unanimity if no names are listed, even if the vote was not in fact unanimous.

Against all advice, APN’s Editor appealed.  On February 10, 2011, the Court of Appeals affirmed Brasher’s ruling.

Against even more advice, APN’s Editor appealed again.  On July 11, 2011, the Supreme Court of Georgia granted a rare review of the lower court’s ruling.  On October 04, 2011, the Court heard oral arguments, where APN’s Editor and city attorney Amber Robinson argued before the Court.

The Supreme Court’s ruling–because it interprets a section of the Open Meetings Act, setting case law–impacts all City Councils, County Commissions, state agencies, and all other agencies covered under the Act; therefore, the days of secret votes across the entire State of Georgia are now officially over.

The Editorial Board of the Savannah Morning News praised the ruling in an editorial.  “IT’S HEARTENING that the Georgia Supreme Court believes that elected officials work for the people, not the other way around,” they wrote.

The Morning News had covered a secret vote of the Effingham County Commission in January 2012, and pressured the Commissioners there to reveal their vote.  Unlike Atlanta, Effingham County quickly reversed course when questioned.

The Editorial Board of the Albany Herald also praised the ruling, noting that they have for years been dealing with the same problem of secret votes.

“Over the years, there have been numerous occasions at government meetings when it has been nearly impossible for reporters to tell who voted which way on issues, especially when those elected officials were dealing with something politically risky,” the Herald wrote.

“There have been times when even the recording clerk had no idea which way a particular official voted, and when officials who timidly offered their votes to escape attention have called and argued that their votes were listed incorrectly in stories,” the Herald wrote.

Sam Olens, Attorney General of Georgia, had filed an amicus brief on September 28, 2011, that while technically neutral, supported the position argued by APN’s Editor.

“By ruling in favor of Mr. Cardinale, the Georgia Supreme Court has upheld the legislative intent of Georgia’s sunshine laws, which is to protect and promote citizens’ access to their government, not to serve as a shield from accountability,” Olens wrote .  “This ruling set a strong precedent that government should err on the side of openness.”

Attorney Dan Grossman, who was one of the lead attorneys in a federal lawsuit over the controversial 2009 raid of the Atlanta Eagle bar, criticized the City’s pattern of stubborn defensiveness and waste of taxpayer dollars on needless litigation.

“Perhaps the real question is not who was right from a legal perspective, but why the city chose to defend its position in the first place?” Grossman wrote in an open letter to colleagues.

“Although I personally agree with the Supreme Court’s decision… why did the city take that position in the first place?  Why did the city spend public dollars fighting for the right to hide a city council vote from members of the public?  Matthew Cardinale gave the city many opportunities to do the right thing voluntarily; instead, the city chose to spend public money defending a position that was never in the public’s interest,” Grossman wrote.

“When approached by Matthew Cardinale the city should have have asked itself, not what CAN we do, but what SHOULD we do.  The city should have said, ‘Maybe your view of the law is correct and maybe it isn’t, but we can all agree that it is better for the public to know how their elected officials vote and so we will make that information public.’  Instead, the city chose to spent tax dollars all the way up to the Supreme Court of Georgia to keep the result of a city council vote secret,” Grossman wrote.

“Sadly, this is sometimes a typical pattern for the city.  After the city’s aggressive and expensive defense of the Kathryn Johnston lawsuit, the Eagle lawsuit, the Matthew Cardinale’s lawsuit, and many others, it is obvious that sometimes the city’s policy is simply to defend whenever it is challenged, without thoughtful reflection about whether such defense is in the public interest or not.  It is time for the city to begin looking at challenges not defensively, but in a spirit of what is best for the public.  When faced with someone like Matthew Cardinale, the city should abandon its traditional knee-jerk ‘defend-at-all-costs’ response and begin saying, ‘Gosh you’re right.  Thanks for pointing it out,’” Grossman wrote.

APN held a press conference at 1030am on the steps of City Hall following the Court’s announcement Monday morning.  Those standing in support of the decision included APN’s Editor; Gloria Tatum, Senior Staff Writer, who sued the Georgia Public Service Commission over closed meetings thirty years ago; Cheryl Rosenblum, Staff Writer; Barbara Payne, Executive Director of Fulton County Taxpayers Foundation; Dwanda Farmer, former candidate for City Council and Board of Education; Todd Rehm, Republican consultant and blogger for Peach Pundit, Ben Howard, senior advocate and City Council activist; Ron Shakir, City Council activist; and Minnie Ruffin, peace activist.

“As an initial matter, we disagree with appellees’ [the City’s] argument that the Court need look no further than the plain statutory language to reject Cardinale’s contention that recording the names of those voting against a proposal or abstaining in the case of a non-roll-call vote is mandatory,” Chief Justice Carol Hunstein wrote in her opinion.

Justices P. Harris Hines, David Nahmias, and Hugh Thompson concurred, while Justices Robert Benham, George Carley, and Harold Melton dissented, in the 4-3 ruling.

“Appellees maintain, and the dissent agrees, that the statute clearly provides that the result of a non-unanimous, non-roll-call vote must be presumed unanimous unless the agency chooses to record the names of those voting against the proposal or abstaining.  What appellees and the dissent ignore is that OCGA § 50-14-1 (e) (2) nowhere explains how the names of those voting
against a proposal or abstaining in the case of a non-roll-call vote will come to appear in the minutes. The statute is simply silent regarding whether listing these names is optional or mandatory, and as such, there is no merit to the contention that the construction of OCGA § 50-14-1 (e) (2) advocated by appellees and adopted by the dissent follows from the plain terms of the statute,” Hunstein wrote.

“To resolve the issue of statutory construction presented by this appeal, we begin with the cardinal rule that requires us to “ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose,” Hunstein wrote.

“As we have explained, the Act ‘was enacted in the public interest to protect the public – both individuals and the public generally – from ‘closed door’ politics and the potential abuse of individuals and the misuse of power such policies entail….’ The Act also reflects a policy ‘that the public’s business must be open, not only to protect against potential abuse, but also to maintain the public’s confidence in its officials…’ While the Act provides for public access to agency meetings, it also fosters openness by, among other things, requiring agencies to generate meeting minutes that are open to public inspection so that members of the public unable to attend a meeting nonetheless may learn what occurred,” Hunstein wrote.

“We hold that in view of the General Assembly’s intent, the correct reading of OCGA § 50-14-1 (e) (2), and the one that is most natural and reasonable, is that, having first mandated that meeting minutes include a “record of all votes,” the subsection then sets forth alternative requirements for accurately recording individuals’ votes in the case of both roll-call and non-roll-call votes. In the case of a non-roll-call vote, the minutes must list the names of those voting against a proposal or abstaining. If no such names are listed, the public may correctly presume that the vote was unanimous. If such names are listed, a member of the public need only look at the list of voting officials in attendance at the meeting to determine who voted for a proposal,” Hunstein wrote.

“To adopt a contrary holding that agencies possess discretion to decline to record the names of those voting against a proposal or abstaining in the case of a non-roll-call vote would potentially deny non-attending members of the public access to information available to those who attended a meeting. Such a result conflicts with the Act’s goal of greater governmental transparency,” she wrote.

“Further, under appellees’ proposed construction, OCGA § 50-14-1 (e) (2) requires a presumption that a non-roll-call vote is unanimous even when it is not if the agency elects not to record the names of those voting against a proposal or abstaining.  Construing the statute to mandate a presumption contrary to fact would produce unreasonable results,” she wrote.

“We cannot conclude that the General Assembly intended to require members of the public to presume, incorrectly, that a non-unanimous, non-roll-call vote was, in fact, unanimous or intended that such a presumption govern even if some members of the public know from attending the meeting or otherwise that the vote was split. Nor can we conclude that the General Assembly, within a statute promoting open government, intended to provide that an agency could decide on an arbitrary basis to avail itself of such a presumption and thereby obscure the nature of individuals’ votes.  Construing OCGA § 50-14-1 (e) (2) to allow for a presumption that is contrary to fact would generate confusion (and possibly mistrust) rather than public confidence and transparency in government,” she wrote.

“Appellees fail to present any argument that the interpretation of OCGA §50-14-1 (e) (2) they propose is consistent with or advances the Act’s goals,” she wrote.

“Instead, like the Court of Appeals, they rely on the rule of statutory construction that courts should avoid an interpretation of a statute that renders some language mere surplusage… Appellees contend that construing OCGA § 50-14-1 (e) (2) to require recording the names of those voting against a proposal or abstaining in the case of a non-roll-call vote, thereby allowing the public to determine how each person voted, would undermine the General Assembly’s intent ‘to require this type of detailed voting information only for roll-call votes’ and negate the
distinction the General Assembly drew between roll-call and non-roll-call votes.  We disagree. A meaningful distinction still exists. While, in both cases, the record will accurately disclose individuals’ votes, in the case of a non-roll-call vote, the administrative burden of recording the vote is reduced, as only the names of those voting against a proposal or abstaining must be listed,” she wrote.

“Finally, our construction of OCGA § 50-14-1 (e) (2), by favoring transparency and accuracy in meeting minutes, is consistent with our repeated admonitions that the Act must be broadly construed to effectuate its remedial purposes,” she wrote.

The ruling did uphold one portion of Brasher’s ruling, however.  This was Brasher’s dismissal of criminal claims, where APN’s Editor sought misdemeanor fines of five hundred dollars each for all of the individual Defendants.

However, the Court did not weigh in on whether the Council Members committed crimes.  The Court merely ruled that APN’s Editor did not have standing as a private citizen to seek criminal charges in a civil case.  However, APN’s Editor does still have the opportunity to fill out a warrant application with Fulton County seeking those criminal remedies through the appropriate criminal process.  And that option is still on the table at this point, as is filing additional claims related to the secret vote of February 2010.

According to the Supreme Court clerk’s office, the case will be remitted to the Court of Appeals and then back down to the trial court, where the trial court proceedings will pick up where they left off.  Specifically, that is in discovery.  The City of Atlanta and the individual Defendants have yet to respond to numerous interrogatories filed before the case was dismissed; their obligation to respond now re-commences.

In a prepared statement, the Council said, “The City is disappointed with the decision and agrees with Justice Melton’s dissent that the City’s interpretation of the plain language of the statute was straightforward and reasonable.  Nevertheless, the City accepts and will abide by the decision of the Supreme Court.  The case will now be returned to Judge Brasher in the Fulton County Superior Court for further litigation on the merits.”




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