Atlanta Defending Secret Votes in Court, Again (UPDATE 1)
(APN) ATLANTA – Once again, the City of Atlanta is using taxpayer dollars to defend secret, unrecorded votes in Court, against the public interest.
Atlanta Progressive News could not have imagined we would be here again following the ruling of the Supreme Court of Georgia against the City of Atlanta in 2012; and yet, here we are.
Outside counsel hired by the City of Atlanta are defending in Court the City’s continued publication of official meeting minutes for several meetings of the Atlanta City Council’s Community Development/Human Services Committee that fail to list the movers, seconders, yeas, nays, abstainers, and absences for several votes.
Previously, the City of Atlanta spent three years, from 2010 to 2013, defending the secret vote of 2010 conducted by then-Councilwoman Felicia Moore (District 9) while Councilmembers were having lunch at the Georgia Aquarium during a Council Retreat.
In 2010, APN’s News Editor sued the City of Atlanta without an attorney, all the way up to the Supreme Court of Georgia, which ruled in Feb. 2012 that secret votes are unlawful in Georgia under the Georgia Open Meetings Act.
In 2012, the Atlanta City Council amended the 2010 Council Retreat minutes to list the seven yeas and eight nays. The case was settled in 2013.
However, the City Council and its Committees have continued to struggle with adhering to the minimum requirements of the Georgia Open Meetings Act.
On March 19, 2018, the Atlanta City Council unanimously, in a vote of fifteen to zero, adopted City of Atlanta Ordinance 18-O-1150, an ordinance drafted by APN’s News Editor to address the vote recording issues in Full Council. The Committee on Council introduced the paper as a committee paper.
The ordinance, City of Atlanta Ordinance 18-O-1150, amends City of Atlanta Code of Ordinances, Part II, Sec. 2-36 (“Council President”) to require the Council President or presiding officer to call all votes in a manner that permits the Municipal Clerk to record the yeas, nays, abstainers, and absences.
The absences are critical because Councilmembers are often not in their seats and thus not participating in every vote.
Since then, Council President Moore; and Municipal Clerk Foris Webb, III, and Rhonda Dauphin Johnson before him, have all done an excellent job making sure the Full Council Meeting minutes are complete for each vote.
However, it has now become apparent that some of the City Council Committees are having issues with recording votes. But instead of adopting similar legislation for Committees–as has been drafted and provided to Councilmembers–they have decided to defend their non-transparent practices.
Instead of listing the movers, seconders, yeas, nays, abstainers, or absences, certain votes in the following minutes merely say, “ADOPTED” or “APPROVED”.
Jan. 14, 2020 (vote to adopt the agenda, and the vote to adopt the minutes.)
Jan. 28, 2020 (vote to adopt the agenda, and the vote to adopt the minutes.)
Feb. 11, 2020 (vote to adopt the agenda, and the vote to adopt the minutes.)
Feb. 25, 2020 (vote to adopt the agenda).
March 10, 2020 (vote to adopt the agenda, and the vote to adopt the minutes.)
On June 04, 2021, Atlanta Progressive News asked Councilmembers to amend the minutes; however, they failed to do so.
On August 27, 2021, APN sued the City of Atlanta in Fulton County Superior Court, where the case, 2021CV353735, is before Fulton County Superior Court Judge Kelly Lee Ellerbe.
It is not clear why the Bondurant, Mixson, and Elmore law firm is arguing on behalf of the City of Atlanta that unrecorded votes are acceptable, when even the City of Atlanta itself has taken the opposite position in 2018.
That is, in 2018, when APN’s News Editor first approached the Committee on Council regarding the need for legislation to address vote-recording issues in Full Council, the Municipal Clerk, Law Department, and Council agreed.
The now-late Councilman Ivory Lee Young, Jr. (District 3) asked the Law Department to opine. Kristen Denius, now Transparency Officer for the City of Atlanta, responded on behalf of the Law Department.
“I actually agree with Mr. Cardinale,” Denius said, turning around and waving at him, during her public remarks.
“Good morning my name is Kristen Denius, I’m with the City Atlanta, City of Atlanta Law Department… The Open Meetings Act actually does require that all votes be recorded, um, with who voted how; and so, if someone’s not present, that probably needs, that needs to be recorded as well,” Denius said,.
“So, I think we can probably, um–I actually agree with Mr. Cardinale–I think we, we can proactively look at Council rules and the Open Meetings Act (pauses to turn around and wave at Cardinale), and, um, figure out a way to avoid having this problem,” Denius said.
Then-Municipal Clerk Johnson said that when former Council President Ceasar Mitchell called a vote by show of hands, that he did it too quickly to permit her to record who was, and was not, in their seats to participate in the vote.
The Council adopted the following Whereas clauses in the 2018 ordinance:
“WHEREAS, it is the desire of the City of Atlanta to take all necessary steps to provide the public with full transparency regarding the details of each vote taken by the City Council, including all yeas, nays, abstentions, and absences; and
“WHEREAS, the Municipal Clerk has recently expressed to the Committee on Council some challenges in recording the full vote details, when non-roll call votes are quickly taken by the Council President, particularly in determining which Councilmembers did or did not participate in the vote, when one or more Councilmembers are out of their seats; and
“WHEREAS, the Georgia Open Meetings Act (O.C.G.A 50-14-1, et seq.) requires that all votes by city councils and other “agencies” be recorded in a manner that allows the public to determine how each Council Member voted, as clarified in Cardinale v. City of Atlanta (290 Ga. 521, 2012).”
However, now today, the City takes the opposite position through outside counsel.
The City, in a Motion to Dismiss filed on Oct. 27, 2021, argues that the Supreme Court of Georgia’s 2012 decision does not apply to votes unless they are alleged to be non-unanimous.
However, the Georgia Open Meetings Act was amended, in part due to APN’s participation in Georgia House Sub-Committee hearings, to read: “The name of each person voting for or against a proposal shall be recorded.”
Subsequent language in the Act is the same that was interpreted in Cardinale v. City of Atlanta (290 Ga. 521, 2012) to mean that nays and abstainers, if any, shall be recorded.
The City ignores the fact that by failing to list the absences, the City is deceptively causing the public to presume all Councilmembers present for the meeting necessarily participated in each vote.
In addition, the City ignores the fact that the minutes also omit the movers and seconders, which since 2012 have been specifically required by the Georgia Open Meeting Act to be listed.
APN filed its Response to the City’s Motion to Dismiss on November 28, 2021.
(END / Copyright Atlanta Progressive News / 2021)
UPDATE 1 and CORRECTION: A previous version of this article stated that the City is now arguing that the 2012 Supreme Court decision did not apply to non-unanimous votes. It has been corrected to read that they are arguing it did not apply unless it is alleged the vote is unanimous.