Court of Appeals Overturns Ellerbe, Records Act Civil Penalties Available
(APN) ATLANTA – Today, Tuesday, February 15, 2022, the Court of Appeals of Georgia ruled in favor of APN’s News Editor and overturned Fulton County Superior Court Judge Kelly Lee Ellerbe, finding that all Georgians–not just the Attorney General–have the right to seek civil penalties under the Georgia Open Records Act against government officials who violate the terms of the Act.
The Case Numbers are A21A1718 and A21A1719.
“We therefore conclude that Cardinale, a private citizen, has a cause of action to seek a civil penalty under OCGA § 50-18-74 (a) and that the trial court erred in ruling otherwise,” the Court of Appeals of Georgia wrote.
To date, since June 2020, City of Atlanta taxpayers have spent over 431,000 dollars fighting against transparency and the public interest, in litigation with Atlanta Progressive News and with APN’s News Editor. The City recently revealed the latest spending numbers on Feb. 11, 2022, in response to a records request.
The majority of the taxpayer dollars have accrued to the Bondurant, Mixson, & Elmore firm, where Robert Ashe, Michael Brandon Jones, and Matthew Sellers have represented the City of Atlanta and various Atlanta officials. (Jones has since left for another firm.)
In 2012, the Georgia General Assembly passed HB 397, amending both the Georgia Open Meetings Act and the Georgia Open Records Act, to, among other things, include civil penalties.
In 2020, the Supreme Court of Georgia ruled, in Williams v. DeKalb, that the civil penalty provision of the Georgia Open Meetings Act allowed any person to seek a civil penalty against any government agency official, up to one thousand dollars, for negligently violating the Act.
Nearly similar civil penalty language appears in the Georgia Open Records Act.
In Matthew Charles Cardinale v. Michael Brandon Jones (in his personal capacity) and Antonio Brown (in his personal capacity), filed on Dec. 01, 2020, APN’s News Editor complained about the failure of then-Councilman Brown to respond to a Feb. 08, 2020 records request; and about the partial non-responsiveness, deceptiveness, and evasiveness of Jones’s response to several Nov. 20, 2020 records requests.
On March 12, 2021, Judge Ellerbe ruled that APN’s News Editor was not entitled to seek a civil penalty under the Georgia Open Records Act because such penalties could only be sought by the Attorney General.
Judge Ellerbe ruled that there was a slight difference between the text of the two Acts. However, the Court of Appeals disagreed.
“[J]ust as in Williams regarding the Open Meetings Act, we see nothing in OCGA § 50-18-73 (a)’s grant of authority that would mean that only the Attorney General has standing to bring an action to obtain a civil penalty,” the Court of Appeals of Georgia ruled.
“[N]or do we see anything else in the statute that would potentially foreclose private plaintiffs from seeking a civil penalty for a violation of the Act,” the Court of Appeals of Georgia ruled.
“Considering that both the Open Records Act and the Open Meetings Act have the broad purpose to encourage public disclosure of governmental activity, we are compelled to conclude that this minor textual difference between the statutes is a distinction without any meaningful difference,” the Court of Appeals of Georgia ruled.
As a result of the ruling, it is now clear that any person, not only the Attorney General, may seek a civil penalty under either the Georgia Open Meetings Act or the Georgia Open Records Act.
This is the second major victory for transparency and open government at the appellate level secured for the people of Georgia by Atlanta Progressive News.
In today’s ruling, the Court of Appeals of Georgia remanded the case against Antonio Brown and Michael Brandon Jones back to Fulton County Superior Court Judge Ellerbe.
The open records claims against now-former Councilman Brown are reinstated.
The ruling directs Judge Ellerbe to consider whether the complaint against Michael Brandon Jones alleges a violation of the Georgia Open Records Act. Ellerbe has already ruled that the complaint contains “colorable” arguments of fact and law regarding Mr. Jones’s compliance with the Act.
In a second, related appeal, Cardinale v. Tim Keane (in his personal capacity), the Court of Appeals agreed that APN’s News Editor had the right to seek a civil penalty against now-former Department of Planning Commissioner Tim Keane for failing to respond to several records requests.
However, the Court of Appeals found that Ellerbe did not err in using her discretion to, without explanation, decline to issue a civil penalty against Mr. Keane. The Court of Appeals of Georgia ruled that no explanation is required.
ELLERBE REFUSES TO RECUSE
In two related cases currently pending before Judge Ellerbe, APN’s News Editor and APN have both filed motions seeking for Ellerbe to recuse herself.
In a Motion to Recuse filed on January 10, 2022, APN’s News Editor attested to conducting a review of APN’s Constant Contact database and learning that Judge Ellerbe has been reading APN’s e-newsletters regarding the court cases before her, collecting the e-newsletters to her personal email account, and routinely going back to research and review them several times.
APN added Judge Ellerbe, then-Kelly Amanda Lee, to the APN’s email list back in 2010 before she became a judge.
Because the APN e-newsletters often contain facts and information about the open meetings and open records litigation not on the official record, the Motion to Recuse argues that Judge Ellerbe’s collection of e-newsletters have become a parallel, second, unofficial record in the case.
Georgia Code of Judicial Conduct Rule 2.9(C) provides that: “Judges shall not investigate facts in a pending proceeding or impending matter independently, and in making adjudicative decisions shall consider only the evidence presented and any facts that may properly be judicially noticed. The facts a judge shall not investigate include those derived from personal observations or media, including printed publications, computer retrievable electronic data, or internet and social network communications.”
Georgia Code of Judicial Conduct Rule 2.11 provides that: “(A) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning an impending matter or a pending proceeding.”
In a Feb. 08, 2022 ruling, Ellerbe refused to recuse herself from one of the pending cases, going so far as to call APN’s News Editor a “gamesman” in the ruling.
Judge Ellerbe ruled that if APN and APN’s News Editor did not know that Judge Ellerbe has been reading APN’s e-newsletters regarding the court cases before her, collecting the e-newsletters to her personal email account, and routinely going back to research and review them several times, then APN and APN’s News Editor should have known it.
The motion to recuse in the second pending case is still pending.
Judge Ellerbe has chosen to continue reading APN’s e-newsletters, even after denying the Motion for Recusal, which means that she might be reading about herself reading after herself right now.
Once the pending cases reach the Court of Appeals of Georgia, APN and APN’s News Editor will ask the Court of Appeals to review whether Judge Ellerbe erred by not recusing herself from the pending cases, in which the Motions for Recusal have argued that Ellerbe has manifested a clear bias.
Another forthcoming appeal to the Court of Appeals of Georgia will challenge Judge Ellerbe’s recent ruling that the official minutes of agency meetings may falsely imply that agency members participated in unanimous votes even when they were away from their seats.
(END / Copyright Atlanta Progressive News / 2022)