Monday, February 6, 2012

Ga. Supreme Court: City violated Open Meetings Act

Posted By on Mon, Feb 6, 2012 at 9:46 AM

Atlanta Progressive News Editor Matthew Cardinale during a press conference this morning on the steps of City Hall. Open government is not a Republican issue or a Democrat issue, he said, it is a citizens issue.
  • Joeff Davis
  • Atlanta Progressive News Editor Matthew Cardinale during a press conference this morning on the steps of City Hall. "Open government is not a Republican issue or a Democrat issue," he said, "it is a citizens issue."

The Georgia Supreme Court today decided 4-3 that the City of Atlanta violated the state's Open Meetings Act when it refused to tell the editor of a local news site how members of the Atlanta City Council voted to change the rules regarding public comment at meetings. Matthew Cardinale, the editor, publisher, fact-checker, typesetter, and bookkeeper of Atlanta Progressive News, sued the city and represented himself in the case.

Here's the rundown from the court's opinion summary (PDF):

The case stems from a vote taken in 2010 during the Atlanta City Council’s annual retreat, which was advertised as a “public meeting” and held at the Georgia Aquarium. On the second day of the retreat, the council voted on whether to amend its rules regarding public comment at its committee meetings. By a show of hands, the Council voted 8-to-7 to maintain the existing rules. The minutes of the meeting do not reflect how the members voted but state: “After an extensive discussion, it was determined that the membership was not in support of amending the existing law.”

After obtaining a copy of the minutes, Matthew Cardinale, editor of Atlanta Progressive News, asked the City for the vote tally to see how individual members voted. When he was unable to get the vote’s breakdown, Cardinale filed a “pro se” complaint (he’s representing himself) in Fulton County Superior Court, claiming that under the Georgia Open Meetings Act, he had a right to the information. At issue in this case is the wording in the Act, which states: “In the case of a roll-call vote, the name of each person voting for or against a proposal
shall be recorded, and in all other cases, it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.”

In his lawsuit, Cardinale sought not only a declaration that the City acted illegally by not disclosing the information, but also that the individual defendants be charged with a misdemeanor crime and charged a $500 fine. The City filed a motion asking the court to dismiss Cardinale’s complaint, arguing that the Act did not require a detailed record of the vote and that Cardinale had failed to state a claim against the City that would entitle him to some relief. The trial court granted the City’s motion to dismiss Cardinale’s lawsuit, and he then appealed to the Georgia Court of Appeals. That court upheld the lower court’s ruling, finding that nothing in the Act “demands detailed information on non-roll-call votes….”

In today’s opinion, the majority disagrees. The Open Meetings 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,” the majority states. “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.”

Given the legislative intent, the correct reading of the statute, “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,” the majority opinion says. “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.”

To adopt the position that it’s within the agency’s discretion to decline to record the names of those voting against a proposal in a non-roll-call vote “conflicts with the Act’s goal of greater governmental transparency.”

It would also lead to “unreasonable results,” the majority states. “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…even if some members of the public know from attending the meeting…that the vote was split.”

As a private citizen, however, Cardinale lacks standing to initiate a criminal prosecution, the majority rules. “As such, the portion of the complaint seeking to impose criminal liability on the individual defendants was properly dismissed.” The majority is joined by Justices Hugh Thompson, P. Harris Hines and David Nahmias.

In the dissent, Justice Harold Melton writes that the plain language of the Open Meetings Act “makes clear that the minutes of an agency meeting need not include the names of persons voting against a proposal or abstaining when the vote is not taken by roll-call.”

In a roll-call vote, “the minutes must include the name of each person voting for or against a proposal,” the dissent says. “However, in all other cases, a presumption exists that an action was approved by unanimous vote unless the minutes reflect otherwise.”

“In short, while an agency is required to include in the minutes the name of each person who voted for or against a proposal in the case of a roll-call vote, in all other cases it has the option of including in the minutes the names of the individuals who voted against a proposal or abstained from voting, but it is not required to do so. There is nothing complicated or unreasonable about this straightforward interpretation of the statute.” Joining the dissent are Presiding Justice George Carley and Justice Robert Benham.

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