A previous article, Leechwatching Tools, introduced many laws and other resources that a citizen can use to keep their local government in line. While I am not an attorney, and none of what you read on this site is legal advice, the applicable laws, both state and federal, are clear enough for anyone to read them and know what they mean. For Georgia cities and counties, the Open Meetings Act is the first of these leechwatching tools we’ll discuss. Formally known as O.C.G.A. §50-14-1, et. seq. a text description of that Georgia law can be found at this link from the Georgia Attorney General’s site. Audrey, a former councilwoman who attended the state-mandated elected officials training, also provides additional content from that training.
As is defined in the law itself, the word agency is used to mean all number of public bodies, including county commissions and city councils. For those of you interested in watching various public authorities, such as housing or health authorities, these rules apply also. For simplicity, we will use the word agency in this article also.
The law applies to meetings, with very few specifically defined exceptions, of a quorum of officials in which any official business or policy is discussed, whether or not it is voted on. A quorum is defined as the number of that agency’s officials which is required to legally transact business. This number, typically a majority, will be defined in the charter of the body in question.
Some of the allowed and reasonable exceptions to this prohibition include the following:
• Inspecting physical facilities or property under the jurisdiction of the agency. No other official business is to be discussed or any official action taken.
• Training or seminars. Official business may be presented or discussed in the context of the meetings, but no official action may be taken.
• Official meetings with executive or legislative officials (state or federal) at the offices of those officials. Official business may be presented or discussed in these meetings, but no official action may be taken.
• Attendance at a social or public event. During this attendance, official business may not be presented or discussed, nor may any official action may be taken.
• Traveling together to any of the above. During this travel, official business may not be presented or discussed, nor may any official action may be taken.
This means that if three members of a five-person agency get together around the pool and talk shop, without such a meeting being advertised to the public or the public allowed to attend, then that is an illegal meeting in violation of Georgia law. Audrey reports that at the elected officials training, attendees were specifically cautioned to avoid even congregating at parades or other events, and that even riding to the training together would be a violation if business were to be discussed enroute (1).
There is also a specific exception for what is known as an executive session, which is a legally closed meeting. These meetings may only be held for the following specific reasonable purposes, and then only as special sessions within a normal open meeting:
• Meeting with legal counsel for any reason from a long list of potential or pending civil or judicial actions.
• Confidential tax matters.
• Discussion for settlement of any of the above.
• Discussions, negotiations or appraisal for sale or purchase of property or real estate. A decision for any of these may be reached in a closed executive session, but any such vote is not binding until the terms and parties are made public, and a public vote taken.
• Hiring or disciplinary action of an employee or official, including interviews of same, except that receipt of evidence in such cases must be public, as well as the vote on the final disposition of any such issue.
• Meetings of responsible committees for public retirement fund investment strategies.
Even these lawfully closed executive sessions have limitations, in that their agenda must be made public, the justification for closure be made part of the minutes, and a vote taken to justify closure within a public meeting. In addition, either the responsible executive, or in some cases each attending member, must sign an official, sworn, and notarized affidavit that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law, and identify the specific relevant exception. As you can see, executive sessions have a very high standard of required compliance.
These narrowly-defined exceptions for meetings of public officials and discussion of business, while numerous, are entirely reasonable. Outside of these exceptions, a meeting must be public in order to be lawful. Once a meeting is public, video and audio recording must be allowed by anyone, not just by members of the media, for any reason, or no reason at all, and no permission is required for such recording.
Set up a camera in a public meeting, and you will notice an immediate improvement in the behavior of all members present, unless an official has decided to violate the law by attempting to prohibit such filming, in which case they are guilty of a misdemeanor, as defined below.
Further, a public meeting must meet several requirements as well:
• Except for emergency meetings, discussed later, the meeting must be regularly scheduled, or must be announced to the public in advance. Special meetings must be announced at least 24 hours in advance, via the official newspaper of record, or posted notice at the regular place of meeting.
• An emergency meeting may be held with less than 24 hours notice (2).
• An agenda should be published prior to the meeting, but other matters may be discussed and acted on if the agency deems appropriate.
• An agency, at its discretion, may allow public comments, but is not required to do so, nor is it required to respond to any comments made or questions asked (3).
• Minutes must be taken and made available to the public no later than the next regularly scheduled meeting. However, a summary of the minutes should be made available to the public before that time upon request (4).
• In an emergency, members can attend a meeting by teleconference. Non-emergency use of teleconferencing is allowed, for any member, not more than twice per calendar year.
Executive sessions also require minutes, but these are not to be made public. These minutes can be reviewed by a judge in an official proceeding, however.
The law also provides specific sanctions for non-compliance. The first of these is that any vote taken in a non-public meeting can be declared void. However, any such action must be contested generally within 90 days, although some extensions to this time are authorized (5). A successful action entitles the complainant to recovery of reasonable attorney’s fees and litigation costs.
For criminal sanctions, the individual participants in a violation can be convicted of a misdemeanor, with a fine for the first offense of $1000, and fines for subsequent offenses of $2500 within a 12 month period. Good faith is a defense in these criminal cases (6). An official which provides information in accordance with this law is also assumed to have exercised good faith even if the disclosure is deemed harmful by a third party.
In this article, we have covered, with a broad brush, the requirements for open meetings for county and city governments. Armed with this knowledge, and a printout of the law itself, you will be well-prepared to demand that your officials conduct public business, meaning your business as your servants, in accordance with state law. In a future article, we will discuss more requirements placed on them by state law, including records which must be made public and the requirements by which this disclosure must be made (7).
(1) As a concrete example of these illegal incidental meetings, Manassas Councilwoman Tonya Edwards lives next to her son, Councilman Shaun Edwards. Shaun’s daughter often plays with newly-elected Councilwoman Emily Callaway’s children. If the three of them were to discuss any public business at one of these playdates, then they would have conducted an illegal meeting, even though the same conversation prior to Emily’s taking office would not have been illegal. A similar situation would arise if Tonya and Shaun met with Councilman Michael Godbee to examine the water system, and then discussed other public business, even business related to the water system itself, such as what to do with some of the excess funds.
Are these examples technicalities? Yes, but these laws exist for a reason, so that public officials do not act as private cabals for their own interests at public expense. If the members of the Manassas council cannot comply with state law, then one or more of them should resign their positions. Or they should simply admit that Manassas is too small to be able to comply with state law. Make no mistake, however, our complaints with Manassas has very little to do with such technicalities; attempting to have citizens arrested on bogus charges, bypassing the budgetary process, and other deliberate evasions and intimidation are far more serious and deliberate offenses which have our attention. These other technicalities are merely icing on a festering cake of willful misconduct.
In addition, any such seemingly innocuous clandestine meetings, if used to discuss any matter in which official misconduct is planned or concealed, including intimidation of citizens or what state law defines as tyrannical partiality, and which occur on two or more occasions, may subject all participants to federal RICO charges in addition to the state offenses. As a result, these relatively minor state offenses can kick open the door to federal charges. Martha Stewart went to prison for less, and she wasn’t shown to have committed an initial violation, merely of having impeded an investigation.
(2) This provision is ripe for abuse, but such abuse would definitely attract the attention of concerned citizens that more is going on than the officials wish to be made public.
(3) Again, this can be abused by the agency, but to do so would certainly attract more detailed attention by an alert citizen.
(4) We will address this provision as it relates to other state law in a future article.
(5) This is not a major sanction, as the remedy would typically be to take a public vote and then pass the issue anyway.
(6) The use of good faith as a defense may explain why Manassas officials have avoided attending the state mandated training. The level of ire displayed by some officials when Audrey presented her report on the legal requirements in March of 2016 was telling. More on this incident in a future article.
(7) Including what officials might believe constitutes private emails among themselves, whether or not they are using public resources.