Georgia Supreme Court Seeks Olens's Opinion on Atlanta's Secret Vote

Georgia Supreme Court Seeks Olens's Opinion on Atlanta's Secret Vote

As previously covered by APN, at issue is whether the Open Meetings Act requires agencies to list in the minutes who voted against a proposal or abstained in the case of a non-roll call vote.

Councilwoman Felicia Moore (District 9) conducted a vote at lunch at the February 2010 Council Retreat over whether to limit public comment at Committee Meetings, but the minutes do not state who voted which way.

OCGA 50-14-1(e)(2) states that in the case of a non-roll call vote, "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."

Lower courts, including Fulton County Superior Court Judge Christopher Brasher and a Court of Appeals panel, ruled that this section does not require the listing of the names of those voting nay or abstaining, but merely requires citizens to presume the vote is unanimous if the minutes do not list any names.

APN's Editor has argued that the Court should look at the intent of the law, that is, open and transparent government, when interpreting the clause.

Case law states that statutes should be construed in terms of their plain language, unless such a construction leads to an absurd or irrational result.

APN's Editor has argued that it is an absurd or irrational result, that citizens should have to assume a vote is unanimous when the vote is split.

In a recent Appellant's Brief filed by the City of Atlanta on August 22, 2011, the City of Atlanta argued that the vote was not a secret vote because it was taken at an open meeting.

"In an interpretation of the Act allows for the presumption of unanimity in non roll-call votes, where the vote may not have actually been unanimous, would not have the effect of allowing closed-door meetings or secret votes.  This is illustrated by the fact that in this case, the vote at issue was taken in a meeting which was open to the public during which anyone could have witnessed the details of how the City Council voted," the City states in its Brief.

However, this only highlights the absurdity of their interpretation of the statute: If a citizen attends the lunch at the Retreat, they can know who the seven yeas and eight nays are; however, if a citizen reads the minutes, by law they "shall" assume the vote was unanimous.  So, who is right?  The effects of the City of Atlanta's interpretation is to create a Tower of Babel where a fraction of the City believes, under legal mandate, that all fifteen Council Members voted nay, and where another fraction of the City, who witnessed the vote, believes the vote was seven to eight.

The Attorney General's office has stressed in its statements about the case that there clearly is some ambiguity in the way the current statute is written; that case law says that the Open Meetings Act is remedial in nature and should be broadly construed; and that when there are doubts of interpretation regarding a statute, that they should be resolved in favor of openness.