Georgia high court rules city council must record votes

The Georgia Supreme Court ruled yesterday that state public bodies must record in public meeting minutes the names of those members who voted against or abstained from voting on a measure, even where the vote is not taken by a roll call.

A 4-3 majority of the court rejected a reading of the Georgia open meetings act – proposed by the City of Atlanta, the municipal clerk, and the president and seven members of the city council – that the outcome of a non-roll call vote may be presumed to have been unanimous unless the agency specifically chooses to record such names. Atlanta Progressive News editor Matthew Cardinale successfully argued that such information must be recorded.

According to Cardinale, roll call votes at Atlanta city council meetings are conducted by electronic means – that is, the members press a button to indicate their vote for or against a proposal, and their names and respective votes appear on a screen. The state’s open meetings law explicitly states that “[i]n the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded.”

However, Cardinale sought a breakdown of votes from a 2010 city council meeting – related to a proposed amendment to the rules governing public comment periods at council meetings – that was taken by a show of hands, rather than a roll-call vote. The open meetings law states that “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.”

“I think to 99 percent of reasonable people in the world, that means you have to list those who voted against or abstained,” said Cardinale.

However, Cardinale only received minutes that said “[a]fter an extensive discussion it was determined that the membership was not in support of amending the existing law.” The council refused to specify how individual members had voted, and when Cardinale then asked individual council members about how they had voted, six of the 15 refused to disclose this information.

He then sued, alleging violations of the open meetings act.

The Supreme Court reversed the lower court’s ruling in favor of the city and its officials’ interpretation of the law. It held that – in light of the legislative intent of the open meetings law to increase government transparency – it should be interpreted to require public bodies to list the names of those who vote against a proposal or abstain from voting, except where the vote is unanimous.

To rule otherwise “would potentially deny non-attending members of the public access to information available to those who attended a meeting,” said the court. “Such a result conflicts with the Act’s goal of greater governmental transparency.”

According to the opinion, the proposed amendment to the public comment period was defeated by a seven-to-eight vote at the 2010 meeting.

“You had the people who went to the open meeting and could see the seven and eight,” Cardinale said, “but if you read the minutes you would have to assume it was unanimous. It was a fraud upon the people.”

“Construing [the law] to allow for a presumption that is contrary to fact would generate confusion (and possibly mistrust) rather than public confidence and transparency in government,” said the court.

The court did, however, reject Cardinale’s attempt to impose criminal sanctions on the defendants because he was a private citizen, and therefore could not initiate criminal prosecutions. He plans to ask the state attorney general to pursue criminal penalties against the city officials.

Cardinale represented himself in the case, and says he hopes others will be encouraged from his case to file lawsuits – even without an attorney – for violations of the state’s open meetings act.

“The days of secret votes in the state of Georgia are officially over,” he said.

In a press release, Georgia attorney general Sam Olens – who submitted a friend-of-the-court brief in the case – said that “[t]his ruling sets a strong precedent that government should err on the side of openness.”

Calls to the city of Atlanta’s office of communications and the city council’s department of law were not returned.