ANALYSIS: Olens's Sunshine Revisions a Mixed Bag
- 2-22-2012
(APN) ATLANTA -- Subcommittee Two of the Georgia House Judiciary (Civil) Commmittee, chaired by State Rep. Mike Jacobs (R-DeKalb), will be considering HB 397 today, Wednesday, February 22, 2012, HB 397, legislation to drastically revise Georgia's Open Meetings Act and Open Records Act.
The legislation was introduced by State Rep. Jay Powell (R-Camilla) but authored and primarily sheperded by Georgia Attorney General Sam Olens. The legislature has granted an extraordinary proportion of deference to Olens, allowing him to propose changes to the bill in response to stakeholder concerns.
Atlanta Progressive News raised numerous concerns regarding HB 397 at a hearing last week, Wednesday, February 15. Afterwards, Olens requested that APN put specific language change requests in writing, and promised to respond. However, APN sent the changes on Thursday, February 16, but received no response. Thus, it is not immediately clear whether the version to be considered today will include the changes. [This article discusses the proposed changes below.]
Overall, the bill is a very mixed bag, containing some positive changes in favor of transparency, but also containing some changes that will allow government agencies to operate in more secrecy.
Also, the bill has changed significantly since it was first introduced last year. APN has participated so far in two hearings on HB 397, testifying first on August 30, 2011, and again last week.
As outlined below, some of the changes to HB 397 have been favorable to transparency and addressed concerns raised by transparency advocates, while other changes to the bill have removed some of the best and strongest provisions favoring transparency.
OPEN MEETINGS ACT - POSITIVE CHANGES
(1) PURSUANT TO CALL - HB 397 would strike language in the definition of "meeting" defining a meeting as "pursuant to call..." of an agency. This would address a baffling and troubling Court of Appeals of Georgia ruling, Gumz v. Irvin (2009), which ruled that if an agency failed to call their meeting ahead of time as required by law, that the meeting did not qualify as a meeting under the Act. By striking "pursuant to call" a meeting would now be required to be open even if it was not called as long as official business is being discussed or considered.
(2) REQUIRING MINUTES OF EXECUTIVE SESSION - HB 397 would require that minutes be kept in Executive Session and that these minutes can be kept private unless a citizen brought a civil action challenging the propriety of the Session. Agencies are currently allowed to go into Executive Session to discuss litigation, personnel matters, and acquisition of real estate.
(3) INCREASE IN FINES - HB 397 would increase fines for individuals who knowingly and willingly violate the Act from the current five hundred dollars, to one thousand dollars for a first violation, and 2,500 dollars for each additional violation within a twelve month period.
(4) ALLOWING FINES IN A CIVIL PROCEEDING - HB 397 would allow an individual to seek fines against public officials in a civil action; currently an individual has to seek such fines in a seperate proceeding by filing for a warrant application.
OPEN MEETINGS ACT - NEGATIVE CHANGES
(1) NEW EXEMPTIONS TO WHAT QUALIFIES AS A MEETING - HB 397 would increase the number of exemptions to what does not qualify as a meeting from zero to five. Some of these are more troubling than others. Exemptions allowing a quorum of agency members to participate in social, civic, religious, or ceremonial events; or to travel to a meeting, so long as official business is neither discussed nor acted upon, are reasonable. However, exemptions allowing discussion of official business at inspections of physical facilities, at meetings with legislative and executive branches, and at training meetings, are quite troubling.
Last year, for example, the Atlanta Public Schools Board of Education held a closed meeting with Gov. Nathan Deal. Olens challenged the closed status of this meeting and pressured APS into a memorandum of understanding where they agreed not to do it again. Thus, it is not clear why Olens would now want to allow such meetings to be closed.
In addition, information that citizens need to know about public buildings, for example, presence of asbestos, lead, or mold, could be revealed in a physical inspection, but would be kept secret under Olens's new provision. And, public officials could use training sessions to discuss all kinds of matters of official business in a closed meeting under the other provision.
(2) CHANGES TO STATUTE OF LIMITATIONS - HB 397 seems on its face to extend the statute of limitations applying to any citizen wanting to overturn a vote or action premised on an OMA violation, from ninety days to a possible six months. Olens told APN that the language is not intended to extend the limitation to any actions that simply challenge the legality of a closed meeting or other violation but do not seek to overturn a vote or action.
APN's News Editor--the present writer--wrote to Olens in an email last week: "I agree that 99 percent of people in the world would read the section as currently proposed and conclude that the part about bringing an action within 90 days or six months where 'the meeting was held in manner not permitted...' would only apply to 'any action contesting a resolution, rule, regulation... [etc.]' However, we are not dealing with reasonable people; we are dealing with out of control agencies like the City of Atlanta who will stop at nothing to shut out the public and avoid accountability for it."
"I am worried that they might argue that 'or, if the meeting was held in a manner not permitted by law, within 90 days...' means that if one is challenging a meeting’s compliance with the Act--but not challenging a vote--that such actions must also be brought within 90 days or six months. I’m asking for only five words to be added to make it absolutely clear that is not the case, and hope you can accommodate." Again, Olens did not respond despite promising to do so.
After APN's testimony at least week's hearing, Olens addressed the testimony by saying, "Mr. Cardinale recently won a Supreme Court case pro se and he should be commended. But he doesn't understand that the section he is talking about will actually help him and not harm him."
(3) CHANGES TO REQUIREMENTS FOR RECORDING OF VOTES IN MINUTES - Olens states that his intent with HB 397 is to make it clear that secret votes are not allowed. As APN readers are well aware, the present writer won a Supreme Court of Georgia ruling two weeks ago, clarifying that OCGA 50-14-1(e)(2) as currently written requires the listing of the names of the naysayers and abstainers, even in the case of a non-roll call vote; and from that, the "yeas" can be deduced.
However, HB 397 as currently proposed would change OCGA 50-14-1(e)(2) to a self-contradictory hot mess.
HB 397 would eliminate any distinction between the requirements for a roll-call vote and a non-roll call vote, with the intent of eliminating any ambiguous language regarding non-roll call votes, even though the Supreme Court has already clarified that language. Olens told APN the intent was also to allow unanimous votes to be presumed when the minutes list no names at all. But that's not what HB 397 says.
HB 397 currently states, "The name of each person voting 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."
The first part requires the yeas and nays, but not the abstainers, to be listed in all cases. Then the provision goes on to say "in all other cases." In other words, do A, but if you break the law and don't do A, do B.
What is worse, the statute says if the naysayers and abstainers are not listed, the vote would have to be presumed unanimous. So, what if there are abstainers but they are not listed; does the vote still have to be presumed unanimous, even if the yeas and nays are listed? Fortunately, the Supreme Court has ruled that there cannot be a false presumption of unanimity. However, it is not clear how an agency seeking to record a unanimous vote by listing no names could still comply with the first part requiring all yeas and nays to be listed. APN is concerned that if HB 397 is enacted as currently written, we'll be back in court with the City of Atlanta so fast, it would make readers' heads spin.
APN proposed changing the provision to make it much clearer and in line with Olens's intent, but has not heard back.
OPEN MEETINGS ACT - POSITIVE CHANGE REMOVED
(1) NON-QUORUM MEETINGS -- HB 397 as originally proposed would have defined a meeting under the Act to include any meeting of more than two agency members discussing official business. The present writer fondly referred to this as the "two's company, but three's a quorum" provision.
However, due to pressure from agencies, this provision was removed, Olens confirmed to APN.
APN maintains that such meetings are still illegal under Jersawitz v. Fortson (1994), but making that even clearer by amending the Act would have been preferable.
OPEN RECORDS ACT - POSITIVE CHANGES
(1) RECORDS CUSTODIAN -- HB 397 would specifically allow agencies to appoint a records custodian. This is a good provision becauseoften a citizen does not know who is in possession of a certain record; by having a single, central records custodian, a citizen could make one request to one person and rest assured that the custodian will ensure thatthe appropriate person respond.
(2) INCREASED FINES, FINES IN CIVIL PROCEEDING -- As in the case of the OMA changes, fines will also increase for ORA violations. And HB 397 will allow fines to be sought in a civil proceeding.
OPEN RECORDS ACT - NEGATIVE CHANGES
(1) BANNING CIVIL ACTIONS BASED ON VIOLATION OF A VERBAL OPEN RECORDS REQUEST - The current version of HB 397would state that an individual bringing a civil action based on an ORA violation may only do so if the Open Records request was made in writing. This is not good because it creates an additional burden for requesters if they wish to have enforcement rights later on, and leaves open the possibility that agencies can pretend not to receive written requests. However, it is an improvement over the originally proposed HB 397 which would have required ORA requests to be made in writing.
OPEN RECORDS ACT - NEGATIVE CHANGE REMOVED
(1) REQUESTING DOCUMENTS THROUGH OPEN RECORDS ALSO SOUGHT THROUGH DISCOVERY - The current version of HB 397 requires that an individual seeking documents through the ORA that they are also seeking through discovery, at least notify the attorneys for the opposing parties, that they are doing so. This creates an unnecessary additional burden upon requesters. However, it is an improvement upon the original proposal in HB 397 which would have banned such verbal ORA requests. This change had led to widespread public outcry, including by former Georgia Attorney General Mike Bowers.
Today's hearing will determine what changes have been made, or will be made, before the bill comes up for a subcommittee vote. If approved today, it would next have to be approved by the full committee, the full House, and then the full State Senate. With crossover day coming up, it is not too likely that HB 397 will pass both the House and Senate this year.
(END/2012)
Matthew,
Without seeing the pleadings and decision of Gumz v Irwin, in full of the appellate court ruling, "the meeting did not qualify as a meeting under the Act" if it was not prior announced could easily be read as voiding any decision made because if it was not "a meeting under the Act," then it was not a valid governmental meeting at all because under the Act all meetings that make decisions of government are supposed to be open. The entire underlying thesis of the Act is that official governmental acts can only be done in a public meeting, even those related to such things as real estate acquisitions which can only be finalized in public at a public meeting.
Perhaps you ought to learn the lesson about government officials like Olens from the school board thing, let alone that the change in regard to what is a meeting and minutes being required and open.
In your present lawsuit which after the Supremes voting your way is ongoing, you might have thought Olens was on your side. Indeed, that is what he wantewd you and the public to believe. After all he is just another populist whore serving the interests of the bourgeoisie which of course also serves himself.
So while he was reaping applause by entering a Friend of the Court Brief on your side he was helping write legislation cutting your interests off at your neck. The Court is a bourgeois institution that no matter its appearance, in the end serves the interests of the bourgeoisie, not those of your publication and the petite bourgeois,' many no doubt well meaning as is yourself, who in the main follow it.
What needs to be learned is that this government, no matter the many changes forced on it by the workers and small farmers since the writing of the Constitution, is a government of the ruling class, the bourgeoisie and their governmental whores who seek to benefit only the bourgeoisie as you should learn from Greece, Spain, Italy, and England, and soon as they start stealing back the pensions of U.S. workers and government employees, we here in the U.S, where it has ben falsely asserted for many years, "It can't happen here."
The Greeks have just had a non-elected Prime Minister imposed on them by the EU. That as we will see in the coming weeks is a move toward a police state, toward fascism; as will be demonstrated when protesting Greek workers are met with massive police and military and live ammunition.
The bourgeois state, internationally, is in great crisis because its underlying capitaliost economic system, based on stealing the surplus value created by workers and contained in the unpaid labor they exert in that proverbial but false "fair day's pay," contains contradictions (Like the above cited theft) that inevitably leads to social protest and revolution.
But, social protest in the end to be effective, requires a revolutionary leadership and as a step in that direction a parliamentary party of the working class, a labor party. That requires publication of organs directed that way. That is something you can do with your publication.
But that requires a change in the way you think. You are perplexed, obviously, by the contradictions in Olens stance on records and meetings Act issues, but that is only because you think of bourgeois "democracy" as real, as something other than a moral abstract.
Because of that, because you did not prepare to use this publication in a manner that would expose the deceit and treachery of such as Olens, because you still think of it as a matter of scholarly debate, Olens and his Master Deal, may well get away with it.
Think about it.
Jack Jersawitz
404-892-1238
bigjackjj@yahoo.com
Good luck on expecting anything out of the GOP Georgia General Assembly. You tell them in staightforward and sincere fashion what needs to be done to improve and reform; they listen; then they do what the really powerful and influential players tell them to do. You wonder why you wasted your time....
Let me add this " However, exemptions allowing discussion of official business at inspections of physical facilities, at meetings with legislative and executive branches, and at training meetings, are quite troubling" completely destroys the act.
Ever legislative committee, i.e., Committe on Council or any other Council committee is a "meeting[s] with [a] legislative branch[s].
Talk about scurrilous! Olens used you and your case to make himself look like a friend of transparency but in fact in his offers of amendments makes him the worst enemy of anybody that asserts government should be open.
Mark him down in the book for trial under the new Bolshevik government (Community Action Councils or Soviets in Russian) when the revolution is successful here. If I am on the jury and the jury finds him guilty I will vote for public hanging as example of the penalties for opposing the good of the working class and the transparency of its Soviets.
After all, if you go back and look at the Russian Soviets (Pre Stalin) those Soviets, adopting the policy of the Bolshevik Party, published all the secret documents and treaties of Czarist Russia with the West even whilst Leon Trotsky (Soviet Minister of the Military and foreign policy) was attempting to negotiate an end to the war with Germany to the dismay of the French, British, the U.S., and the rest of their allies.
j.