October 14, 2005
Commissioners Bannister, Green, Nasuti, Beaudreau, and Kenerly
Gwinnett County Commission
Gwinnett Justice & Administration Center
75 Langley Drive
Lawrenceville, Georgia 30045
Dear Commissioners:
I am writing on behalf of the Georgia First Amendment Foundation. We are an organization that seeks to advance the cause of open government and monitors freedom of information issues throughout this state.
We have followed the discussion surrounding the Gwinnett County Commission’s interpretation of the exception to the Open Meetings Act “when any agency is discussing the future acquisition of real estate” O.C.G.A. § 50-14-3(4); it appears that Commission believes that this exception allows voting to take place in closed session. We also have reviewed the legal opinion offered by David Winkle, Esq. which finds “no legal authority which would unequivocally suggest that the procedures [of not voting in public on contracts binding the County to acquire real property] violates the [Open Meetings] Act.”
The Georgia First Amendment Foundation believes that the cited exception does require that the vote to enter into a binding contract to acquire real estate must be in an open meeting of the Commission . However, even more importantly, as many of the individual Commissioners have stated, the state’s Open Meetings Act intends that the public’s business be conducted in the sunshine of an open meeting. The intent, spirit, and policy of the law is to encourage public access to governmental proceedings, and the Georgia courts have instructed that the Open Meetings Act must be construed broadly. See generally O.C.G.A. § 50-14-1 et seq.; Crosland v. Butts County Board of Zoning Appeals, 214 Ga. App. 295 (1994); Jersawitz v. Fortson, 213 Ga. App. 769 (1994). As Mr. Winkle states in his opinion, at page 2: “The Georgia Supreme Court is often quoted as saying ‘. . . if there is the slightest style, or any question whatsoever, as to whether a matter can be the subject of a closed meeting, do not close.’ “, citing the case of Steele v. Honea, 261 Ga. 644, 409 S.E. 2d 652 (1991). That openness is clearly the policy which the laws of our State encourage and require. The entire quote from Steele on the importance of open county commission meetings in Mr. Justice Fletcher’s concurring opinion, cited by Mr. Winkle, is as follows:
Gwinnett County Commission
October 14, 2005 (2)
I hope that the majority's decision [that failing to keep a county commission meeting open when required by the Open Meetings Act can be grounds under Georgia Law for the recall of a county commissioner] will discourage neither persons who currently serve as local public officials nor persons who are considering entering public service. Rather, I trust that the decision will be accepted as clear direction from this court to public officials and their attorneys. The practical side of the majority decision is to point out that if there is the slightest doubt, or any question whatsoever, as to whether a matter can be the subject of a closed meeting, DO NOT CLOSE. To err in favor of openness will not result in the imposition of penalties on public officials, however, to err otherwise may well result in such penalties. . . .
We have enclosed several copies of our publication, Georgia’s Sunshine Laws: A Citizen’s Guide to Open Government in Georgia. I and members of our Board would be pleased to meet with you to discuss the meaning and practical aspects of the Open Meetings Act in Georgia. We often meet with public officials throughout Georgia to discuss issues of this sort, and how the letter and spirit of the sunshine laws can be followed while dealing with the practical legitimate concerns of running county government.
Please let us know how we may be of service. Thank you in advance for your commitment to open government in Georgia.
Sincerely,
Hollie Manheimer
Enclosures
Cc: GFAF Board
Karen Gilpin Thomas, Esq.
David Winkle, Esq.