FALL 2005 NEWSLETTER
GEORGIA F.O.I. ACCESS
GEORGIA FIRST AMENDMENT FOUNDATION

Gwinnett  Commission has made $150 million in purchases in executive session since 2000 

        'Whoever has the quarter selects the song,' and  
        the county finds an attorney to affirm its secrecy

By Tom Bennett 
   
    Atlanta, Oct. 24, 2005 -- Open Meetings, once pushed to the background during the heyday of computer-assisted reporting, are enjoying a resurgence in sunshine-law politics and polemics.

     However, Georgia's best-known court ruling in support of the Open Meetings Act -- the opinion that is the state's best defense against abuse of executive session --  is being sidestepped by the Gwinnett County Commission.  It’s happening with all  the deft footing of a Parkview High running back eluding tacklers on the way to a touchdown.  

     "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,"  Justice Norman Fletcher of the Georgia Supreme Court  wrote in Steele v. Honea, concurring in Charles L. Weltner's majority opinion in 1991.  In a profession averse to a lot of hyperbole, the man who retired in 2005 as chief justice saw fit to put those words into Georgia law in capitol letters.

   Well, there's doubt all right, and plenty of  questions, surrounding the Gwinnett Commission's secret votes to purchase land for parks and fire and police stations.  

    Staff writer Duane Stanford of AJC Gwinnett News has written 17 articles about it.  The county has turned to David P. Winkle of the Atlanta law firm of Powell Goldstein LLP to tell them about it.    He has produced a 1,500-word view.  The Georgia Attorney General's office  has weighed in.  The slightest doubt does exist.  However,  the commission of the 700,000-population county has decided to CLOSE.

      David P. Winkle is an Emory Law graduate. His practice area is health care,  and he "concentrates his practice in two extremely specialized areas of law -- health care and local government," according to his biography in the Martindale-Hubbell Law Directory.

  "I can find no legal authority which would unequivocally suggest that the procedures presently used by the commission to approve real estate contracts violates the Act," Winkle wrote to the county attorney Oct. 7.

     Thurbert Baker, attorney general of Georgia, relayed to Stanford through his spokesman Russ Willard in September  that "votes to purchase property must be taken in public."

    However,  at this writing the five persons representing the county of 700,794 are relying on the opinion of Winkle, and not Attorney General Baker.

     In locating a lawyer to tell them they are operating legally, why didn't the commissioners and their attorney turn to Baker? Or to  someone in the media bar?  Or to one of the stalwarts of the  annual   Georgia Bar,  Media and Judiciary Conference?  Or to the legal committee of the Georgia First Amendment Foundation?

    "You could say whomever has the quarter selects the song," said David Hudson of Augusta.  He is the lawyer for the Georgia Press Association and a GFAF legal committee member.

    "But lawyers are not like jukeboxes," Hudson said.  "We're beyond that. I know some city and county attorneys and school board attorneys who would have gone out of their way to be out in the open about it.

    "What is so frustrating about the Gwinnett situation is that you can preserve the secrecy of the purchaser and at the same time you can gain public imput before you ever commit a dollar of the public's money.

     "That can be easily accomplished without having a secret vote that binds the government.  One way is for the government executive to get a real estate agent to negotiate for the property on behalf of an unknown buyer,   and  then bring a contract signed by the seller to the government body for a binding vote in public.  At that juncture, the seller is already bound.
 
   "Another way to do it is for the body to vote in public to authorize its agent to negotiate to purchase parcel "X"  subject to final approval at a following public meeting.  "X" is kept confidential until the seller has signed the contract.
 
   "Also I think we ought to support the attorney general's position that all binding votes must be in public.   There  is too much of a risk of shady dealings and overreaching if binding decisions get made in secret."
 
   THE ATTORNEY GENERAL's OFFICE  faces this attack upon the Open Meetings Act at a time when, after operating its  Open Government Mediation Program  seven years without suing anyone, it played that card earlier that year for facts about bids for the Super Bowl and a  stock-car racing museum.  This Gwinnett County  issue seems to dwarf those in importance.  Might Baker act, too, in secret Gwinnett land purchases?  Or has the overworked, understaffed Law Department hit its limit?

   "We don't have a quota, I can tell you that," said Daryl Robinson, an assistant attorney general.  "We take these things on a case by case basis."

    In one purchase this year, the Gwinnett Commission voted secretly to pay $1.9 million for property in Lawrenceville, it said for a public park.  The owner received the nearly $2 million price despite  having paid less than a third of that amount three years earlier.  This commission purchase  occurred  in July 2005.  However, it did  not become public knowledge until it was reported by AJC staff writer Duane Stanford on Aug. 23.

    Since 2000,  Gwinnett County has made $150 million in land purchases on which the members voted in secret, according to the reporter's article of Aug. 28.

‘WE HEAR IT A LOT’

   DUANE STANFORD is a 13-year AJC News employee,  a Gwinnett County resident,  and a former co-president of the Arcado Elementary PTA.  He is a husband and father of two children aged 9 and 4. He coaches youth basketball and soccer, and leads Cub Scout Pack 552.

      In one of the secret votes by the commission that he covers, a man who had had trouble developing a shopping center turned to the county.  He never had to turn a spade of dirt,  and he  received millions for his land.  His sale netted an amount far exceeding an earlier appraisal.  Stanford was asked, do you have a  sinking feeling that in such a secret setting like this, this has occurred many times?

   "Yes, and we hear it a lot," Stanford replied. "This was one of those that has been extremely difficult to track down because of the way they negotiate in private."

   The Georgia First Amendment Foundation sent the following letter to the commission in October 2005:
 
    "Commissioners Bannister, Green, Nasuti, Beaudreau, and Kenerly, Gwinnett County Commission.
 
    "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 publicity surrounding the Gwinnett County Commission’s interpretation of the real estate acquisition exception to the Open Meetings Act; it appears that Commission believes that this exception allowing voting to take place in closed session.  We also have reviewed the legal opinion offered by David Winkle, Esq.
 
   "The Georgia First Amendment Foundation believes that this exception requires a vote to take place in public.  O.C.G.A. § 50-14-3(4).  However, even more importantly, as some of the individual Commissioners have stated, the state’s Open Meetings Act intends to maximize public access.  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).
 
    "We have enclosed several copies of our publication, "Georgia’s Sunshine Laws: A Citizen’s Guide to Open Government in Georgia," and would be happy to meet with you to discuss the meaning and mechanics of the Open Meetings Act in Georgia (and the Open Records Act as well if you like).  We routinely conduct workshops around Georgia pertaining to issues of this sort.
 
    "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, Executive Director."