Synopsis of Georgia Open Meetings Act Cases
O.C.G.A. §§ 50-14-1, et seq

Special thanks to Georgia First Amendment Foundation Board Member Peter Canfield of Dow, Lohnes and Albertson, who prepapred the following synopsis and generously allowed the Foundation to post it on its Internet site.

1973
University committees. McLarty v. Board of Regents, 231 Ga. 22 (1973) (Undercofler, J.):
Suit for access to meetings of a committee composed of faculty members and students of the University of Georgia which was organized by the Dean of Student Affairs for the purpose of reviewing allocation of Student Activity Funds.
The Court affirmed the decision of the trial court (Barrow, J.), that such "advisory groups" do not fall under the Act. [Note that the Act has since been amended to expressly include agency committees.]
However, the Court for the first time stressed the importance of the Act: "What the law seeks to eliminate are closed meetings which engender in the people a distrust of its officials who are clothed with the power to act in their name. It declares that the people, who possess ultimate sovereignty under our form of government, are entitled to observe the actions of those described bodies when exercising the power delegated to them to act on behalf of the people in the name of the State."

1975
General Assembly. Coggin v. Davey, 233 Ga. 407 (1975) (Gunter, J.):
Suit by three radio reporters and Common Cause for access to meetings of General Assembly committees.
The Court held that the lower court (Etheridge, J.) erred in holding that the Open Meetings Act applies to the General Assembly.
Justices Ingram and Hall concurred specially, stating "[w]e do not concur with the statement in the majority opinion that either the House or the Senate can pass an internal operating rule for its own procedures in conflict with a general law enacted by both bodies and signed by the Governor."

1977
Notice. Harms v. Adams, 238 Ga. 186 (1977) (Hill, J.):
Citizen sought to have certain actions of the Union City planning commission declared void for failure to comply with the Open Meetings Act
The Court upheld dismissal of the suit by the trial court (Etheridge, J.) based on the fact that, although the planning commission's meetings were held in "the mayor's office, a small and crowded room," there was no evidence that any person attempted to gain admission but was excluded. "While plaintiff argues that the planning commission meetings were not open to the public, basically he is contending that the public was prevented from attending because there was no notice of the meetings. Our Sunshine Laws deals with openness of public meetings, not with notice of such meetings." [Note that the present Open Meetings Act requires notice of meetings.]
Justice Ingram concurred in the judgment only, without opinion.

1978
Notice. Dozier v. Norris, 241 Ga. 230 (1978) (per curiam):
Suit by citizens and taxpayers of Columbia County to invalidate certain action by the county commission taken at an allegedly secret meeting held in one of the commissioner's homes.
As in Harms, the Court affirmed the rejection by the trial court (Pierce, J.) of the Open Meetings claim, holding that Act "does not require notice to the public of governmental meetings; rather, it merely requires meetings to be open to the public." Unlike in Harms, the Court recognized the importance of such a notice requirement if the Act is to be effective: "The trial court realized and this court realizes the potential for abuse when meetings that are open to the public are held away from their usual places." [Note that the present Open Meetings Act requires notice of meetings.]

1979
Timeliness. Worthy v. Paulding County Hospital Authority, 243 Ga. 851 (1979) (Nichols, C.J.):
Suit challenging public hospital authority's decision, in executive session, to apply for an addition to its nursing home facilities. Plaintiff sought to invalidate the decision for failure to comply with the Open Meetings Act.
The Court affirmed the decision of the trial court (Noland, J.) that such relief was unavailable as the suit had not been filed within 90 days of the decision as required by the Act.

1980
School boards. Deriso v. Cooper, 245 Ga. 786 (1980) (Nichols, J.):
Suit against the Sumter County school board based on 1976 constitutional provision requiring school boards to keep all meetings open at all times.
The Court reversed and affirmed the trial court (Blanks, J.), holding that school boards may meet in executive session to discuss, deliberate, consider or hear matters enumerated in the Open Meetings Act as exceptions to its open meetings requirements.
Justice Hill concurred specially.
Justice Jordan dissented, arguing that "the Constitution says what it means and means what it says."
The plaintiffs moved for rehearing, which the Court, Justices Jordan and Hill dissenting, denied: "If this state of the law is perceived by the school patrons as being unjust, their proper recourse is to their elected representatives in the General Assembly with suggested revisions to our Constitution and laws."

1982
Validity of ordinance initially passed in illegal meeting but subsequently reenacted in legal meeting. Newsome v. City of Union Point, 249 Ga. 434 (1982) (Gregory, J.):
Suit to invalidate ordinance enacted by the City of Union Point regarding the licensing and sale of malt beverages and wine.
The Court affirmed the trial court (Thompson, J.), holding that it was unnecessary to consider the plaintiff's Open Meetings claim because the City subsequently re-enacted the ordinance in compliance with the Act's provisions.

1985
Criminal prosecution. State v. Kennedy.
According to the Georgia Press Association's amicus brief in Bowers v. Regents, on January 21, 1985, the Colquitt County Grand Jury indicted county commission chairman Bill Kennedy on seven counts of Open Meetings violations. He subsequently pled nolo to four counts and paid a small fine.

1987
Atlanta City Charter. City of Atlanta v. Pacific & Southern Company, Inc., 257 Ga. 587 (1987) (per curiam):
Appeal by the City of Atlanta of an order requiring that any meeting of the Atlanta Public Safety Committee at which the so-called "Alice Bond" report was to be discussed must be open to the public.
The Court affirmed the decision of the trial court (Eldridge, J.) that the meeting must be open, holding that the meeting was required to be open by the Charter of the City of Atlanta, which provides that "All meetings of the council and of its committees shall be open for attendance as provided by law." The Court emphasized that this provision leaves "no room for closed meetings." The Court did not consider the Open Meetings Act.

Advisory panels. Atlanta Journal v. Hill, 257 Ga. 398 (1987) (Hunt, J.):
Suit for access to meetings of the Administrative Review Panel appointed by Mayor Young to conduct a review of actions taken by City officials in response to Alice Bond's allegations.
The Court declared for the first time that "the Act must be broadly construed to effect its remedial and protective purposes," which the Court described as follows: "We note that the Act was enacted in the public interest to protect the public - both individuals and the public generally - from 'closed door' politics and the potential abuse of individuals and the misuse of power such policies entail."
However, the Court held that the Act does not cover groups which although they function on behalf of government have no official authority. The Court held that the Administrative Review Panel had no such authority, despite its purported subpoena powers, because the delegation to it of subpoena powers was unconstitutional.
Justice Marshall concurred specially, writing that the Open Meetings Act does not apply to advisory committees. [Note that the Act has since been amended to expressly include agency committees.]
Justice Gregory concurred in the judgment only.

1988
Notice. Johnson v. Nicely, 258 Ga. 574 (1988) (Gregory, J.):
Suit to invalidate the Warren County Board of Commissioner's application to be a host site for a hazardous waste dump based on improper notice of the Board's meeting in violation of the Open Meetings Act.
The Court reversed the decision of the trial court (Pickett, J.) invalidating the application, holding that, even though the notice did not state the exact time and place of the meeting, the notice was nevertheless sufficient to comply with the statute and added that "[i]f more effective notice is desired, the statute must be amended."
Justice Weltner dissented, arguing that the notice was inadequate as a matter of law.

Personnel exception. Atlanta Journal v. Babush, 257 Ga. 790 (1988) (Gregory, J.):
Suits before Judge Tillman by both The Atlanta Journal-Constitution and The Attorney General challenging the closure of a State Personnel Board Meeting at which the Board heard oral argument concerning the demotion and relocation Public Safety employee Richard Coleman on grounds that he had endorsed ticket-fixing by members of the State Patrol.
The Court held that the meeting was exempted from the Open Meeting Act's requirements by the Act's personnel exclusion, noting "we must recognize the exclusion whether or not we think it is a good idea."
Justice Weltner dissented, arguing that because the Act must be construed broadly, its exceptions must be construed narrowly, and so construed it did not exclude the meeting under review. He stated, "[w]hile this court has the power to define away any or all of the rights granted to our citizens by the General Assembly, our duty ought to lead us in other directions."

Subpoenaed witnesses. Macon Telegraph v. City of Forsyth, No. 88V442 (Monroe Superior Court, September 30, 1988) (Craig, J.):
Suit by The Macon Telegraph, in which The Atlanta Journal-Constitution participated as an amicus, for access to meetings conducted by a committee of the City of Forsyth City Council for the purpose of questioning citizens concerning allegations of government impropriety.
Judge Craig ruled that the public was entitled to attend such meetings, ordered disclosure of transcripts of such meetings conducted in closed session in the past, and enjoined the City from conducting such meetings in secret in the future.

1989
Criminal prosecution.
On August 15, 1989, Snellville Mayor Emmett Clower pleaded no contest to one misdemeanor count of violating the Open Meetings Act and received a $500 suspended fine. According to a Gwinnett Daily News report, Clower and other Snellville officials had been accused of participating in meetings that were not properly posted, of failing to furnish agendas for the meetings and of failing to make minutes available within the time period specified by the Act.

Personnel matters. Times-Journal, Inc., d/b/a Marietta Daily Journal v. Cobb County, et al., No. 89-16974-05 (Cobb County Superior Court, Oct. 23, 1989) (Cauthorn, J.):
Suit by the Marietta Daily Journal for an order requiring the defendants to allow the Journal to inspect and copy the minutes and a tape recording of the September 26, 1989 meeting of the Cobb County Board of Commissioners.
Judge Cauthorn ruled that the Journal was entitled to the requested relief as the meeting should not have been closed because more than discussion and deliberation of a personnel matter occurred, i.e., a vote was taken.

Coroner's inquest. Kilgore v. R. W. Page Corp., 259 Ga. 556 (1989) (Weltner, J.):
Access to coroner's inquests is governed by the Open Meetings Act.

Personnel matters. Athens Newspapers, Inc., et al. v. Classic Center Authority for Clarke County, No. SU-89-CV-1543 (Clarke County Superior Court, Dec. 22, 1989) (Gaines, J.):
Suit by the Athens Banner Herald and Athens Daily News to enjoin closed sessions of the Classic Center Authority to discuss and deliberate upon the employment of architectural firms for the Athens Civic Center.
Held that the entire meeting should have been open both (1) because architectural firms are not "employees" within the meaning of the Open Meetings Act personnel exception and (2) because the action of the Authority in reducing the number of firms under consideration from six to three was tantamount to a vote regardless of what other label may be attempted to be attached and votes are not excluded by the personnel exception.

1991
Board of Education meeting. News Publishing Company d/b/a Rome News-Tribune v. Board of Educ. of the City of Rome, No. 90-CV-11083-2 (Floyd County Superior Court, Jan. 7, 1991) (Matthew, J.), sum. aff'd, (Ga., May 10, 1991):
Suit by Rome News-Tribune to enjoin closed sessions of Rome Board of Education to consider candidates to replace board member who had resigned.
Held that O.C.G.A. §50-14-3(6), which excepts "meetings when discussing or deliberating upon the appointment . . . of a public officer or employee" from the requirements of the Act, permitted board to close sessions to consider appointment of new board member.

Coroner's inquest. Kilgore v. R. W. Page Corp., 261 Ga. 410 (1991) (Bell, J.):
Trial court (Whisnant, J.) held that a coroner's inquest must be conducted in a manner open to the public. Affirmed.
The Court held that coroner's inquest must be open under the Open Meetings Act. "[T]he Open Meetings Act does not by its terms exempt from its coverage meetings concerning a pending criminal investigation. ... Moreover, there is no provision in the Open Meetings Act granting this Court the authority to fashion a public-interest test for determining whether meetings required to be open by the Act should nevertheless be closed."

Ground for recall. Steele v. Honea, 261 Ga. 644 (1991) (Weltner, J.) [19 Med. L. Rep. 1605]:
Conduct of public official who participates in closed meeting that is required by law to be open can become ground for recall under 1989 Recall Act.
According to Fletcher, J., concurring, "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."

1992
Georgia Commission on Gender Bias in the Judicial System meetings. Fathers Are Parents Too, Inc. v. Hunstein, 202 Ga. App. 716 (1992) (Andrews, J.):
Group sued chairman of Georgia Commission on Gender Bias in the Judicial system for access to Commission meetings. Trial court (Vaughn, J.) dismissed suit. Court of Appeals affirmed.
Open Meetings Act does not apply to judicial branch of government or to the Commission, which was formed pursuant to a Georgia Supreme Court order to assist the Court in exercising its judicial function.

Timeliness. Walker v. City of Warner Robins, 262 Ga. 551 (1992) (Fletcher, J.):
Affirming ruling of trial court (Nunn, J.) that property owners waived Open Meetings Act challenge to city resolution to seek drainage easements by failing to raise issue in timely manner.

1993
Public university student disciplinary hearings. Red & Black Publishing Company v. Board of Regents, 262 Ga. 848 (1993) (Hunt, J.):
Appeal from ruling of trial court (Hull, J.) that records of the University of Georgia Student Organization Court must be disclosed to the public pursuant to the Open Records Act but that the Court's disciplinary hearings are not subject to the Open Meetings Act. Affirmed in part, reversed in part.
The Court concluded that both the records and the disciplinary hearings of the Student Organization Court must be open to the public: "We are mindful that openness in sensitive proceedings is sometimes unpleasant, difficult, and occasionally harmful. Nevertheless, the policy of this state is that the public's business must be open, not only to protect against potential abuses, but also to maintain the public's confidence in its officials." 262 Ga. at 854.

County board of commissioners executive session. Brennan v. Commissioners of Chatham County, 209 Ga. App. 177 (1993) (Johnson, J.):
Affirming determination by trial court (Gadsden, J.) that a vote of the Chatham County commissioners in an executive session to dismiss plaintiff, the appointed county attorney, did not violate Open Meetings Act. The Court of Appeals held that the Act did not require the executive session to be held in public because it was held for the purpose of "discussing or deliberating upon the . . . dismissal . . . of a public officer or employee," and thus exempt pursuant to O.C.G.A. § 50-14-3(6).
The court concluded that the 1992 amendment to O.C.G.A. § 50-14-3(6) requiring that any vote affecting the dismissal of a public employee be taken in public was not in effect when the commission vote took place in 1991.

1994
Petition for recall. Davis v. Shavers, 263 Ga. 785 (1994) (Clarke, J.):
Appeal from decision of trial court (Pannell, J.), finding that applications for petition of recall of two city councilmen and the mayor of Fort Oglethorpe, Georgia were insufficient. Among other alleged transgressions, the application cited a violation of the Open Meetings Act as grounds for the recall.
Affirming the trial court's decision, the Georgia Supreme Court recognized that a violation of the Act can be grounds for recall of a politician, but held that the circumstances of the violation must be set out with "reasonable particularity," including notice of the time and place of the alleged violation, so that members of the public can make "an informed decision as to whether to sign the application for recall." 263 Ga. at 787. According to the Court, "That was not done in this case." Id.

Advisory committees. Jersawitz v. Fortson, 213 Ga. App. 796 (1994) (Blackburn, J.), cert. applied for:
Suit alleging violation of Open Meetings Act by the Atlanta Housing Authority's Olympic Task Force Selection Committee. The trial court (Langham, J.) held that the meeting did not fall within the purview of the Open Meetings Act.
The Court of Appeals reversed, holding that the committee "acted as a vehicle for AHA to carry out its responsibility to review the proposals submitted to the agency, and because of the responsibility assumed by this committee with the knowledge and full acquiescence of the agency, the agency cannot hide behind the committee and assert that its governing body did not create it."
The court also found that AHA did not substantially comply with the Act by providing the plaintiff with a videotape of the meeting after the fact, because viewing a videotape was not "as adequate substitute" for having the opportunity to give input to the decision-makers.

90 days provision. Guthrie v. Dalton City School District, 213 Ga. App. 849 (1994) (McMurray, J.):
Appeal from trial court's grant of partial summary judgment to defendant school district voiding a settlement agreement that had been reached between the board of education and plaintiff school teacher as violative of the Open Meetings Act. The trial court (Pannell, J.) reasoned that because the board had approved the settlement agreement outside of an open meeting, the board's action violated the Act.
The Court of Appeals reversed, holding that defendant's challenge to the action taken at the meeting was not brought within 90 days, as required by O.C.G.A. § 50-14-1(b).

Discussion of permit in closed session. Crosland v. Butts County Board of Zoning Appeals, No. A94A0739 (Ga. App., July 15, 1994) (en banc) (Pope, J.), cert. applied for:
Suit challenging Butts County Board of Zoning Appeals' grant of a solid waste landfill permit. The trial court (Smith, J.) granted summary judgment to the board, concluding that the board had not violated the Act.
In an en banc decision, the Court of Appeals reversed and remanded, holding that fact issues existed as to whether the Act had been violated. The court noted that there was conflicting testimony as to whether the merits of granting the permit had been discussed at two nonpublic meetings that had been held by the board.
Four judges dissented, arguing that even though the permit was discussed at closed meetings, the only "official action" occurred at an open meeting after public hearings.

1995
Hospital authorities. Northwest Georgia Health System, Inc. v. Times-Journal, Inc., 218 Ga. App. 336 (1995) (McMurray, J.):
Appeal from order of trial court (Hines, J.) in suit by Marietta Daily Journal holding that combinations of private hospitals and public hospital authorities are subject to the provisions of the Open Meetings and Open Records Acts.
Court of Appeals affirmed, stating that "[w]ithout question, these private, nonprofit corporations became the vehicle through which the public hospital authorities carried out their official responsibilities.

1996
Notice. Beck v. Crisp County Zoning Board of Appeals, 221 Ga. App. 801, 472 S.E.2d 558 (1996) (Blackburn, J.):
Appeal from order of trial court (Lawson, J.) finding that appellant landowners failed to establish a violation of the Open Meetings Act.
Court of Appeals reversed, concluding that the zoning board intentionally misinformed the public by its printed agenda and its chairman's comments that the meeting was closed. Accordingly, the board's action on the petition for conditional use permit at issue was void.

1998
Petition for recall. Phillips v. Hawthorne, No. S97A1771, 98 FCDR 325 (Ga., Jan. 26, 1998) (Hunstein, J.):
Appeal from trial court order finding legally insufficient recall applications alleging an Open Meetings Act violation.
Reversed. "The requisite information identifying the meeting was provided here not by date or location but by the controversial subject matter that was allegedly discussed at the meeting."
Benham, J., joined by Carley and Thompson, JJ., dissenting.

1999
Personnel issues . Camden County v. Haddock , 271 Ga. 664 (1999) (Fletcher, J.):
Former county employee sued county, county commission, individual commissioners, and administration, alleging violations of procedural due process and the Act in connection with her discharge. The trial court entered summary judgment for employee, and county appealed.

Reversed. The Act provides that county commission meetings must be open to the public, but there is an exception when personnel matters are discussed. Thus, the county commission did not violate the Act when its members discussed former county employee's performance at meetings prior to her termination by county administrator.

2000
Attorney-client privilege . Schoen v. Cherokee County , 242 Ga.App. 501, (2000) (Johnson, J.):

County resident sued county, chairman of county board of commissioners, and members of board for violation of the Act. Trial court entered summary judgment for county, chairman, and board members, and resident appealed.

Affirmed. Court of Appeals held that the closed meeting between county board of commissioners and county attorney about lawsuit filed by property owner challenging board's denial of its application to change zoning classification fell within attorney-client exception to Act, even if members voted on proposed consent order, as governing body discussing pending litigation with counsel must necessarily be permitted to decide whether to accept or reject a proposed settlement agreement, even if it incidentally involves taking of a vote.

2001
Personnel matters . Moon v. Terrell County et al. , 249 Ga.App. 567 (2001) (Barnes, J.):
Court of Appeals held that, even though defendant employer asked plaintiff whether he would prefer a closed or open session to discuss his employment status and he chose a closed session, the Act states that “the public at all times shall be afforded access to meetings declared open to the public.” One citizen cannot elect to close a meeting that should be open. Defendant's action of terminating plaintiff's employment was void, as it was accomplished in violation of Act.

Location of meeting . Maxwell v. Carney , 273 Ga. 864 (2001) (Thompson, J.):
County board of commissioners held monthly meeting in usual room, but on one occasion the room could not accommodate all people who wanted to attend. Board did not move meeting to larger room that had been used previously for meetings.

Supreme Court affirmed lower court's ruling that board must conduct meetings in larger meeting room if usual room was too small; but reversed lower court's ruling that board was required to provide adequate seating to enable all members of public to attend the meeting. Held that Act requires adequate, advance notice of a meeting, not physical access to all members of public.

Attorney-client privilege . Claxton Enterprise v. Evans County Board of Commissioners , 249 Ga.App. 870 (2001) (Ellington, J.):
Board invoked the attorney-client exception to Act to discuss “probable litigation” concerning employee. Newspaper objected as there was no evidence employee had taken any legal action against the county at that time. Board later amended its stated reason to “personnel matters.” A week later, Board again invoked attorney-client exception to close meeting to discuss possible litigation concerning same employee, as the employee had now made reference to litigation.

Held that Act must be construed broadly and exceptions construed narrowly.

Court of Appeals found that employee's threat to sue was idle and should not be construed as potential litigation for purposes of the Act. To invoke attorney-client exception, the governmental entity must show a realistic and tangible threat of legal action, beyond mere suspicion or fear of being sued.

2002
Board of Equalization deliberations . Bryan County Bd. of Equalization v. Bryan County Bd. of Tax Assessors , 253 Ga.App. 831 (2001) (Andrews, J.):
The Bryan County Board of Equalization held an open hearing to obtain evidence regarding a dispute over property value. The Board, however, closed the meeting to the public when it began its deliberations. The Board claimed that its deliberations were a quasi judicial function and, therefore, entitled to be in private.

The Court of Appeals ruled against the Board noting that the Open Meetings Act applies to al meetings of the Board. In response to the Board's claim that they were undertaking a quasi judicial function, the Court held: “We realize that ‘openness in sensitive proceedings is sometimes unpleasant, difficult, and occasionally harmful. Nevertheless, the policy of this state is that the public's business must be open.'”

Attorney's fees . Evans County Bd. of Comm'rs v. The Claxton Enter. , 255 Ga.App. 656 (2002) (Phipps, J.):
The Claxton Enterprise newspaper sued the Evans County Board of Commissioners for violating the Open Meetings Act. The trial court awarded the newspaper $1,500 in attorney fees.

The Court of Appeals upheld the award of attorney fees. The Court held that when non compliance with the Open Meetings Act is without “substantial justification,” attorney fees must be awarded. This includes fees incurred for appellate work. “Substantial justification” does not require a showing that the government acted with bad faith.

Civil discovery . Wiggins v. The Bd. of Comm'rs of Tift County , Ga. , 258 Ga.App. 666 (2002) (Eldridge, J.):
Plaintiff sought injunctive relief under the Open Meetings Act against the Board of Commissioners of Tift County. He claimed that the Board received evidence and heard arguments against him while in a closed session in violation of the Act. The superior court granted the injunction and ordered the relief sought by Plaintiff -- that no action taken against him as a result of the Board meeting.

The Court of Appeals affirmed the remedial injunction but also held the trial court should not have placed the Board under a continuing injunction as the Board was already under a legal duty to comply with the Open Meetings Act.