Legality of Bibb courthouse vote in doubt

When the Bibb County Commission voted last year to purchase $3.3 million worth of property for a new courthouse near the county jail, the votes were taken in secret during two closed sessions not open to the public.

Commissioners say they followed the advice of the county attorney, who maintains that private votes on real estate matters keep the selling price at fair-market value and protect taxpayers’ money.

But the state Attorney General’s Office disagrees and says such votes are illegal.

“There’s nothing in the Open Meetings Act permitting any vote on any matter to be taken in executive session,” said Russ Willard, a spokesman for state Attorney General Thurbert Baker. “The Open Meetings Act only permits discussion of property acquisition (in closed session). It does not permit votes.”

ug. 5, Bibb commissioners voted to go into a closed session during a Properties Committee meeting to discuss property acquisition. All five commissioners were present, including then-Bibb Commission Chairman Charlie Bishop and Commissioners Elmo Richardson, Lonzy Edwards, Joe Allen and Bert Bivins, according to the meeting’s minutes.

While in closed session, commissioners heard from Conie Mac Darnell, principal of Center City Investments. Darnell, the former head of NewTown Macon, had spent the previous few weeks meeting with owners of 29 properties in the Oglethorpe Street area, where there was potential for locating a new courthouse.

On a motion from Richardson that was seconded by Bishop, the commission authorized Darnell to proceed with purchasing the properties for the footprint of the new courthouse at a cost not to exceed $2.1 million, according to the minutes.

Then three and a half months later, commissioners voted to close a Committee of the Whole meeting Nov. 18 to discuss property acquisition.

On a motion from Richardson that was seconded by Edwards, the commission authorized Darnell to proceed with purchasing another block of property to be used as possible parking for a new courthouse at a cost of no more than $1.2 million, according to the minutes. Bishop left this meeting before a vote was taken.

The votes to purchase property during both sessions were unanimous, Richardson said. County Attorney Virgil Adams advised commissioners that they could proceed with the vote during closed session, he said.

“All I know is the county attorney told us we could, and he was present,” Richardson said.

Bishop said he doesn’t really remember the meeting. He says he may or may not have been present, and that there may or may not have been a vote. He says if there was a vote, it was based on the advice of the county attorney.

He also questioned the accuracy of the minutes.

“If I was there, I was there, but I wasn’t there,” he said.

COUNTY ATTORNEY: VOTE NOT UNUSUAL

Adams said the commission always has voted on property acquisitions during closed session, and it will continue to do so.

While the Open Meetings Act specifies that governments must vote in public on personnel matters and potential litigation — two other reasons a meeting may be closed — it does not specify that for property acquisition, Adams said.

“If you vote in an open session, you really defeated the whole purpose of going into a closed session in respect to real estate,” he said.

People might figure out where the property is, and the price could be driven up, he said. The commission complies with the law by keeping minutes of the closed session and releasing them to the public once the purchase is revealed or completed, he said.

“I don’t think anybody’s done anything illegal,” Adams said.

The Attorney General’s Office says the law is written in favor of openness. David Hudson, the general counsel for the Georgia Press Association, and Hollie Manheimer, executive director of the Georgia First Amendment Foundation, agree with that opinion.

The law allows for the identity of the property to be withheld until the deal is done, Manheimer said, but the vote itself must be taken in public.

Kelly Pridgen, assistant general counsel for the Association County Commissioners of Georgia, said many county attorneys disagree with the attorney general’s opinion.

While the association doesn’t advise counties specifically on the matter, Pridgen said, the cautious approach would be to vote in public.

Edwards, who also is an attorney, said he supports Adams and his advice.

“I stand with legal counsel,” he said. “Lawyers give opinions all the time, and the attorney general is the state’s lawyer.”

The commission could face penalties if someone files a complaint over the vote, but there’s little time for anything to be done.

Any challenge to the action must be made within 90 days, according to state law. Otherwise, the vote stands.

If a complaint is filed within that time frame, the action could be set aside. In addition, commissioners who “knowingly and willfully” participate in a violation of the Open Meetings Act are subject to a $500 fine and recall from office, according to the law.

The commission’s second vote reaches that 90-day mark next week.

Bibb State Court Solicitor Otis Scarbary said he has never dealt with an Open Meetings Act complaint in his more than 25 years in office.

If he were to receive a complaint, Scarbary said, he would disqualify his office from prosecuting it and request a special prosecutor. Employees in his office work for the county, and the commission approves Scarbary’s budget.

Bibb Commission Chairman Sam Hart, who was not on the board when the panel voted to purchase property for the courthouse, said he’s not concerned about the vote being overturned because property acquisitions always have been taken in closed session.

“I don’t have any worries about that,” said Hart, who served as a commissioner from 1996 to 2007.

LOCATION ALREADY A HOT TOPIC

For years, the 84-year-old courthouse on Mulberry Street has been slowly deteriorating.

Past and current commissions have approved money for repairs and quick fixes to the building, which has endured numerous add-ons and alterations to its original structure.

In June 2007, commissioners heard a report from The Facility Group, an Atlanta-based general contractor, that stated the current courthouse was operating at maximum capacity with inefficient and potentially dangerous working conditions.

Two months later, Bibb’s Superior Court judges ordered the commission to build a new courthouse by July 1, 2009.

With that deadline in mind, commissioners began looking for a new courthouse location. In January, the commission announced it was purchasing property near the Bibb County Law Enforcement Center, with plans to move judicial services to a new 171,000-square-foot courthouse and keep other county offices in the building on Mulberry Street. The judges extended their court order to 2012.

All but about three parcels are under contract, Richardson said, and the county has closed on properties totaling $1.6 million to $1.7 million. The total cost is coming in under the county’s $3.3 million budget, he said.

The commission and other supporters of the new location, which is not quite a mile away from the existing structure, say building a courthouse in a blighted part of town would help bolster the area and expand the footprint of downtown. But moving the courthouse has proven unpopular with many downtown business owners and stakeholders, who fear that restaurants and other businesses will suffer from decreased foot traffic in downtown’s core.

At a commission meeting last month, developer Tony Long vowed to do anything he could to keep the courthouse in its current location. Restaurants will suffer, and some attorneys will move, he said.

Long said Friday he didn’t think he would file a formal complaint about the way the vote to purchase property was taken, but he said there should have been more public involvement.

“I think we should have a lot of say in how much money is going to be spent with the economy like it is right now. Even in good times, I think we should have a lot of say in how the money’s going to be spent,” Long said.

“I think the (courthouse) location should be the best for everybody, not just the sheriff, certainly not just for the criminal.”

He questioned why the commission didn’t hold public meetings about a plan for the courthouse before a purchase took place.

“I think some of the previous administration, and even some of them who are still there, think the public doesn’t have a right to know until they’re ready to tell them,” he said.

To contact writer Jennifer Burk, call 744-4345.