Macon Telegraph, April 17, 2008
A judge said Friday that Bibb County commissioners can continue to vote in secret when deciding to purchase real estate, although they must adhere to laws requiring that minutes reporting the vote be released in a timely fashion.
The ruling was prompted by a lawsuit three Bibb residents brought against the commission, alleging board members violated the state Open Meetings Act when they voted last year in closed session to buy land on the edge of downtown Macon for a new courthouse.
Houston County Superior Court Judge George Nunn presided over a nearly two-hour hearing on the matter Friday morning. Nunn agreed with the county’s argument that secrecy is necessary to protect taxpayers from landowners who would ask for more money if they knew it was the government that wanted to buy their property.
“It is to prevent undue speculation, it is to prevent inflation of prices,” Nunn said, explaining why the county should be allowed to vote behind closed doors to buy land. “There are some things that just don’t need to be talked about, dealt with or discussed in public.”
At the same time, Nunn said that county officials must release minutes from meetings closed to discuss or vote on real estate acquisition within two days of adjournment, as the Open Meetings Act requires. They can omit only information that might be used to identify property to be purchased, and must state that a vote was taken, who made the motion to vote and who voted which way, Nunn said.
In February, Bibb residents Lee Johnson, Michael Ryan and Lindsay Holliday filed a lawsuit against the county asking the court to nullify votes taken in August and November 2008 to purchase property for a new courthouse because the votes were taken in secret. They wanted the votes reversed because the public did not learn of the action until after January, when the property’s location was revealed.
The state Attorney General’s office issued an opinion agreeing with the residents that the vote should have been taken in public. Open government advocates, including David Hudson, general counsel for the Georgia Press Association, and Hollie Manheimer, executive director of the Georgia First Amendment Foundation, also have said the law should be read that way. It has generally been suggested that laws mandating open government be interpreted broadly and their exceptions construed narrowly.
The actual statute allows local governments to discuss the future acquisition of real estate in private, but does not directly address their ability to vote or take action on such a matter.
Nunn, who declined to overturn the commission’s votes, said he relied largely on two previous Georgia court decisions to make his ruling.
In one case, he said, courts had determined that there may be instances when a governing body is meeting with its attorney in a closed session and must vote secretly on business being presented at that time. That ruling came even though the law does not specifically address voting during a meeting closed to protect attorney-client privilege.
In another instance a county was sued for voting during a meeting closed to discuss a personnel matter, Nunn said. But the complaint was ruled moot because it did not come until after the Legislature amended open meetings law to expressly require such votes be taken in public.
Virgil Adams, the county’s attorney, said he was pleased with the outcome. The law supports exactly what the commissioners had argued, he said, and he will continue to advise them to follow the law in future proceedings dealing with real estate acquisitions.
“I feel absolutely that it was the correct ruling,” Adams said.
Johnson, and her attorney, Charlie Cox, took some comfort in Nunn’s requirement that the meeting minutes be made available on time and in a fashion that notes a vote was taken during closed session.
“Those are all facts the public needs to know,” Cox said.
“I feel like that’s progress,” Johnson said.
But Ryan and Holliday, neither of whom had hired attorneys, said they were disappointed. Allowing commissioners to vote in secret leaves too much opportunity for back room deals and will continue to breed distrust in government, they said.
“The public is really not being made part of the process at all,” Ryan said. “You don’t find out about it until it’s gone so far you can’t do anything about it.”
Holliday said the argument that taxpayers could be fleeced by landowners falsely inflating the value of their property is trumped by the county’s ability to exercise its powers of eminent domain. And requiring the commission to release minutes several days after they vote is only a small step toward the openness that ought to be practiced, he said.
“The public needed a full meal,” Holliday said. “The judge gave us a grain of rice.”
To contact writer Matt Barnwell, call 744-4251.
