Conflicting legal opinions on an issue don’t constitute a “real and tangible threat” of litigation for which a governing body may close a meeting, as the Richmond County Board of Elections did last week, two attorneys who work on behalf of open government said Wednesday.
In response to an open records request for documents showing an actual threat of litigation, the city’s General Counsel Andrew MacKenzie and Senior Counsel Wayne Brown provided only legal opinions and existing law as to why the meeting was closed. What they provided didn’t show that, said David Hudson, attorney for Georgia Press Association and The Augusta Chronicle, and Hollie Manheimer, executive director of Georgia First Amendment Foundation.
As a result, the public was denied access to a conversation – between two Democrats, two Republicans and a nonpartisan appointee – about when to hold next year’s city elections for mayor and five commission seats.
“Augusta has a tendency to gravitate toward less information to the public than more,” said former Augusta Commissioner Andy Cheek.
The lack of information has practical implications for Cheek, who is considering a run for mayor next year. If the election is not held in November, the North Augusta resident can’t possibly make the state’s 12-month residency requirement for commissioners, Cheek said.
Georgia Code 50-14-2 allows a meeting to be closed “to consult and meet with legal counsel pertaining to pending or potential litigation, settlement, claims, administrative proceedings or other judicial actions,” quoted Hudson.
“From the documents (MacKenzie) provided that there was no concrete or definite threat of litigation,” Hudson said, suggesting The Chronicle obtain meeting minutes or seek involvement by Georgia Attorney General Sam Olens, whose office substantially revised the Georgia Open Records Act in 2012.
“In order to close a public meeting to discuss pending litigation, there must be a real and tangible threat of litigation,” said Manheimer. “Both the pre-2012 open meetings law and the post-2012 open meetings law require a tangible threat.”
The documents provided by the city law office were copies of Shelby v. Holder, the Supreme Court decision; Georgia Senate Bill 92; a copy of Georgia law on the conduct of local elections; the Justice objection and a letter from Deputy Georgia Attorney General Dennis Dunn on the enforceability of Senate Bill 92.
Dunn’s letter, while citing no actual threat, notes that U.S. Attorney General Eric Holder made a general threat of litigation against states that use the Voting Rights Act change to undermine citizens’ right to vote and that Augusta may face federal litigation if it seeks to enforce Senate Bill 92.
While the reason for closing the meeting is in question, the board is faced with a politically loaded decision. Republican-backed Senate Bill 92 moved Augusta mayoral and commission elections from November to July, but the bill was overruled by the U.S. Department of Justice as an effort to dilute minority voting strength.
The weight of the Justice decision, meanwhile, is uncertain as that part of the Voting Rights Act requiring certain states to get voting changes approved by the Justice Department was overruled this summer by the U.S. Supreme Court.
One of those states is Georgia.
Augusta Commissioner Bill Fennoy said uncertainty about the election dates coupled with proposed precinct changes that will impact 14,000 people “could cause a serious issue on election day.”
“I don’t think the candidates want to see that; I don’t think the Democratic party or the Republican party want to see that,” he said.