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Documents show no actual threat of litigation

Wednesday, Nov. 6, 2013 8:57 PM
Last updated 9:16 PM
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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.

Comments (9) Add comment
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fishman960 11/06/13 - 10:11 pm
Stacking the deck

The only thing I can glean from this is that someone is trying to prevent Cheek from running.

JRC2024 11/06/13 - 10:21 pm
Same thing I was thinking

Same thing I was thinking fishman90

Riverman1 11/07/13 - 05:00 am
Not So Fast

If the Justice Department is already involved and saying the move is to dilute black voting strength it appears there was/is a concern "pertaining to pending or potential litigation, settlement, claims, administrative proceedings or other judicial actions."

Little Lamb
Little Lamb 11/07/13 - 08:50 am

Let's parse this statement from David Hudson above:

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.

The word "threat" does not appear there. Also, look at the myriad things other than litigation that are available to close a meeting:

. . . to consult and meet with legal counsel pertaining to

1. pending or potential litigation

2. pending or potential settlement

3. pending or potential claims

4. pending or potential administrative proceedings

5. pending or potential other judicial actions

Those last two items are loopholes so big you can drive a Mack truck through them. Cities always have administrative proceedings in the work. Why, cities themselves create their own administrative proceedings, for goodness sake! Yes, the open meetings law is a toothless tiger. That is why no government entity has ever suffered the consequences of breaking this law. They might as well take the law off the books.

David Parker
David Parker 11/07/13 - 09:32 am
The elected running the elections

Fox, meet hen-house

nocnoc 11/07/13 - 09:44 am
Once again

The Voters have been played by DOWNTOWN.

deestafford 11/07/13 - 10:16 am
Let's face it.

All the meetings of every public body in Augusta could be closed because of "potential threat" with Eric Holder as the Attorney General. He is against anything any state in the South wants to do to maintain integrity in the voting process.

Little Lamb
Little Lamb 11/07/13 - 10:44 am
Toothless Law

O.C.G.A. 50-14-6 (2010)
50-14-6. Violation of chapter; penalty

Any person knowingly and willfully conducting or participating in a meeting in violation of this chapter shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $500.00.

Darby 11/07/13 - 04:52 pm
"The only thing I can glean from this is that someone

is trying to prevent Cheek from running."

How on earth did you reach that conclusion? Last time that gadfly ran over in South Carolina, about the only people who voted for him were his immediate family.

When he left Augusta he was spiraling towards kook status.

Don't see him so much as a threat to anyone. More like comic relief.

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