Andrew MacKenzie, the city’s general counsel, said the reason for closing the meeting is that the board needed to discuss “a realistic and viable threat” of litigation regarding the elections.
However, there are no known pending lawsuits, one of the reasons allowed under the Georgia Opens Records Act to close a meeting to the public.
The nonpartisan elections are held in November, according to the city charter, and the U.S. Department of Justice objected to a state senate bill last year seeking to move Augusta elections to July.
But a Sept. 23 opinion by a deputy state attorney general raised the possibility of allowing Augusta to enforce Georgia Senate Bill 92.
The opinion, requested by Sen. Jesse Stone, R-Waynesboro, was prompted by the U.S. Supreme Court’s invalidation in June of the Voting Rights Act section requiring Justice Department preclearance of any voting changes that might affect minority voting strength.
MacKenzie wouldn’t disclose what, if any, threat existed, citing “attorney-client privilege.” He has not responded to a request under the Open Records Act for documents showing proof of a threat.
David Hudson, the general counsel for Georgia Press Association, pointed out that the Georgia Court of Appeals held that a meeting cannot be closed based on attorney-client privilege to discuss pending litigation without a “concrete and distinct threat” of legal action.
With none, “it would be improper to close this meeting,” said Hudson, who also represents The Augusta Chronicle as an attorney with the Hull Barrett law firm.
While the city elections are nonpartisan, the dates issue is highly partisan, with the Republican-dominated Georgia legislature pressing to move all local nonpartisan races to July when the state’s general partisan primaries are held. Democrats objected to the change, citing potential voter turnout suppression.
MacKenzie, who wrote a 2012 legal opinion defending Augusta’s scheduling of elections in November, said Thursday if certain “facts” were known, the threat would be obvious, but would not elaborate.
“This is not a close case on whether or not it qualifies for attorney-client privileged discussion,” he said. “They got legal advice today on potential litigation.”
Portions of the closed-door meeting easily audible from the eighth-floor hall of Augusta Municipal Building included conversation about whether the meeting could legally be closed.
The Georgia Open Records Act specifically provides a meeting may not be closed “for advice or consultation on whether to close a meeting.”
Other audible parts of the meeting involved legal strategy should the board opt to follow either Senate Bill 92 or the charter and Justice Department ruling for setting the election dates.
The city’s defense in going against state law might be that it is unconstitutional, a person in the room was overheard saying.
A legal contest between local, state and federal authorities over the dates would be a costly endeavor for a city struggling to balance next year’s budget without dipping into savings, although it would not be the first time the city invited litigation to resolve election issues.
In 2012, the commission sought federal intervention in setting commission and school board district boundaries when commissioners and members of Augusta’s legislative delegation couldn’t agree on them.
A plaintiff in the 2012 federal case, District 4 commission candidate Sammie Sias, said he was unaware of any plans for the group to file suit over the election dates issue.
Augusta Commissioner Joe Jackson, who is considering a run for mayor next year, said he was unaware of any potential for litigation over the election dates.
Jackson, who would become the only announced white candidate for mayor in a field that already includes Sen. Hardie Davis, Helen Blocker-Adams and Commissioner Alvin Mason, said he’d prefer an election sooner than later.
“Let’s try something new,” Jackson said. “Is it going to impact the voter dynamic? I don’t know.”
The elections board’s only nonpartisan appointee, accountant Sanford Loyd, declined to explain on why the meeting was closed to the public.
“It met the requirements of the Open Meetings act,” Loyd said.
The other board members, Republican appointees Sherry Barnes and Chip Barbee and Democratic appointees L.C. Myles and Terence Dicks, agreed the session was legal.
The board unanimously affirmed entering the “executive session” and approved an affidavit afterward certifying the discussion fell outside the realm of open government laws.