But sometimes it’s got to be done.
Lawyers are educated and glib, or they wouldn’t be lawyers. And the vast majority are well-meaning and really do try to look after their clients’ best interests.
Yet, sometimes they go overboard in trying to protect a
client, and other times they’re just flat wrong.
We believe this was the case recently when the Richmond County Board of Elections was convinced by General Counsel Andrew MacKenzie that it could meet in secret to discuss the timing of next year’s local elections.
MacKenzie hung his hat – and all the board members’ hats – on a vague fear of lawsuits over the timing of the elections.
We’ll grant he’s right to be concerned. The matter has become a legislative mess, and the ultimate decision will be highly controversial. A state law moved local elections up from November to July, but the U.S. Justice Department objected under the Voting Rights Act. Well, the U.S. Supreme Court later ruled that portion of the act unconstitutional – which seems to throw the decision back to the county, which acts under the color of state law.
Yep, lots to sort out.
Still, neither mere controversy nor unspecific threats of litigation are sufficient under state law to justify closed public meetings. The threat must be concrete, according to experts at the Georgia Press Association and the Georgia First Amendment Foundation.
Board of Elections members got some bad advice, in our view.
“As a result,” The Chronicle’s Susan McCord wrote, “the public was denied access to a conversation ... about when to hold next year’s city elections for mayor and five commission seats.”
That’s pretty consequential stuff, wouldn’t you think? Prospective candidates want to know when the elections will be. They, and all voters, have an absolute right to know what goes into the decision. They have the right – and, indeed, the obligation as self-governed citizens – to gauge the arguments and decide whether they’re happy with the decision.
Moreover, guess what: Even prospective litigants have that right.
And, oh by the way, just what is it that MacKenzie and the board members are afraid of? That their thinking, their arguments and their decision won’t be defensible? If they figure they’re going to get sued in any event, why hide?
And what if every board, every commission, every council in America conducted itself in this way, with such abject fear of lawsuits? Wouldn’t they have to do most of the public’s business in private?
There’s a word for such a system, and it’s not “democracy.”
Elected and appointed board members, both public and private, need to take with them the courage of their convictions – and the chutzpah to stand up to their own lawyers at times.
To paraphrase the Urban Dictionary’s definition of “manning up,” using gender-neutral language: It’s “to fulfill your responsibilities as a leader, despite your insecurities and constant ability to place yourself in embarrassing and un-leader-like scenarios.”
In other words, leader-up.