Most of the Madison City Council work session on May 3 was devoted to a refresher course on Georgia’s open meetings and open records laws, facilitated by Rusi Patel of the Georgia Municipal Association.
Most of the discussion centered on relatively basic procedures, but some detailed explorations of topics even had Patel scratching his head for answers.
Patel established a foundation for the discussion by discussing which aspects of the city’s functions were governed by the open meetings law, such as the Planning & Zoning Commission and other council-created boards. However, those rules don’t necessarily apply to internal departments such as police and utilities.
One of the primary decision-making requirements is for three council members to represent a quorum.
Patel advised that most meetings needed to be advertised in Morgan County’s legal organ. Still, exceptions existed, such as meetings held with state officials at state offices or gatherings of council members to inspect public facilities.
Patel cautioned council members against traveling as a single group because city businesses are bound to arise, and discussing them on a road trip is technically illegal.
According to the open meetings law, meetings must be held in the largest available room, and sometimes, even bigger venues are required if the topic affects a large number of citizens or becomes especially controversial.
Patel said that one Georgia city decided to move its budget meetings from a council chamber similar to Madison’s into a room with only six seats for interested stakeholders, a clear violation of the spirit of the law.
According to the open meetings law, video and sound recording equipment must be allowed. Still, the city can designate an area for cameras as long as they have an unobstructed view, a holdover from the days when television cameras were quite large.
“Often, the law doesn’t keep up with technology,” Patel said.
Council members who cannot attend a meeting are allowed to use teleconference technologies twice a year to participate in the decision-making process. Additional teleconference attendance is allowed with a doctor’s note or for active-duty military personnel.
Patel also cautioned the council about email communications, observing that some cities skirt open meetings law by discussing issues via email, which can result in media outlets or citizens filing open records requests to view email chains, sometimes an embarrassing outcome for its representatives. The same rules apply to text messages.
Social media has created a new minefield for municipal and county governments, even requiring the United States Supreme Court to get involved.
Patel related the story of James Freed, the city manager of Port Huron, Michigan, who established a personal Facebook page and posted the usual family photos and the like. He also sometimes discussed Port Huron’s COVID-19 policies on the page.
One of his constituents, Kevin Lindke, was so critical of the COVID policies that Freed began deleting his comments and then blocked him altogether.
Lower courts ruled that Freed had the right to do whatever he wanted on his page, but the U.S. Supreme Court unanimously vacated the judgment and remanded the case back to the 6th Circuit to apply the Supreme Court’s test.
Justice Amy Coney Barrett said a decision in Lindke’s favor would require him to show that Freed possessed the authority to make posts on behalf of the city and exercised that authority in his posts.
Patel said in light of the ambiguities in the current law, “it is wise to keep personal stuff personal and professional stuff professional or else expose yourself to liability.”
Closed meetings, commonly called executive sessions, are permitted as long as they follow an already established open meeting. Council must announce the reason for entering a closed meeting—discussions of litigation, real estate dealings, and personnel matters—and must only deal with issues announced when the executive session is entered.
If another issue arises in the executive session, the council must return to the open meeting, announce a new reason for the closed meeting, and then return to it. Votes taken in executive sessions are binding once the public vote is held.
District 5 Council member Betsy Wagenhauser asked about the consequences of making items discussed in closed meetings public.
Patel said that violating the confidentiality of the executive session would likely violate a council member’s oath of office and could hurt the city and, in turn, its taxpayers if the result of the violation affected a city contract or a pending lawsuit. District 1 Council member Eric Joyce asked a question that Patel struggled to answer when he inquired about council members sitting in on executive sessions called for by other boards, such as the Downtown Development Authority, which deals with numerous real estate transactions.
“That is a great question,” Patel said.
Patel sensed that the member's presence might interfere with the conversation if a council member didn’t have an official assignment with the board.
Patel said executive session minutes must be taken, but they are not subject to open records laws. However, they are subject to court inspection.