City’s vote to appeal “not illegal” according to Attorney General’s office

 

 

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By Cherie Faircloth, Executive Editor, RCOntheRecord.com

The Georgia Attorney General‘s office might question a Rabun County newspaper article’s slant on how allegedly the City of Clayton voted “illegally” to move to file an appeal on the recent Rabun County Water and Sewer Authority case. 

The large all-cap headline “CLAYTON APPEALS WITH ILLEGAL VOTE”, from the Feb. 23 issue of The Clayton Tribune  might have led their readers to an article that stated the Clayton City Council’s move to file an appeal on the water authority case and a “vote to take such action violates the Georgia Open Records Act.”

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Assistant Attorney General Jennifer Colangelo

But not so, said Georgia Assistant Attorney General at Department of Law Jennifer Colangelo on Feb. 27 during a phone call with RCOntheRecord. Colangelo leads the State of Georgia’s Open Government Mediation Program.

The Georgia Office of the Attorney General website states the Open Government Mediation Program helps citizens and government agencies resolve their disputes without resorting to litigation. It also provides informal mediation to help Georgia citizens with questions or concerns about local government’s decisions to close meetings to the public or governmental responses to Open Records requests that citizens are entitled to under the law.

The original case, City of Clayton versus Rabun County Water and Sewer Authority, involved a court’s decision in regard to the the matter of water control of South Tiger Boggs Mountain customers and the loss of water customers and revenue for the City of Clayton.

“Based on our understanding of the facts without a formal complaint filed, we do not detect a violation under the [Georgia] Open Meetings Act or the Open Records Act.” – Katelyn McCreary, Georgia Attorney General’s Office, communications director

In a statement sent to RCOntheRecord by Katelyn McCreary, director of communications for the Office of the Georgia Attorney General, McCreary wrote “based on our understanding of the facts without a formal complaint filed, we do not detect a violation under the [Georgia] Open Meetings Act or the Open Records Act.”

RCOntheRecord spoke to Assistant Attorney General Colangelo about the attorney-client exception in the [Georgia] Open Meeting Act and also a vote taken in executive session on a legal matter of pending litigation that was not revealed to the public.

The Clayton Tribune’s article, “Clayton Appeals With Illegal Vote,” was read to Assistant Attorney General Colangelo. She said it would also be advisable to review the city charter for the answers. The article was written by Tribune reporter Tommy Culkin.

As written in the Tribune, Baker was quoted “the council opted out to keep the decision from the public, and sited an attorney-client exception.”

Following the Clayton City Council meeting on Tuesday, Feb. 21, City Attorney Mitch Baker spoke to The Clayton Tribune about the vote to appeal the court’s decision and it was taken during an executive session on Feb. 14 workshop meeting. As written in the Tribune, Baker was quoted “the council opted out to keep the decision from the public, and sited an attorney-client exception.” Furthermore, Baker said that when dealing with litigation, clients can “direct their attorneys to act in a certain way”, but that it may be “disadvantageous for that to come out before the attorney has the chance to take that directive.”

Clayton Mayor Jordan Green also confirmed in a phoned interview with the Tribune that a vote to move the appeal was taken in executive session on Feb. 14.  “From the advice of our attorneys, we didn’t disclose it because we were told that we didnt’ have to.”

The Tribune article states Green said the council “actively questioned the attorneys during the executive session to ensure it was in compliance with the [Georgia] Open Meetings Act.”

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David Hudson, Georgia Press Association

As seen in the Tribune article, the Georgia Press Association attorney David Hudson did consult the Tribune and cited that the Clayton City Council was in violation of the state’s [Georgia] Open Meetings Act, specifically Section 50-14-1 (b), that “all votes at any meeting shall be taken in public.” The Tribune also wrote that Hudson said “the attorney-client exception that allows a closed consultation with counsel has no provision that allows a vote in closed session.” Although the act and section are quoted in the Tribune, no other statements were addressed specifically in the article in regard to the issue of attorney-client exception.

RCOntheRecord called David Hudson’s office on Feb. 24 and a call was returned from a secretary stating Hudson would not talk to RCOntheRecord about his comments in The Clayton Tribune because RCOntheRecord was “not a member of the Georgia Press Association.” The Clayton Tribune is a member of the Georgia Press Association. Many Georgia news organizations are not members of the Georgia Press Association.

But in a phone interview with RCOntheRecord, Baker said, “This chapter [council] is not be construed in any way to alter the attorney-client privilege. Reporting back a legal discussion before a case is settled is like tipping your hand, revealing your strategy in a legal matter.”

If our discussion had led to a binding settlement, then our vote and decision would have followed executive session and would have been addressed to all present. That is not what happened here.” – Mitch Baker, City of Clayton attorney

Unless a vote is taken that is binding or unless the council was to reach a settlement agreement in a legal case, I don’t think that the Open Meetings Act applies to what went on here. If our discussion had led to a binding settlement, then our vote and decision would have followed executive session and would have been addressed to all present. That is not what happened here.”

Baker also told RCOntheRecord that he questions the full disclosure of facts presented to David Hudson. “How much information was given to Mr. Hudson regarding the facts of the story? I am interested to know how much information he got,” said Baker.

He said that his decision to not discuss matters of litigation in executive session but in the public forum was correct. “I believe that this is how this section of the Open Meeting Act is interpreted. At the same time, I think this is a noteworthy article and that The Clayton Tribune was trying to report a good media story, said Baker. 

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Sissy Henry, City of Clayton Manager

“When two government entities are involved in a legal battle, it’s good that the public be kept aware of what is going on. I don’t think the story is whether or not the City violated the Open Meetings Act, however.”

Members of the Clayton City Council back Baker’s decision to not make the vote public. City Manager Cissy Henry said she was “confident in Mitch’s [Baker] decision and was standing by that decision.”

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Holly Henry-Perry, Rabun County Clerk of Court

The City of Clayton has filed an appeal in the Rabun County Clerk of Court, Holly Henry‘s office, challenging the court’s decision in the Rabun County Water and Sewer Authority versus the City of Clayton in the matter of control of South Tiger Boggs Mountain customers. Mediation is scheduled for March 27, at 9 a.m.

Baker said the appeal is not a matter of public record. The Clayton City Council could chose to ratify the decision made in executive session by adding it to the March work session and public meeting.

Baker said the appeal is not a matter of public record. 

“Until I hear from the City that ratification of this vote in a public forum is what they want to do, I can’t say how this issue will be addressed any further by the Council. If the City Council wants to put this on the agenda in the regular work session and the regular meeting, then it will be fully discussed,” said Baker.

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Kevin Shields, Publisher The Clayton Tribune

The Clayton Tribune was contact by RCOntheRecord. Publisher Kevin Shields said the newspaper has no comment. The newspaper leadership said a formal complaint has been filed with Georgia Open Government Mediation Program. 

 

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Cherie Faircloth

Cherie Faircloth is the executive editor of Rabun County On the Record RCOntheRecord.com. She is also a freelance writer producing content in Florida and Georgia. 

 

 

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