Attorney general's office responds, but Muscogee County School Board dispute continues

Whether the Muscogee County School Board violated the Georgia Open Meetings Act last month still is being debated, even after the state's attorney general office has responded to the allegation.

Board attorney Greg Ellington of the Columbus law firm Hatcher Stubbs Land Hollis & Rothschild LLP and District 8 representative Frank Myers read the same July 23 letter from Assistant Attorney General Amanda Jones, but they have opposite interpretations.

"The letter supports the appropriateness of the executive session and the previously stated position that there was no violation of the Open Meetings Act," Ellington told the Ledger-Enquirer in an email Tuesday.

Myers insists the letter agrees with his contention that the June 15 closed session was convened for an invalid reason and "gave the school board's lawyer instructions on how to proceed" but didn't respond to his allegation that the board also conducted an illegal vote during that closed session.

However, according to the attorney general's counsel, Daryl Robinson, neither side of this dispute is correct because the office didn't offer its opinion in the letter at all.

"The letter does not make a definitive determination of whether there was a violation or not," Robinson told the L-E in a voice mail Monday. "The purpose of the letter, as often is the case in these matters, is instructive and prophylactic for the future to try to give a little guidance, should the situation arise again."

In a July 7 letter to Georgia Attorney General Sam Olens, Myers alleged the board violated the state's open meetings act. Myers accused the board of conducting an illegal closed session during its June 15 meeting to discuss alleged overbilling by a vendor who serviced the air conditioning units on the district's school buses. He alleged the board violated the open meetings law in two ways: convening the closed session for an invalid reason and taking a secret vote during the closed session.

The agenda for the June 15 meeting states that the closed session was called for three reasons: discuss a property matter, discuss legal matters and conduct a student discipline tribunal appeal. Myers contends one of the legal matters discussed in the closed session didn't comply with the open meetings law.

In his letter to the attorney general, Myers referred to a conversation in an earlier closed session, officially called an executive session:

"For background," Myers wrote, "when the Superintendent first announced his decision to the Board that he intended to seek criminal prosecution in April of this year, I specifically asked legal counsel Greg Ellington why this matter was subject to an Executive Session. Ellington responded by saying this was due to the (alleged, Myers wrote in parentheses) threat of litigation from the company that the Superintendent was in the process of attempting to prosecute."

Myers, a lawyer in private practice, cited a 2001 Georgia Court of Appeals case, Claxton Enterprise vs. Evans County Board of Commissioners that ruled " a meeting may not be closed to discuss potential litigation under the attorney-client exception unless the governmental entity can show a realistic and tangible threat of legal action against it or its officer or employee, a threat that goes beyond a mere fear or suspicion of being sued."

Myers also contends that, in the June 15 closed session, board chairman Rob Varner of District 5 "went around the room and asked each board member to vote on whether or not to 'tell the police to file charges.' The results were tallied, and a decision was made on the basis of the vote."

According to Olens' memo April 17 to state agencies, which Myers cited in his letter to the attorney general, the only votes Georgia law allows governing bodies to conduct in closed session are "to authorize settlement of matters in litigation and for preliminary votes on real estate transactions."

Myers wrote, "I protested when this vote was proposed, and was told this was 'only' a 'consensus.' I refused to vote in this Executive Session, and signed the attending affidavit for this meeting as 'under protest.'"

Ellington, in his July 9 letter to Olens, wrote, "Providing law enforcement with documentation and authorizing law enforcement to investigate certain conduct does not require a public vote."

Asked to cite where in Jones' letter his opinion is supported, Ellington didn't respond before deadline. Jones, however, did write in her letter, " it sounds like there is a potential civil matter that is related to the criminal matter. In this instance, it is appropriate for the School Board to go into executive session to discuss whether to pursue civil litigation against this vendor."

Myers offered these sentences from Jones' letter as evidence that the attorney general's office supports his allegation:

"When an agency is a potential plaintiff in a civil action, the agency's attorney may provide legal advice on whether to pursue litigation," Jones wrote. "That is an appropriate discussion to have during executive session. When an agency is a potential defendant in a civil action, the agency must have an ante litem notice or other equivalent documentation of the threat of litigation before their discussions can take place in executive session."

Myers said those exceptions didn't exist June 15 and Jones is "completely agreeing with my point."

Ellington wrote Monday in an email to the L-E, "The Attorney General's letter points out that there are different reasons that a governmental body may appropriately go into an executive session for a legal matter. The district is pleased that the Attorney General's office has clearly recognized that 'pending or threatened litigation' is not the only permissible reason to go into an executive session for a legal matter. The district takes its responsibilities under the Open Meetings Act seriously and will continue to do so."

Myers told the L-E, "If the purpose of the June 15 (closed session) was to discuss our civil remedies, don't you think that's what we would have voted on? We didn't. We voted on whether to prosecute.

"You've got to have a valid reason to close the doors, the attorney general has now warned them, and we will monitor the situation."

Myers isn't satisfied with how the attorney general's office scrutinized the matter, responding without interviewing any of the participants. "I would expect more from them than just reviewing a couple of letters."

Robinson explained to the L-E in his voice mail, "The investigation did in fact consist of the rather extensive information furnished to us, both by the government's attorney and the complaining party. So our first effort is to ensure compliance rather than seek punishment or retribution, and we think we've done that satisfactorily in this case."

The Ledger-Enquirer shared the documents related to this dispute with David Hudson, counsel for the Georgia Press Association and a partner with Hull Barrett PC of Augusta.

"The office of the Attorney General has to pick and choose which open government disputes it will address by correspondence, and which ones require more action, even litigation," Hudson wrote in an email Tuesday to the L-E. "In this instance, the Attorney General's office has responded by giving guidance for the future. There is no way to go back and redo the meeting that was previously closed to the public. I surmise that the AG Office feels this is sufficient action given the circumstances and lack of irreparable harm."

Hudson added, "In my experience, the Attorney General's office is actively involved in promoting and enforcing the Open Meetings Act and the Open Records Act and is a positive force for open government in our state."

Violations of the Georgia Open Meetings Act can lead to a $1,000 fine for a first violation and a $2,500 fine for each additional violation within 12 months. Attorney's fees also can be awarded. The standard of proof for a civil violation is negligence. The standard of proof for a criminal violation, a misdemeanor, is willfulness.

In an email Tuesday to his fellow board members, Myers suggested the board invite Stefan Ritter, executive director of the Georgia Government Transparency and Campaign Finance Commission (also known as the Georgia Ethics Commission), to give members "a refresher course" on the Open Meetings Act.

"I believe such a presentation should be held at either a work session or regular meeting," Myers wrote, "which would send the message to the public that the board takes these issues very seriously."

Varner wasn't reached for comment Tuesday.

This story was originally published July 28, 2015 at 5:01 PM with the headline "Attorney general's office responds, but Muscogee County School Board dispute continues."