Patriotic Citizens are suing Bibb County
Commission over secret courthouse
votes
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Civil Action No.09CV50451 Louis M. Ryan & Lindsay D Holliday, Plaintiffs Pro Se vs Board of Commissioners, Bibb County, Georgia, et al., Defendants MOTION FOR RECONSIDERATION OF FINDINGS AND RULINGS Come now Pro se Plaintiffs Lindsay Holliday and Louis Ryan who jointly submit this Motion for Reconsideration of the Rulings and Findings of this court, said rulings & findings having been made on April 17, 2009, in the Bibb County Superior Court, at a hearing on Defendants Motion to Dismiss, Judge George Nunn, Jr. presiding. At the aforesaid hearing the Court ruled that Defendant's secret/executive session votes to acquire real estate taken on August 5, 2009 at a Properties Committee meeting and on November 18, 2009 at a Committee of the Whole meeting did not violate the Georgia Open Meetings Act. Plaintiffs assert that the court erred in that interpretation of the Act and, further, that the court erred in dismissing Plaintiff's complaint before evidence concerning Defendant's contested actions could be presented. Additionally, Plaintiffs assert that the court erred in not awarding to Plaintiffs reasonable attorney's fees and other litigation costs reasonably incurred as allowed by sec. 50-145(b) of the Georgia Open Meetings Act. A brief in support of this Motion is attached. WHEREFORE, Plaintiffs pray that this Court reconsider its previous rulings and findings and: A) Declare Defendant's contested secret votes to be in violation of the Open Meetings Act; B) Rule that Defendant's stated intention to continue voting in secret to acquire real estate is a continuing issue that is not mooted by Defendant's February 17, 2009 ratification vote; C) Award Plaintiffs reasonable attorney's fees and other litigation costs reasonably incurred; D) Grant Plaintiffs an opportunity to present evidence showing that their position/complaint regarding Defendants failure to make secret meeting minutes promptly available for public inspection was substantially justified and that defendants acted without substantial justification in not comp:ring with the Act's provisions relating to agency meeting minutes. E) Rule that Defendants' failure to make contested secret meeting minutes available in a timely manner effectively tolled the Act's requirement to commence action contesting said failure, within 90 days of the alleged violation. This 11th day of June, 2009. Louis M. Ryan and Lindsay Holliday, Plaintiffs Pro Se CIVIL ACTION No. 09CV50451
Louis Ryan & Lindsay Holliday, Plaintiffs Pro Se vs Board of Commissioners, Bibb County Georgia, et al. Defendants PLAINTIFFS BRIEF IN SUPPORT OF MOTION TO RECONSIDER RULINGS Statement of Facts On August 5 and on November 18, 2008 Defendants, During closed/executive sessions of the Properties committee and the Committee of the Whole respectively, voted to acquire real estate for a proposed relocation of the Bibb County Courthouse. The proposed relocation will be part of an effort to develop/redevelop a large area of several city blocks near the proposed courthouse. Written minutes of said sessions were not made available for public inspection until January 2009 and were also unavailable through Defendant's official web site. Defendants publicly voted on February 17, 2009 to ratify the aforesaid closed session votes. On April 17, 2009, Judge George Nunn, Jr. presided over a hearing on Defendants' Motion to Dismiss at which no sworn testimony or other evidence was formally presented. Before Plaintiffs Ryan and Holliday were given an opportunity to present oral arguments at said hearing the Court effectively announced its rulings and findings. Legal Argument
The Open Meetings Act, O.C.G.A. 50-14-1,et seq., (the Act) "was enacted in the public interest to protect the public - both individuals and the public generally - from 'closed door' politics and the potential abuse of individuals and the misuse of power such policies entail." Therefore, the Act must be broadly construed to effect its remedial and protective purposes. Atlanta Journal v. Hill, 257 Ga. 398, 399 (1987). At the April 17, 2009 hearing the Act was very narrowly construed to allow Defendants to vote (and continue voting) in secret regarding real estate acquisition. The Act, however, only allows executive/closed session discussion of real estate acquisition and discussion, by definition, does not include the official action of voting. Allowing Defendants to take official action/votes in a closed/secret session effectively nullifies the central purpose of the Act which is to protect the public from closed door politics. Defendant Commissioners intentionally and without substantial justification kept secret and withheld from public scrutiny the minutes of the contested closed sessions. The Act requires that the minutes be available for public inspection no later than the next regular meeting of the Bibb Commission but said minutes were not made available until January 2009 - some 5 months after the Aug.5 closed session and about 2 months following the Nov. 18 closed session. Defendants seem to argue that protecting the public from potentially excessive real estate acquisition costs justify their withholding executive session minutes. That possibility, however, is effectively dealt with in the Act itself, which allows the minutes to be edited or portions thereof to be withheld so that the identity of the target real estate will not be revealed. Defendants did just that by referring to "Block A and Block B" - a vague reference which does not identify location - in their Nov. 18 minutes, which were never made available on Defendants' official website and which were not available in printed form until January, 2009. The Act provides a way to protect the public from excess real estate acquisition costs - "the disclosure of such portions of the minutes as would identify real estate to be acquired may be delayed" - but withholding all minutes of the contested secret sessions including the names of the members present, a description of each motion or other proposal made, and a record of all votes violates the Act. Defendants violated the Act by not releasing any written or website displayed minutes until months after the contested votes. Defendants were intentionally and without substantial justification withholding those minutes in order to maintain secrecy about the subject matter underlying the secret votes - a proposal to relocate the Bibb County Courthouse to a new site well away from its current location. Defendants acted to deceive the public by not informing them of official action through timely release of minutes. The Georgia Court of Appeals in Beck v. Crisp County Zoning Board of Appeals, 221 Ga.App. 801, a case involving an agency vote taken in a meeting which had been effectively closed to the public, focused on the defendant's actions which involved misinformation being provided to the public. The court reasoned that an intention to deceive the public could be inferred from defendant's action/misinformation. The Act was written to prevent such conduct by government agencies. In the present case Plaintiffs contend that Defendants acted to deceive the public. Therefore, the April 17 ruling erred, in part, because it did not allow the case to proceed to the introduction of evidence regarding Defendant's failure to make minutes available in a timely manner Further, the April 17 ruling was in error because it failed to toll the Act's 90 day period for filing actions contesting alleged violations of said Act. Otherwise Defendants, and all agencies, can circumvent the Act's purpose by withholding minutes of closed sessions for at least 90 days. Finally, the court erred in its April 17 ruling by not allowing Plaintiffs to recover attorney's fees and other litigation costs. The Act stipulates that such costs are recoverable when a court determines that "an agency acted without substantial justification in not complying with this chapter. (0.C.G.A.,50-145(b). The April 17 hearing and subsequent ruling did not include a finding of substantial justification for Defendants' failure to make minutes available in a timely manner. Nor did said hearing and ruling include a finding that special circumstances existed which precluded the awarding of litigation costs. In the 2003 Georgia Appellate Court case of Evans County Commissioners v. Claxton Enterprise, 566 S.E. 2nd. 399, the Court of Appeals defined the Act's phrase "without substantial justification" as meaning "substantially groundless". Plaintiffs contend that Defendant's actions in withholding minutes was substantially groundless. In the Evans case, the Appellate Court ruled that litigation costs were recoverable whenever a defendant agency, without substantial justification, makes untimely filings of minutes. In our own case, Defendant Commission filed meeting's minutes in a very untimely manner which we Plaintiffs then contested. Defendants have offered no substantial justification for their admittedly untimely filing of minutes therefore Plaintiffs should have been awarded litigation costs. The Georgia Open Meetings Act encourages private enforcement of its provisions by making attorney fees and litigation costs compensable. By not awarding attorney fees and litigation costs in this action which involved, in part, a clear violation of the Act (i.e., the untimely filing of minutes: the court discourages private enforcement of the Act. Private enforcement furthers the Act's purpose of protecting the public from closed door politics and resultant abuses. (Evans v. Claxton, supra) For the above stated reasons, Plaintiffs Louis Ryan and Lindsay Holliday request a reconsideration of the court's rulings and findings at the April 17 hearing on Defendant's Motion to Dismiss. Respectfully submitted this 11th day of June, 2009. Louis M. Ryan & Lindsay Holliday, Plaintiffs Pro Se CERTIFICATE OF SERVICE This is to certify that the undersigned have this day forwarded a true and correct copy of the foregoing MOTION TO RECONSIDER RULINGS and FINDINGS and of that motion's supporting brief by depositing same in the United States Mail, First Class, in a properly addressed envelope with sufficient postage affixed thereon to ensure delivery to: Virgil L. Adams Fickling & Co. Bldg. , Suite 1250 577 Mulberry St. P.O. Box 928 Macon, Ga. 31202-0928 Lee A. Johnson 964 Park Place Macon, Ga. 31201 This 11th day of June, 2009 Louis M. Ryan & Lindsay Holliday, Plaintiffs Pro Se |
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Saturday, Jun. 27, 2009
p.2B
Bibb residents ask court to reconsider ruling in secret land buys Jennifer Burk - jburk@macon.com http://www.macon.com/198/story/760947.html Two Bibb County residents who sued the county commission alleging it violated the state’s Open Meetings Act have asked a court to reconsider its ruling. In April, Houston County Superior Court Judge George Nunn ruled that the commission did not violate the law when it voted in secret to buy land near the county jail for a new courthouse. Residents Michael Ryan and Lindsay Holliday filed a motion for reconsideration June 11, saying the court erred in its interpretation of the law and by dismissing their complaint before they could present evidence, according to court documents. The residents also ask that the court award them reasonable attorney’s fees and litigation costs associated with the lawsuit. Lee Johnson, a third party to the original lawsuit, was not included in the motion. The residents argue that the Open Meetings Act should be interpreted broadly, and, therefore, does not allow votes pertaining to buying property to be taken behind closed doors. The county argues that the act does not specifically say a vote must be taken in public when discussing property acquisition and that commissioners followed the law. In his ruling, Nunn also said the commission must abide by laws requiring that minutes reporting a private vote be released in a timely fashion. Information that may identify the property may be omitted, he said. |
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| Readers Comments below: |
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| thisisridiculous
wrote on 06/27/2009 10:31:07 PM: This is just another example of the hush on 2nd street. They can value our property and require us to pay taxes, yet they want to conduct business out of the light of day. Heck, Chairman Hart has ordered the Secretaries to not bring recording devices into the commission meeting room to record the minutes! This was done with the consensus of the entire board... It's amazing, utterly amazing.... Good luck Doc, but they have the entire assets of Bibb County to use to fight off your valiant effort... ticket
wrote on 06/27/2009 05:43:55 PM:
Who
is benefiting from the sale of this land? Does someone on the
commission owe somebody a favor or will they in some way benefit from
it now or later? Anytime anything as important as buying land comes up, the
county
should be out in the open with it. Doing things in secrecy always has a
bad smell to it. So far no one has bothered to explain why this decison
could not be made public before it was done. The area is a poor, poor
choice for a courthouse. Has anyone taken a look at that area? It might
be a good security issue for the jail, but it will certainly be a bad
security issue for anyone who has business at the courthouse. It would
be a good place to get robbed or mugged anytime day or night. There is
not enough security in Macon to make it safe. COME ON MACON.....YOU
BETTER SPEAK UP OR YOU GONNA BE SORRY. Doc
wrote on 06/27/2009 11:14:58 AM:
The citizens of Bibb could use some Pro-Bono, Pro-Democracy help with this situation. Anyone who can donate some "legal-muscle" here (for a possible appeal) may contact Lindsay Holliday at 742-8699.
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