Transcripts from the Defendants Motion to
Dismiss 4-17-09
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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 to dismiss, held on April 17, 2009 |
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| IN THE SUPERIOR COURT OF BIBB COUNTY STATE OF GEORGIA LEE A. JOHNSON, LOUIS M. RYAN and LINDSAY HOLLIDAY, Plaintiffs, vs. BOARD OF COMMISSIONERS, BIBB COUNTY, GEORGIA, AND FORMER CHAIRMAN CHARLES BISHOP, AND CURRENT COMMISSIONERS SAM HART, JOE ALLEN, ELMO RICHARDSON, BERT BIVINS AND LONZY EDWARDS, Defendants. CIVIL ACTION FILE NO. 09CV50451 Motion to dismiss, held on April 17, 2009, before HONORABLE GEORGE F. NUNN, JR., stenographically reported by Janet S. Paris, Certified Court Reporter B-1835, State of Georgia. APPEARANCES: For Plaintiff Johnson: For Plaintiff Ryan: For Plaintiff Holliday: For the Defendants: CHARLES E. COX, JR. Attorney at Law Pro se Pro se VIRGIL L. ADAMS D. JAMES JORDAN Attorneys at Law PARIS VENTURES, INC. - (478) 988-9053 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: For the record, my name is George Nunn. I am a Superior Court Judge from Houston County. I've been asked to come and hear this matter that involves, the plaintiffs are Lee Johnson, Louis Ryan, and Lindsey Holliday. The defendants are the Board of Commissioners of Bibb County and the members named. I think we actually were probably brought here on the defendant's motion to dismiss, and subsequently the plaintiffs have filed an amended complaint asking for additional relief. I don't have any strong feeling about who wants to go first, but Mr. Adams, you were, it was your motion to dismiss, I think, that initially led to this hearing, and so I will let you go first and say whatever you want to say or you or Mr. Jordan, and then I'll let Mr. Cox speak on behalf of the plaintiffs. MR. ADAMS: Thank you, Your Honor. May it please the Court, Mr. Cox for the plaintiff. Your Honor, the facts in this case are basically undisputed. But before I get into them, I do want to point out to the Court some misconceptions, misstatements in the statement of facts of the plaintiff. I guess this would be Plaintiff Lee 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Johnson in response to the motion to dismiss. These facts are totally irrelevant to what we're here about today, to the real issue. But I do think I need to point out our concerns just so the Court would have the benefit of that information. In their response to the statement of facts they initially state that on July 29th, 2008, Connie Mack Darnell organized Center City Investments, LEC, and then a few days later the Properties Committee of the Board of Commissioners met in a closed session. seemed to point out that there's some connection between those two. They What I wanted to make sure they understood and the Court understood, Mr. Darnell is a real estate broker licensed in the state of Georgia. He was hired by the Bibb County Board of Commissioners to actually go out and negotiate with the property owners to purchase the property. When and why and for what reason, he set up a company which he happened to set up a few days or a week or so before the initial vote in closed session to buy this property, we have no information about that. There's no connection between those two. But the plaintiffs appear to set out that there's some kind of sinister motive or connection. There is none 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that we are aware of at all. In fact, we were not even aware of Mr. Darnell, when he formed that company, until I saw it in the brief. Also they point out on page 1 in the statement of fact that Mr. Darnell presented the possible, the properties for the possible location of a Courthouse to the Bibb County Board of Commissioners. That was not true. The property had already, the properties had already been identified. Mr. Darnell was simply hired as the broker to negotiate the deal. So just for the Court's benefit I wanted to point that out. However, those facts are totally irrelevant to what we're here about today. The issue -- the facts are simple and they're undisputed. On August 5th, 2008, the Board of Commissioners voted in a closed session to acquire future real estate for the purposes for locating a courthouse. The Board of Commissioners then voted again on November 18th, 2008 in a closed session to acquire property, additional property for the Bibb County Courthouse. Again, Mr. Darnell was the broker who was authorized by the Board of Commissioners to do that. And the way the transaction was to take place, Mr. Darnell was going to buy the property. The 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 property would not be bought in Bibb County's name and the properties would later be assigned to Bibb County. Well, why did we do it that way? For the simple reason that if the word got out that Bibb County was buying property, then Bibb County would not be in a position of protecting the taxpayers by getting appropriate and fair prices for the property because everyone would know that the County was out there buying it. The same reason that we're going to talk to the Court about the purpose of the Open Meetings Exception with respect to being able to vote in a closed session on real estate. It's to protect the taxpayers. that way. So that's why the transaction was set up But the issues In this case were simple. First of all, does the Georgia Open Meetings Act permit taking a vote in a closed session regarding the future acquisition of real estate? If so, there's no violation of the Open Meetings Act and the plaintiffs' complaint must be dismissed. Second issue is even if it is not permitted now that there has been a ratification -- and I'll talk about that in a minute -- the Board of Commissioners met in a duly advertised meeting 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 February 19th of this year and ratified their votes that were taken in closed session on August 5th, 2008 to purchase the property for the location of a new courthouse and also the ratification of the November 18th meeting of 2008. So if there's been, even if there were violations, which we strongly submit to the Court that there was not, does the ratification of the action taken render the plaintiffs' complaint moot? We submit to the Court that it does. The third issue is the plaintiff's challenge with respect to the August 5th meeting time bar since it was not filed within 90 days as required by the statute. On the first issue, Your Honor, I think what we initially have to do is look at the exceptions that are pertinent in this case under the Georgia Open Meetings Act. We agree that the purpose of the Georgia Open Meetings Act is to promote open government. But the legislature carved out several exceptions because they understand that some matters, governments, in order to be able to function properly, they have to be able to consult in private and make decisions in private in order to again protect the taxpayers and fulfill their responsibility to the taxpayers. So there are 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 basically nine exceptions carved out in Section 50-14-3. And the Court may have it. I want to give Court a copy of the statute. Your Honor, if you look at specifically Subsection 4, which states that meetings, that this chapter shall not apply to the following. In other words, these are situations in which you can have a closed meeting. Meetings when an agency is discussing the future acquisition of real estate except that such meetings shall be subject to the requirements of this chapter for the giving of the notice of such a meeting to the public and preparing the minutes of such a meeting. Now, so this section is saying you can go into a closed session, but when you do it's got to be advertised. No dispute about that. And you have to prepare the minutes. And that's critical. You have to prepare the minutes. Now, why is that critical? It is critical because when you look at Section 50-14-1 of the Georgia Open Meetings Act, specifically Subsection 2, and I'll direct the Court's attention to the bottom of that page there, the last sentence. This is the requirements for minutes, what minutes must contain under the Georgia Open Meetings Act. Said minutes 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shall as a minimum include the names of the members present at the meeting, a description of each motion or other proposal made, and a record of all votes. That's what the minutes have to -- the minutes as a minimum must contain that. So in other words, you can put discussion in there if you want to. Discussion is not required. But what the minutes have to contain is who was present, who made the motion, what motion was made, and a record of any votes taken. So why then would the legislature make an exception to the Open Meetings Act to allow governments to go into closed session to discuss the future acquisition of real estate, require governments to take minutes of that meeting in closed session, require that those minutes have to include who was there, any motion made, and any vote taken, if the legislature did not contemplate that a vote would be taken in closed session with respect to the future acquisition of real estate? Logic dictates that it's totally illogical to even assume or believe that no vote can be taken in a closed session with respect to real estate. It doesn't make any sense. This is the only exception under the Georgia Open Meetings Act in which minutes are required to be 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 taken, the only exception. And again, logic just dictates. Why do you have to record a vote in a closed session if a vote is not contemplated? Makes no sense, Judge. Makes no sense. If you contrast this with, if you look at the Exception Number 6 in that same statute, Judge, that deals with personnel matters. It states specifically, The vote on any matter covered by this paragraph shall be taken in public. Now again, why would the legislature specifically say with respect to personnel now, you can go into closed session, but you've got to take that vote in open session? If they had intended for the vote not to be taken in closed session with respect to real estate, they would have put that in there, but they didn't. I'm not sure if the Court has this, but there was an amicus brief filed by James Elliott. Mr. Elliott states in this amicus brief that he has practiced law in the field of municipal law more than 20 years in Middle Georgia. He's lectured at conferences and seminars on various local government law issues, including compliance with open meetings and open records statutes and serves as an adjunct professor of local government at Walter F. George School of Law at Mercer University. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On the second page of Mr. Elliott's amicus brief, he contrasts the language of the personnel exception to the Open Meetings Act with the statute that we're here about today on the future acquisition of real estate. And what he states on page two here, he cites a Latin maxim that the Court should take note of, and I hope I'm pronouncing this correctly, expressio unius est exc2usio a2terius, the statement of one thing suggests the exclusion of all others. Stated alternatively, inc2usio unius est exc2usio a2terius, to include one thing is to exclude all others. In other words, by affirmatively providing that votes cannot be taken in closed session related to personnel matters, the General Assembly implicitly provides that voting can occur in other closed session matters. And the Court, the Court can't write in an exception to the Open Meetings Act which provides for a vote to be taken in public -- In closed session with respect to real estate. The Court can't write that exception in the personnel exception. Can't do that. You have to take it the way the legislature wrote it. And the way the legislature wrote it is, it intended with votes with respect to personnel 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 matters to be taken in public, but with respect to real estate matters for them to be taken in a closed session. And why? The reason is again to protect the taxpayers, to protect their people who are here complaining today. Can you imagine what situation government would be in if they were first of all not allowed to go into closed session to discuss acquisition of real estate, not allowed to take any vote in closed session with respect to real estate? So then everyone would know that, guess what, Bibb County, Houston County, Fulton County, whoever, they are getting ready to buy this property. Well, let me see what I can do. Let me see how I can inflate the prices on my property. I'm a developer. Let me go in and buy up that property In that neighborhood so now Bibb County will have to deal with me and I can gouge the County and gouge the taxpayers. That's the purpose of all this. I would strongly submit to the Court that if Bibb County had gone out and just paid horrendous prices for this property, these very plaintiffs would be complaining, How could you spend the taxpayers' money that way? So the purpose of all this is actually to protect the very people who are 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complaining here today. And we submit, Your Honor, that there was no violation of the Open Meetings Act because this exception allows exactly what took place. That is, a vote in closed session. There's no other way to read this exception. The second issue, Your Honor, is even if the vote was not authorized, which again, we submit that it was, that the action of the Board of Commissioners In ratifying both of the votes taken at both of those meetings in a duly advertised meeting on February 19th of this year renders the complaint filed by the plaintiffs as moot. And we would cite to the Court the case of Schoen vs. Cherokee County. the Court a copy of that. Let me hand Your Honor, this was a case where there was a complaint about a violation of the Open Meetings Act when the county commissioners met in closed session with their attorney to discuss a legal matter. And there was an allegation that there was a vote taken, although the commission denied that they voted. But what the Court said in that case is that they agreed with the trial court that the subsequent actions taken by the board in reaffirming or ratifying their vote rendered the issue moot because there was -- to do anything else would have no practical effect on 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the issue before the Court at that time. same thing that we have here. That's the Now, the plaintiffs claim that the action has not been rendered moot, and I'm not sure if I follow their argument. But they seem to say, well, the commission didn't make the minutes public until January of this year. Well, if you go back and look at that exception under the Open Meetings Act with respect to the future acquisition of real estate, it states that the minutes with respect to the identification of property to be acquired can, the pUblication of those minutes can be delayed until you either buy all the property, complete the transaction, you terminate the transaction, you abandon the transaction, or there are court proceedings that require the publication of it. So the minutes were never supposed to be available until at least the property had met one of those criteria. And in this case there were multiple pieces of property to be purchased, 29 or 30 pieces of property. So the property had not -- the transaction had not been completed and still has not been completed. But in January of this year, the Board of Commissioners, because word was starting to get out, 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the people who were selling the property were starting to ask about it and word was starting to get out. They went ahead and made it public at that time, and then there was an Open Records request to get those minutes. The property that was voted on to be purchased in November 18th of 2008, that was not actually consummated. That was abandoned. So as soon as that was abandoned, those minutes were made available as the statute requires. So I'm not sure what the argument of the plaintiffs are with respect to why the action of the Board of Commissioners reaffirming their votes on February 19th of this year does not render this moot. We submit that it actually does. There is no controversy left. The third issue, Your Honor, is whether the fact that the complaint with respect to the vote on August 5th, 2008 should be time barred because it was not filed within 90 days as required by the statute. And I believe it's a 90-day requirement that's required by statute. And the plaintiffs somehow argue that the County set this all up just to avoid -- just to create a situation where the 90 days would run and avoid having to turn over the minutes and therefore prevent 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the plaintiffs from being able to file their response within the 90-day period. That's ludicrous. The statute says you don't have to publicize the minutes until you either complete, abandon THE COURT: Excuse me, Mr. Adams. Someone is trying to call me on the cell phone. have no idea what this is. (DISCUSSION OFF THE RECORD) I MR. ADAMS: But Your Honor, what I was indicating with respect to the 90-day requirement is the statute says you don't have to publish the minutes until you've either completed the transaction, terminated it, or abandoned it. So Bibb County did not have to turn over these minutes and publicize this. So the 90-day period ran anyway. Now, if plaintiffs don't like the statute, that's not our fault. But that's what the statute says. So the 90-day period did run with respect to that. Also, Judge, as you mentioned earlier, the, I think Plaintiff Johnson filed an amended complaint and in there asked for an award of attorney's fees. Now, the statute Section 50-14-5 says that the Court can award attorney fees, but you cannot award attorney fees unless there is a finding that Bibb County in this case acted without substantial 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 justification. First of all, we submit there was no violation. Secondly, there's absolutely no evidence that Bibb County did not act without substantial justification. If you just read the statute itself, as we've said, it's the only statute that as I've said, requires that minutes have to be taken in closed session, the only exception, the only one that requires that. The only one that you have to take minutes is because there has to be some record of what goes on in the closed session and it has to be a record of the vote taken and who voted for what and who made certain motions. That's the only exception that requires that. So because that is the case, Bibb County certainly had substantial justification when it voted to go into closed session. We would also like to submit to the Court an affidavit, the affidavit of Elmo Richardson, Jr., who is a member of the Bibb County Board of Commissioners. And what this affidavit states, Your Honor, is that Mr. Richardson, he says, I'm a member of the Board of Commissioners of Bibb County where I have served representing District 3 since September 24, 2002. As a member of the Bibb County Board of Commissioners I'm familiar with the usual practice 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and procedure for the Board or any committee thereof to enter into a closed executive session for the purpose of discussing certain matters which are allowed to be discussed in a closed meeting under the Georgia Open Meetings Act. It is the usual and normal practice and procedure for the Board of Commissioners to rely upon the advice of the county attorney with respect to all issues related to the Georgia Open Meetings Act, including what matters can legally be discussed in a closed meeting and what action, if any, can be taken in a closed meeting. I was present during the property committee of August 5th, 2008 and the committee as a whole on November 18th, 2008, during which there was a vote taken in closed executive session regarding the future acquisition of real estate. In both instances the Board of Commissioners relied upon and followed the advice of the county attorney in determining if it was appropriate to enter into a closed executive session and take a vote with respect to the future acquisition of real estate. That's whose advice the Board of Commissioners relied on. They relied on my advice that they could take the action that they took in the closed session. And I submit to the Court as I already have that that 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is perfectly legal and allowed under the Real Estate Exception to the Georgia Open Meetings Act. There is substantial justification for what the Board of Commissioners did. There is no basis for any award of attorney fees. This is absolutely crystal clear, Your Honor. We don't know how else to do it. I guess the plaintiffs, if Your Honor follows the r~asoning of the plaintiffs, I guess what would happen in a public meeting where the Board of Commissioners have just discussed a real estate matter, a future acquisition of real estate in closed session, I guess at a public meeting, it would go something like this: That thing we talked about in closed session, we vote to do it. Let's do that thing that we talked about in closed session. That's the only way I can figure it can go. But that makes no sense. The only logical reasoning, the only logical process is you can go into closed session to discuss future acquisition of real estate. Somebody can make a motion to acquire the real estate. The Board of Commissioners or whatever governmental agency can vote to acquire that real estate. You can keep those minutes that identify that property that you're going to purchase. You can keep those minutes separate and private until 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 such time as you've completed the transaction. Then you let the public know. It's not that you don't ever let the public know about it. It's that you temporarily keep them from knowing about it just so that you can protect the public by making sure that you don't waste taxpayers' money. That's it, Your Honor. That's the only logical reading of that statute. And we would urge the Court to find in favor of the Defendants to dismiss the plaintiffs' complaint. Thank you, Your Honor. THE COURT: All right. Mr. Cox. MR. COX: Good morning, Your Honor. represent Plaintiff Lee Johnson and the other two plaintiffs are, remain pro se in this action. I just wanted to be clear about the scope of my representation in this matter. Go back and address some of the points made by Mr. Adams. I When you look at the open records meetings or Open Meetings Act, the Open Meetings Act is to be construed broadly. The exceptions are to be construed narrowly. And much of the facts in this case Mr. Adams and I agree on. Much of the case law that's been cited we agree on. We've come to different conclusions about what all that means. And the first issue that Mr. Adams laid out is 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can you vote in a closed session to purchase real estate. And he pointed to the exception at 50-14-3, subparagraph 4 as supporting his argument that such a vote can be taken in a closed session and cited the Latin phrase that Mr. Elliott put in his brief which translated, The statement of one thing suggests the exclusion of all others. When the Court looks at this exception, it starts off talking about discussing the future acquisition of real estate and then it talks about the commission's meeting have to maintain minutes. Provided however the disclosure of such portion of the minutes as would identify the real estate to be acquired may be delayed. The identity of the real estate that they are talking about prospectively to acquire in this meeting is the only thing that may be withheld from the pUblic. It does not mention the word vote at all in this session, in this section. And quite honestly, the failure to mention the word vote when a session lS talking about discussing future acquisition, not votes to take, to actually acquire property is significant. I think -- I actually come to the exact opposite conclusion of Mr. Adams, that this clearly indicates 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that votes to acquire real estate are to be taken in public. And the reason that the property can be, the identity of the property can be withheld is so that when that vote is taken there is clearly identified somewhere in the minutes of the commission in closed session the specific property they are voting to acquire. I agree the point is that the taxpayers want to ensure that their taxpayer money is protected. And if the Open Meetings Act is read the way Mr. Adams suggests, acquisition of real estate is completely exempted from the provisions of the Open Meetings Act. And this case is actually a good example of how that can go wrong if the Court accepts Mr. Adams's suggested reading of the statute. In that we have the meeting on August 5th, 2008 where the commission votes to acquire real estate in their closed meeting. That is not disclosed, neither -- not just the identity of the real estate. Nothing about that meeting is disclosed until sometime in January 2009. If the Court accepts Mr. Adams's reading, that means that there is no way that anyone can bring that August 5th, 2008 meeting under the coverage of the Open Meetings Act. That's clearly not what is contemplated by this exception. Because if you 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accept Mr. Adams's reading, then a commission can vote in a closed session to acquire real estate. Whether it takes 90 days or more to acquire it or for whatever reason, the 90-day period extends, then no person can ever challenge that under the Open Meetings Act. And that is simply not what is suggested by this limited exception to the broad coverage of the Open Meetings Act. Mr. Adams argued about the ratification of the August 5th, 2008 vote when the commission voted in February of 2009 to ratify that action. Ms. Johnson, Plaintiff Johnson is not arguing that the August 5th transaction is somehow void. I think that as far as whether or not that transaction can be attacked at this point is moot, the purchase of that property. What is not mooted by the commission's ratification vote on February 17th is the continuing issue of whether there is established practice and a valid intention to continue that practice of voting in secret to acquire real estate; whether that is in fact legal under the Open Meetings Act. Attached to the pleadings is the position of the State Attorney General that that is not legal. And the State Attorney General is the official charged with enforcement of the Open Meetings Act. So I 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respect Mr. Elliott. He and I have worked together. I respect Mr. Adams and the opinions he expresses, but the exact opposite opinion has been expressed by the State Attorney General. That's the continuing issue in this case, Your Honor, is the legitimacy of the commission to continue to vote in secret to acquire real estate and the continuing issue of what the minutes must contain and when they must be disclosed. Because the commission's viewpoint is that the minutes, all of the minutes can be withheld until the property is, until that transaction is consummated. That clearly is not what is set forth in the exception. It's only the identity of the property that can be withheld from the public, Your Honor. The issue of mootness does not address those continuing issues, Your Honor. And I addressed that in my response brief, that this clearly is an issue that is likely to continue. And I don't think the commission backs away from the stance that they intend to follow this practice in the future unless there's a Court ruling that tells them that that is not a proper interpretation of the law. So clearly this issue has not been mooted by the February 2009 vote. 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The amended complaint that was filed, Your Honor, simply, the primary purpose was to make clear that Plaintiff Johnson was seeking declaratory judgment relief in an injunction from continuing violations or continuing meetings in violation of the Open Meetings Act. I think that is, was asked for in a pro se complaint, but on behalf of Plaintiff Johnson, I wanted to make clear that was being sought. And that's the primary purpose of the first amended complaint. In my prayer for relief I did include a request for any relief that is authorized under the Open Meetings Act, which in some occasions includes the award of attorney's fees and reasonable expenses of litigation. That's an issue for another day, quite honestly. This is a motion to dismiss, and whether or not the commission would substantially justify is an issue for another day, I would submit, Your Honor. don't have any further argument unless the Court has questions for me about this matter. THE COURT: No, not really. Let me just make some comments, because I have looked at your briefs and your pleadings. I've read the cases that I have been cited. I've read another case or so that I 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 found. And here's the way I see this. I think first off that it seems clear to me that the statute -- I'm trying to talk and look at the same time. That the statute does allow for the commission or any other public governing body to go into closed session, to what? Deal with is the term I will use right now, real estate, okay. And you get into this argument about voting. And I'm looking for the cases that I had set aside and brought with me, Schoeing, Schoen, however that is pronounced, that was one of the cases that was cited by the defendants, I believe. I had all those cases right here. And that actually was a case I believe that dealt with attorney-client privilege, which was a separate exception not listed on those nine, but in a separate statute. And it didn't say anything about voting in that exception either. But the Court said, quoting from the case, Moreover a governing body discussing pending litigation with counsel must necessarily be permitted to decide whether to accept or reject a proposed settlement agreement even if it incidentally involves the taking of a vote regarding the litigation that involved the question of whether the matter underlying the litigation will be brought up again 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 during a public meeting. Each of these matters comes within the Act's exception. So that was a case where they said it's all right for them to take a vote. Sometimes that just has to be done, those kinds of things have to be done. Another case that I found actually just last night I think I was looking. And it's Brennen vs. Chatham County, 209 Ga. App. 177. And this was interesting because this dealt with the personnel exception, but it took place prior to the amendment that added that provision that said your vote's got to be public. And the issue was here that an individual had been terminated and dismissed in a closed session where they took a vote to dismiss him. And he said and complained that they had no right to do that. And it says, This chapter -- it's quoting the statute. It says, This chapter shall not apply to meetings when discussing or deliberating upon the employment, hiring, disciplinary action or dismissal or performance of a public officer or employee. We note that an amendment to that section now requires that any vote affecting any of the issues contained in that section be taken in public and minutes of the meeting be made available. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This amendment which became effective April of '92 was not in effect at the time relevant to this litigation. Accordingly, the vote taken in May of '91 was proper. So that says, it didn't say that you had to vote in public. And it was perfectly proper to do it under those circumstances. And I think the argument that has been made that there is at least one of those exceptions where it says you've got to vote in public. You can't vote in a closed session. And it seems to me that that authorizes and the public policy behind allowing governmental entities to take votes and to purchase real estate and such as that in closed session is exactly as Mr. Adams has described. It is to prevent undue speculation. prices. It is to prevent inflation of And I would say to the plaintiffs that even though you don't want to hear, you don't agree with maybe what I'm saying. But it's not some effort to try to undermine or undercut or do things in a smoke-filled secret meeting room or something. That's not what the purpose of this is. It is for the very purpose it has been talked about, that there are some things that just don't need to be talked about and dealt with and discussed in the public. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's sort of like with -- and maybe this is not a very good analogy. But I know when we have, we see on TV all the time, especially when there's a war going on, people talking about what might be done next and what we ought to do and what ought to happen here and there. And you'll hear people saying, Why are we telling them that? Why are we giving them this information. Why don't we just announce to the enemy what we're going to do? And it's sort of the same kind of thing. When you're dealing with issues of national security, yeah, we want to know what's going on with our government. We don't want the people in Washington or anywhere else to be taking secret votes and such as that. But there are some things that we sort of understand just don't necessarily need to be dealt with in the public forum all the time. And I just think that the, because of these policy reasons, that the exception has been carved out that says when you're dealing with real estate or personnel and things of that matter, that you can do it in a closed session. Now, the one thing that I may disagree with Mr. Adams on, it does say that -- it talks about disclosing the minutes. But it does say that the 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disclosure of such portions of the minutes as would identify real estate to be acquired may be delayed until such time as the acquisition of the real estate has been completed, terminated, abandoned, et cetera. It doesn't say that all of the minutes can be withheld. It says such portion of the minutes as would identify the property. Now, certainly that would mean that anything that referred to the property itself by street address or legal, technical property description. in fact there was something about the price that would identify the property, I think that could be withheld. If For instance, and this, again may not be a very good analogy. But let's just say that everybody sort of knew that maybe the commissioners were considering two pieces of property and one of them was out in the country somewhere. They were talking about moving the courthouse out in rural Bibb County and get it out of downtown. And it was a relatively inexpensive piece of property that they could buy for $50,000. Or they could purchase a downtown city block that was going to cost $4 million to purchase to put the courthouse. Well, I think that if they had to reveal the price that they were paying, and that led to 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 identifying the property, I don't think they have to do that. Now, if by the same argument they had five pieces of property and they all cost half a million dollars and they were looking at it, maybe you could argue, and I think you could argue that the purchase price of the property could be revealed because that doesn't, that doesn't identify the property. But it says the disclosure of such portions of the minutes as would identify real estate to be acquired may be delayed until such time as the acquisition is complete. Now, does that create a situation where the 90 days runs anyway? And I looked at that. And I looked at Mr. Cox's argument that well, we it shouldn't start running until you're aware of it, until you become aware of it. Now, on one hand it does make sense, that how can you complain about something you don't know about? But on the other hand the statute is real clear. I mean, the statute says it's got to be 90 days from the date of the event. And it's sort of one of those things that it seems to me -- and again, I'm not trying to argue with or take issue with the plaintiffs. But if in fact, if you're unhappy with 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the way that is worded or you think that is an improper kind of a thing, the place to go is probably to the legislature and say we don't think this is fair. We think that there ought to be some tolling period between, you know, the 90 days only after it's revealed. Maybe the identity of the property is revealed. Then we can -- and of course well, by that time it's already purchased. It may be too late. I don't know exactly how you resolve that. And the argument that, well, if the minutes weren't made public until 100 days later, how can we file a complaint within 90 days? I don't have the answer to that. And it may be as Mr. Cox argued, if you have the meeting in private and you wait 100 days, I don't know what you do. But the statute clearly says 90 days from the event. I don't think, and it's not my finding that the Board of Commission is prohibited from meeting in private. Now, one of the somewhat compelling arguments, Mr. Cox, that you make is that the Attorney General's office apparently has issued some opinion and they say we think this is not proper to do this. And I have great respect for the Attorney General's office, but I will say that's an Attorney 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 General's opinion. I'm basing my findings on what I'm looking at is the law from the Court of Appeals and the Supreme Court. And that's what we're bound to follow as I see it. The Attorney General's opinion is just that. It's an opinion. And it may be, it may be affirmed by the Appellate Courts or it may not be. But the Appellate Courts have said in these cases you can take a vote. And it says in this one, this Brennen case, Well, you can't take a vote now except doing it in public on personnel matters because the statute has been changed and there's been an amendment that says you've got to vote in the public meeting. But before that, what they did to vote on it in private was perfectly okay and perfectly all right. And then in this Schoen case they say, Well, yeah, this is the attorney-client privilege issue and even though the statute doesn't say one way or another, and it talks about discussing and deliberating, just the same kind of language that's used in the real estate exception. But Georgia Court of Appeals said those kind of things, sometimes incidentally votes just need to be taken and have to be taken and that's perfectly all right. There's 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nothing that would prohibit that and it is just one of those things that goes along with dealing with those kind of issues. And so it seems to me that the, I think probably Mr. Cox has pretty much conceded that the issue is moot as to the existing votes that were taken and then ratified. And I think that is true. I think it is moot in that regard. With regard to your request that I somehow enjoin them or prohibit them from doing that in the future -- and I would say that in looking at it, that Mr. Adams, and I was looking at his, the statement that was apparently recorded in the minutes. He didn't say, I'm going to tell them to do that. I think what he said was, I'm going to advise them that they can do that. And, you know, they can choose to do it or not to do it. But I think there is a perfectly legitimate reason. I know I served on the Perry City Council 30 years ago maybe, and I can remember that even then we operated under the open meetings rules. But there were certain things, and I sort of remember that personnel matters and real estate were the two that you normally ran into, that you could deal with in an executive session. 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I think the only thing that it seems to me that may have not been done properly, and I say maybe there wasn't anything in the minutes that didn't identify the property. I don't know that. But the minutes as I see it, it's not that you can withhold all the minutes of the meeting. You can only withhold those portions of the minutes that would In some way identify the property. It doesn't say just the legal description. It says any portions that would identify the property. And so I think if there were discussions where they were talking about the location of the property or who owned the property or how much the property cost or, I think perhaps that it could be revealed that a vote was taken to purchase real estate. I think that would be something that could very well be required that they reveal. But anything that might suggest where that property lS or what it looks like or who owns it or how much it costs or what the address is or which side of town it's on or anything having to do with identifying the property is what they seem to be saying you do not have to reveal. And I think it is for the very reason that has been talked about and discussed not only by Mr. Adams, but also by 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Elliott in his amicus brief. And I think that is just for that very purpose. That you have certain instances, and it wouldn't always happen. But you would have instances where land speculators would maybe want to run out and buy up the property and, you know, knowing that the county was going to do something or buy up the adjoining property from people who didn't know what was going to happen so they could take advantage of the fact that the courthouse or some other big development was fixing to go in here. There are -- a lot of us don't have the wherewithal to be buying and selling real estate on a whim all the time, but there are plenty of people out there that do and can and are able to do that and will do that. And there's nothing illegal about it if they know what's going. If they want to go to the neighboring property and say, we'll, you know, we would like to buy your property. And maybe the neighbor doesn't even know what's happening or what's going on. There are just a lot of reasons why it's not a good idea for it to be public knowledge that the County is going to be trying to purchase a piece of land on Main Street to build a new courthouse. I -- so again, I was going to say, and it has no 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relevance really to this. Except I will say that in Houston County we went through this, not this particular argument. Fortunately, the courthouse that the County built in Houston County was on land that I believe they already owned. But it was sort of a big to-do about moving it out of downtown and moving it out on the outskirts of town. A lot of people didn't want to see that happen. It will hurt downtown this and that. But ultimately we didn't really have any choice. It's sort of the same situation that you all are In here. It would be, even if you could add three stories on top of this, the work that would have to go on to tear this place up and to redo all this and fix it all up, it would be impossible to work through it. And so there are things that happen that aren't always easily palatable to those that are observing from the outside. And the truth is, in Houston County, once we got it built -- yeah, I lived two blocks from the courthouse when it was downtown. It was a great situation and I wasn't anxious to move out. But it is such a better location and such a more work-friendly place and accessible to people and plenty of parking. And you all have all of those 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 situations here. But the real thing that I want to say to the plaintiffs is that I am not, first off, my intent is to follow the law and do what I think the law provides. And if the law says they can't do it, then I'm going to say they can't do it. But I don't want you all to feel like that some kind of way that the law is seeking to subvert the purpose of the Open Meetings Act and allow, you know, people to act in some devious, underhanded, sinister way. It is just purely to avoid the kind of things that could easily come about. And as sort of has been mentioned, it may be that if you all were satisfied by the fact that the Commissioners had to do all this in public, there might be a whole other group of people out there that may be totally upset and enraged that as a result of what happened, certain other unwanted consequences occurred, and why in the world was that made public? Why wasn't that sort of kept undercover and not made public as to what was going on because here is what happened now. And so there's not always a great answer to it, but it is the answer that has been provided by the legislature as I see it. And they have said that one 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the exceptions to the Open Meetings Act is that you can meet in private in an executive session and it uses the term to discuss the future acquisition of real estate. Now, maybe they didn't know that it was going to be a real issue about whether you could vote on something or not. Maybe that came up with regard to personnel and they added this amendment. If they feel that the Attorney General is correct in his assessment and that it is improper to vote on the acquisition of real estate, then I submit that they can do the same thing with Exception Number 4 that they did with Exception Number 6. And they can say, you know, the vote has got to be taken in public. You can discuss it in private, but the vote has got to be taken in public. But they haven't said that. And the case law as I read it, which I give deference to over an Attorney General opinion, is that it's not improper, that it is not the wrong thing to do to take a vote, and that the only thing that has to be revealed or to put it another way, the only thing that can be withheld with regard to the minutes -- and I think the minutes, the section about minutes says that they have to be released within two days or something like that, I think is what it says. 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ADAMS: (Inaudible) after they are approved. THE COURT: And, but they can withhold any portion of the minutes that might identify the real estate to be acquired. And so In that regard I think that they do have to release the minutes of the meeting, but anything that might identify the real estate would not have to be released. And so in response to Mr. Cox's request that I enter some sort of an injunction prohibiting the future voting in executive session, I am not going to do that because I don't think the law prohibits that or prevents that. And also I don't think that, frankly I think that in this case that as to the not only is the issues for those meetings that have already occurred in August and November which were ratified, I think number one, it's moot. I think number two, certainly with regard to the August meeting, I think it's not timely, and yet I understand the argument that, well, the minutes weren't released. And maybe you could argue, well, if no minutes were released maybe there is some timeliness to the fact that if they didn't release any minutes at all until after 90 days, maybe you could make an argument that it was timely. But it would still be moot because of the ratification 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and affirmation of what was done. It seems to me that the only issue really left here to resolve is that of what happens in the future? And I think I made it clear that what I'm, what my ruling is and what I'm saying is that in the future if the commission seeks to go into executive session to discuss and talk about and vote on the acquisition of real estate, I think they are permitted to do so. I think they are required to release the minutes within the time prescribed by the statute except for any portion of the minutes that might identify the property. And that's the way I see this. I don't think -- and I respect Mr. Cox's statement, and I'll listen to what you all have to say about it, about having some further discussion or hearing or argument about attorney fees, but I don't see attorney fees being involved in this because it's not first off, I think that there was not any intent to violate the section at all. I don't think there was any violation. The only possible violation could be argued, Well, those portions of the minutes that don't reveal the identity of the real estate should have been released. But I don't see that as something that would 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 warrant attorney fees since apparently the only vote that was taken was to acquire some pieces of real estate and they authorized a price and a location. And so there was very little that could have been released anyway, it seems to me. But I will, Mr. Cox or Mr. Adams, if you all think that I have failed to address some issue -- Mr. Adams, is there anything further that you think the Court needs to deal with? MR. ADAMS: No, sir, Your Honor. I just want to make one point clear. We do agree with the Court that the statute, you know, says that you have to disclose you can delay disclosing so much of the minutes that identify the property. What I do want to point out though, is there are some instances, and we submit this should be one of them, where all of the minutes would identify the property and would not be subject to immediate disclosure because it goes back to what is actually required in the minutes? No discussion is actually required. all you have to have in minutes is just who was there, any motions, and the action taken. And that would -- So THE COURT: Well, what I'm saying is that you, you might be required to disclose that the 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 commission voted to acquire real estate. MR. ADAMS: And we understand that. THE COURT: what the vote was. And who made the motion and MR. ADAMS: Yes, sir. And I don't argue with the Court on that at all. THE COURT: So that portion of the minutes I think you would be required to disclose. But, you know, I'm not going to get into saying, well, what identifies the real estate and what doesn't. MR. ADAMS: Sure. THE COURT: I mean I can understand there could be times when everything except the exact location could be released. But there could be other times when that, you know, there are other things as I've said. Sometimes the price might help identify it. Sometimes the owner might help identify it. I'm not going to try to bright line what the identifying markers are. But I think that's, you know, that's something that theoretically could result in another complaint at some point. Well, what they withheld didn't identify it. Well, that would be another issue for another day. Begining here at page 43 MR. ADAMS: Yes, sir. But we don't have anything else for Court. I just wanted to clarify that point, Your Honor. But we certainly agree with the Court's position on that. THE COURT: All right. Mr. Cox, is there anything that you think that I have failed to address? MR. COX: Just very briefly, Your Honor. I know that Mr. Ryan wanted to address the Court, because I do not represent him. He's still here pro se. THE COURT: had his hand up, but I MR. COX: se. THE COURT: Okay. I'm sorry. I saw he And Dr. Holliday is also pro Okay. All right. MR. COX: And I think they want to address the Court. From Plaintiff Johnson's standpoint, what your Court has said about the minutes is the declaratory relief she is seeking. That is what she is seeking to have happen moving forward. So what the Court has said about that is exactly what she's seeking. She's not seeking to set aside any real estate transaction in this suit at this point in light of the February meeting. 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. All right. Mr. Holl- -- is it, are you Mr. Holliday? MR. RYAN: THE COURT: I'm Mr. Ryan. Ryan. Oh, okay. Yes, sir. Excuse me. I just did not understand when -- Mr. Cox may have said so earlier, but I did not MR. RYAN: I acquiesce, Judge, in the arguments of Mr. Cox. However, he doesn't represent me. I'm a concerned citizen. I'm one of the original plaintiffs and still a pro se plaintiff In this action. And to me, Your Honor, this issue is, the ultimate issue here is openness in the government and the public trust that is engendered by openness in government. Mr. Cox has made the arguments that the exceptions have to be narrowly construed and the act itself broadly construed with a view towards promoting openness in government and avoiding the engendering of distrust amongst the electorate. And certainly in this county this issue has engendered distrust. Now, the August 5th meeting, I think it was the Properties Committee, that meeting, by their own minutes, the defendants' own minutes of that meeting which they have included as an affidavit to their 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion, it's obvious from that very abbreviated minutes that you do see that the discussion transcended acquisition in real estate and went on to the likelihood of a new tax levy, a special purpose local option sales tax to pay for this. That's outside the bounds of discussion of a real estate acquisition, Your Honor. They were talking about a tax, a new tax levy. And once the public learns of that, that further engenders distrust in the actions of the government officials. Again, the purpose of the act is to promote government trust amongst the public in their government and do that by promoting openness in government. To me, I read the word discuss in the dictionary. I have looked in it. It means to talk about. I don't read into that taking some other action such as vote on something. I can talk about it. If you look at the meeting minutes from the November 18th meeting, Judge, you'll see that the defendants have summarized those meetings. I know that those are not verbatim minutes because it would only take about a minute to say all of that. But if you look at those meeting minutes, you'll see that there is no real defining reference to the real 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 estate to be acquired. They referred to, the commissioners referred to Blocks A and Blocks B, very vague reference. That could be anywhere on this planet. So there's clearly a way for them to avoid what they rightfully do want to avoid, which is others getting involved in bidding up the price of the real estate that the taxpayer will ultimately pay for it. So again, with their own published minutes from November 18th, they have avoided any real reference as to where that property is. I want to call your attention also, Your Honor, to -- I personally feel that the County Commission has made a studied effort to keep the matter of the real estate acquisition and the real underlying issue, which is the likelihood of relocating this judicial facility, that they made an effort to keep that secret. I will call your attention to, and I'm going to ask the Court to take judicial notice of the Bibb County Commission's official Web site. Judge, if you go to their official Web site, you follow the link to commission meeting minutes. I did this immediately after this issue was published in a local newspaper and I did it again yesterday. It is unchanged. If you scroll down to the August 5th meeting minutes and 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then on to the Properties Committee and you will see the entrance, No report. Then scroll further down to the November 18th meeting, Judge. And the Committee as a Whole Report, which is the second meeting at which the vote in closed or executive session took place. The only thing in that November 18th report is a reference to a totally unrelated matter. So the records of the closed meeting and even the record that the closed meeting took place or were held has been kept from public view. So if we get to the point, and I'm not sure that we will now based on what you've said, but that where evidence is to be presented, I would request that this Court take judicial notice of a matter of common knowledge. And I think it's common knowledge that computer access to the Internet is the major portal to information acquisition in America. If Bibb County residents sought information about the activities of their government or the County Commission in particular, they would most likely use the Internet to get it. In fact, as of the day before yesterday, the Bibb County Meeting Minutes link had 23,201 visits since late April of 2004. That's almost 5,000 visits a 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 year by, I presume, citizens here to see what our commission is doing. And I would wager and I would certainly try to produce evidence that individuals who sought information by walking up to the County Commission Office and requesting of Ms. Thurman access to the records would probably be one hundred or less than that. So again, my point is that Internet access is a primary, the major portal to information acquisition and the County Commission has actually withheld any reference to these meetings on that and any kind of report on that. And to me that certainly engenders mistrust. I think they are definitely trying to hide and were trying to hide the whole issue, but do we live in a small town. People find out about things. And so a county commissioner spoke about these issues in January and the genie was out of the bottle, Judge. Again, this is about public trust in how our government operates. That public trust is not engendered by withholding information, particularly intentionally withholding information. It's that trust that, in the government that makes our government actions more efficient and more successful in their efforts, in the government's efforts to 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 promote the general welfare. Without that trust we have discord and no consensus as to what is the general welfare. So I ask that you rule in favor of openness, broadly interpreting the entire statute to require the defendant commissioners to not vote on these matters in public -- in private. discuss it. I don't contest it. They can easily And they can release the required minutes of it without identifying the property to be acquired, thereby avoiding what they fear, rightfully, that the price will skyrocket. Thank you, Judge. Do you have any questions of me? THE COURT: Mr. Ryan, I don't have any questions. And I appreciate your interest and concern. I think there probably is some distrust in all government. And that's sort of unfortunate. But I think that's sort of the way it is, unfortunately. That's probably one of the reasons that a lot of good people don't want to run and serve on county commissions and city councils and in the legislature and the congress and such as that, because there are, you know, there is a lot of distrust. There are people that just sort of always think that they are doing the wrong thing, that they are doing, you know, 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sinister, secretive things. And I'm sorry that you feel so strongly that this commission -- and I don't know. You know, I'm not familiar -- I'm from Houston County. I'm close by. But I will say you talked about you thought they were trying to keep this whole courthouse issue a secret. I read the Macon Telegraph is what I know. And I've read numerous articles in there where there's been a lot of talk about whether the courthouse is going to stay here or whether it's going somewhere else or whether it's going to be paid for by a SPLOST or whether it's going to be paid for by -- and we went through all that in Houston County. That's something that people, you know, those are hard decisions and hard issues to take. The people downtown, I ate lunch several weeks ago in a restaurant across the street. They had a little book there at the checkout counter where they were wanting people to sort of sign up to vote against and be opposed to the courthouse moving out of downtown. Well, I understand that. They make their living from people that come here to court and lawyers that are here and jurors and such as that. Yeah. It will hurt. I mean, it hurt when Joseph Neel's left downtown. I mean, I used to come there 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and shop at Joseph Neel's. All of these things MR. RYAN: jacket. That's where I got this THE COURT: Yeah. All of these things hurt, but it's the kind of thing that goes on. And Mr. Ryan, I don't want to offend you in any way. And I shouldn't say what I'm going to say, 'cause it's probably going to offend you. But what my thought is, you need to get yourself elected to the County Commission because then you could be right in on all of this stuff. But you would either be one of those that went into executive session to talk about real estate or you would be one of those that probably wasn't very popular with the County Commission 'cause when they talked about it, you would come out and tell everybody what was talked about in the executive session and then, you know, the very purpose of doing that -- But my only thought is, you know, we could either -- years ago they didn't even have an open meetings law. into effect. I don't know exactly when this came But years ago I guess they could meet anywhere or go talk to each other on the telephone or do whatever and work it out. And then the law came along and said, No, we can't do that anymore. People 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 distrust government. So we are going to make you meet publicly and let everybody know what you're doing. But at some point, and I don't know whether they did it immediately when they created a law or if it evolved over some period of time, they said, Yeah, but there's certain things that don't need to be discussed publicly and one of them is personnel issues. You've got issues with some of your people? That doesn't need to be talked about publicly. That's between the Commission and the employees and you can deal with that in an executive session. And so people started doing that. And then this Brennen case, Brennen that I was talking about, they fired somebody in a closed meeting. They voted, said he wasn't doing his job and they voted to get rid of him and they fired him in a closed meeting. Subsequent to that, and I don't know if it was a result of that issue or not, but at some point the legislature said, for whatever reason, no, we don't think you ought to be able to do that. You can talk about it, but when you get ready to vote on it, you've got to vote on it in an open meeting. And so they carved out an exception to that and said you've got to vote in public. 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, with this real estate thing they haven't said that. And they've said -- I agree with you that the word -- and I don't think anybody disagrees. The word in there is, discussing future acquisition of real estate. But the case law seems to tell me -and that's my role here is to interpret what the case law says -- that you're not prohibited from doing that. You're not prohibited from voting on it in the executive session. And you know, it's the idea of democracy. I've always heard that the most efficient type of government is an enlightened dictatorship. That's what I've always heard. But in democracy the majority rules. And you and others, there may be some others that don't like what has happened here. But our legislature is elected by majority vote and then they pass laws by majority vote and they can change laws by majority vote, but the laws that they have got on the books and even the Appellate Courts and the Supreme Court, they vote within their court and rule by majority. And they have voted and said, Here's our interpretation of these laws and here's what it is. Now, my job is not to make new law. My job is to interpret and rule on what's happened and what has 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 occurred and how the law applies to the facts. And, you know, the next time we meet here on something I might be one hundred percent on your side. But this time I think that your side is not correct in what you are wanting to see. And I respect your opinion that that's what you'd like to see, but that's just not what the law requires. And so I respectfully say to you that I would hope, I mean, you appear to me to be someone who is very interested in government. You apparently are a lot of those 5,000 hits a year may be your hits. I don't know. And I do agree with you I will take judicial notice of the fact that an awful, probably more people get their news now by Internet than anything else. And there probably are a lot of people that go and look at that. But the law says that they can go into executive session and vote on the real estate. the word vote. I'll grant you that. It doesn't use But the case law says to me that's what they can do. And that was the very issue that was raised. Well, it said discussed, but they voted. And the Brennen case said, well, now it says you've got to vote in public, but before it didn't say anything about that. So voting on it was perfectly all right. 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And that's where I travel from, Mr. Ryan. And I appreciate what you have to say. You're -- my guess is that you probably appear at a lot of City Council meetings or County Commission meetings. I don't know that. You certainly keep up with what's going on and that's good. We need people that are informed citizens. But I just think your wishes and desires are not in accord with what the law requires at this particular time. And so thank you for your comments, but I am not, based on what you've said, I'm not going to change what I have indicated in my finding and my ruling on the matter. Thank you, Slr. All right. Mr. Holliday, did you want to speak, sir? And I apologize to you also. I just, I just was thinking, you know, our normal procedure is that the attorneys speak for the clients. And I think Mr. Cox said at the very beginning that he was only representing Ms. Johnson, but I just was not paying attention and I apologize to you, sir. MR. HOLLIDAY: I accept your apology completely. (Inaudible) and there's a lot going on. And I want to thank you for extending us this extra hearing time when we thought it was resolved. I think I have some new information. First I want to 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 invoke, my grandfather served as a judge here. Pete Holliday, Sr. was a juvenile court judge. He died at about my age of cardiovascular -- THE COURT: Was your family dentists? MR. HOLLIDAY: I am a general dentist, yes, sir. THE COURT: You must have worked on my mother's mouth, 'cause she used to come up here to a Dr. Holliday for years. MR. HOLLIDAY: That was my dad. THE COURT: That was your dad? MR. HOLLIDAY: Painless Pete. THE COURT: Yeah, Pete Holliday. That's exactly right. She thought a lot of him. I didn't know him, but she thought highly of him. MR. HOLLIDAY: He loves his patients. THE COURT: because -- MR. COX: MR. HOLLIDAY: He was always compassionate. Do I need to be recused Only if she didn't like him. But the new information I have is something that seriously hadn't come up, and of course you're going to think well -- but the power of eminent domain. It's an incredible power we've given to our government. It's a very useful power 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because when they need a piece of property for a road or a railroad or a courthouse, they can take that property and they don't have to pay an inflated price. There are methods for where and thank goodness they can protect taxpayers and only pay fair market value. My Kiwanis meeting this past Tuesday and the Bibb County Commissioner is about to come up with a very late property assessment. And he told, he said if you want to challenge your assessment, this is how you do it. You can go before arbitration. You choose your arbitrator. Bibb County will choose their arbitrator and then there's a third arbitrator and those three arbitrators will decide what the true market value of your property is so we can tax you fairly. We don't want to tax you not more and not less than what it is. And so the power of the government, eminent domain is an extraordinary power, that prevents escalation of speculative buyers. Arbitrator goes in and says, Mr. Jones, we saw you bought that property six months ago when we were talking about building the courthouse here and we see you've jacked it up, but you only paid $10,000 for a little piece of property. And we'll give you a hundred dollars for 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 holding onto it for six months. We will give you $10,100, but we're not going to give you $50,000. And Bibb County has the power to do that. So on these arguments about protecting the public, the taxpayers, by not saying we're going to buy this property here, and these are suspicious arguments here in my opinion because Bibb County can pay exactly what it's worth and they don't have to give Mr. Jones a penny more than the arbitration would allow. And the public, this is an open process, and the public can see and the public won't mind. If the property really is worth $50,000, well, the information will be out there. And the public trust is what it all comes down to 'cause we are a government by the people, of the people, for the people. And that only works as long as the public does trust that government. important to keep that. So it's a really You mentioned how it's not wise sometimes to speak about other things like the war plans during the Gulf Wars and that's true. But I think that's not as good a metaphor as it used to be that doctors would never tell a patient if he had cancer. And we realize now that that was not a wise thing to do. He 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wouldn't even tell the family sometimes. And it used to be that the dentist, you go to a dentist and the dentist would say, You need a crown here. Yes, sir. But now the patient is a co-therapist. The patient, you describe you've got decay like this, we can put a filling. We can put a crown. You might need a root canal. You help me decide what you want. So there's a different dynamic here about what is appropriate now to disclose. And I think with the power of eminent domain the county should not fear, have any concerns whatsoever about saying where they want to build a new courthouse because they have the power to take it. And it makes sense. useful law as long as it's not abused. It's a very Personnel issues, that makes sense keeping that In closed session because there's no trumping power like eminent domain over that. But property issues, there's no reason for that to become, to be discussed In secret. And the actual location of the courthouse is not what we're here, what we're concerned about here. Our issue is good government in Bibb County, government we can trust that can move ahead. Because so many times they have done things like this in 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 secret and our whole community has gone back two steps. We take one step forward and two steps back. It's because of things like this where they made the decisions privately and then they weren't good decisions. If they had opened it up to the public, the public could have helped to correct them a little bit and we could have moved forward much faster. So I think that's it. And I want you, as you interpret what you have to do, to not lose sight of the forest for the trees here. I know there's a lot of crossed T's dotted I's. There was a word vote here. But the issue here really is that this law, the Georgia law was put out there to build trust between government and the people. And if property, if they didn't have the power of eminent domain, then I would just have to trust them to negotiate in secret and get this property. But they do have the power of eminent domain. So there was no reason to discuss this in secret. And for that reason and that they did it and they said they are going to do it again and they think it's the right thing to do, that with the knowledge that they have this power and say we're not going to use it, we would rather work in secret, that really, really engenders distrust. And it's unnecessary. 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: eminent domain. Well, I'm not an expert on I do know that when they, when a government takes a piece of property and they have to have a legitimate public use, I think. And it may very well be that -- I don't know that I've ever heard of anybody condemning property for a courthouse, but that might be possible. But there's no -- what they have to do immediately is to pay what they deem the fair market value in the court, but the landowner is not required to accept that and can take the county to court. And you can have a retracted trial over what the fair market value is and everybody gets their appraisals and you go through the lawyers and the trial and such as that. And, you know, one side says, well, you know, they paid $100,000 of what they determined and paid in the court, but we say it's worth, you know, three times that. And then the county gets their appraiser to come in and say 100,000 is a fair value and this and that and ultimately a jury decides. And I've presided over some of those cases where it came out about what the power company or the municipality said. And I've presided over a couple where they ended up paying a whole lot of money for 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something that they thought was not worth nearly that because the jury says here's what it's worth. You took their property and we think it's worth all this. But again, those are things, Mr. Holliday -- you know, it's like I said, in a democracy -- I sense that there's at least, certainly of the three plaintiffs here that feel like that this county commission does not engender trust and does not operate in an open and above board manner. Well, you know, in a democracy the way you resolve that is to change county commissioners. MR. HOLLIDAY: THE COURT: Vote them out. That's right. It doesn't necessarily -- I said to Mr. Ryan, and I hope I didn't offend him when I said, sounds like you need to run for county commission. MR. HOLLIDAY: filthy job. I ran for it and it is a THE COURT: Well, or get somebody, back somebody else to do it. Then if your candidate loses, you know, you're stuck. MR. HOLLIDAY: I'm definitely the one that won. THE COURT: And it's bad, bad government. Maybe, you know, you made one comment and I was just 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thinking that you didn't say, I can't remember exactly what it was. But it was talking about less government or such as that and I thought, well, you know, I've, just recently we've been hearing about the Somalian pirates over there. And apparently, the reason that they flourish and are productive, partly because there is no government over there. no rules. There are no laws, nothing. There are So, yeah, there are some good things and some bad things about America. You know, the way we do things, sometimes it works out good. It really depends on are there. the people. It depends on the people that If you've got folks that get themselves elected to the county commission and sometimes there are people that get elected on a, they have got an agenda. They are tunnel vision. They want -- you know, there were people in the governor's election at one point that, you know, their sole issue is can we have the Confederate emblem on our flag and we are going to vote for the man that will do that. And, you know, that's such an unimportant issue in the governing of the great scheme of things. MR. HOLLIDAY: Right. THE COURT: But that's the way our country works. And when the majority believes the 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 way we believe, we are happy. When the majority believes the way we disagree with, we are not so happy. But still, you know, I was just, I was hearing that some of those captive seamen were coming back today and one of them said, you know, he just couldn't wait to get back to the greatest country in the world. And that's sort of the way we work. And we have these, we have an open forum. We don't have to worry about getting hauled off in shackles because we don't like what Mr. Adams said or what the County Commission did or how I mean, we can stand up and openly complain about it and say we think it ought to be done differently and ought to be done some other way and we don't like the way it's being done. MR. HOLLIDAY: And I thank you. Even though we disagree on it, I thank you for hearing me. THE COURT: Yeah. And I appreciate, you know, this is what makes good -- maybe Mr. Adams, the next time he might tell them to do something a little -- MR. HOLLIDAY: That's my hope. THE COURT: I'm not saying he's going to say don't go into executive session, but he might say, well, whatever. I mean it might be a little 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 twist of something here. It might not even be on this issue. It might be on some altogether different issue. And the commission may say, Well, hey, let's do something, let's do something different. We've got folks that feel strongly enough that they are filing lawsuits and coming to court and, you know, we are having to pay our county attorneys extra money to go to court and deal with this, so what the heck, you know? Let's do something different. I mean, I don't know. But that's America. That's how it works. And I appreciate your interest and your concern with good government. I hope that, you know, I would like to think that at some point that everybody would be happy with the Bibb County government. I know I've been on the bench for almost 23 years now and I've spent my whole life trying to be a good and decent person, trying to do the right thing, trying to be respectful and patient and tolerant in Court. And for the first time in 23 years I had somebody run against me last time and a fourth of the citizens of Houston County voted for her and not for me. And somebody said, well, you won by a landslide. Yeah, but there were 10,000 people out there who voted for somebody else and they didn't even know her and they voted against me. And my wife wanted names 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and addresses of all those people. But you know, it's just not -- people don't always agree with you. And I suspect that a lot of those people that voted against me were probably mad at me about something that had happened, or a lot of them, just get rid of the incumbents. Vote out all the incumbents. Some knew her and a lot of them say anybody but the incumbent. But it's America. And I don't own this job. If I'd have lost, I would have thought why did that happen? But I would be doing something else now. I wouldn't be doing it. So that's the way we work. And I appreciate y'all's interest, Mr. Holliday. MR. HOLLIDAY: I thank you very much. THE COURT: Yes, sir. MR. COX: Your Honor, if I could just have three seconds, I just need to make sure that there's a clarity as far as how Ms. Johnson's position might differ from the other two plaintiffs. And I don't think I'll have anything else to say today. THE COURT: You certainly may. I'm here for the duration. MR. COX: By bringing this lawsuit, Ms. Johnson is taking no position on the location of 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the courthouse. And that was clear that I was instructed that I was not to make that part of this. THE COURT: I do understand that. MR. COX: The second thing is she is not trying to paint the commissioners as evil and sinister in what they did. She believes the process that they were using as far as what they disclosed was not consistent with the Open Meetings Act, but she's not trying to ascribe to them any illicit or evil motive in doing that. THE COURT: Okay. Thank you. I appreciate that. All right. Is there anything further that you know that we need to deal with, Mr. Adams? MR. ADAMS: Your Honor, would Court like for me to get the transcript and prepare an order? THE COURT: Prepare an order? That's fine. Mr. Cox, anything further that you know that we need to deal with? MR. COX: Well, as I understood the Court's ruling or perspective ruling, the Court did disagree with Mr. Adams regarding how the commission had handled the minutes and his argument as it related to that. And so that leaves open that issue to be -- 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, I disagreed only to the extent that I said I don't think that he is, I don't think he is entitled necessarily to withhold all of the minutes of the meeting, but only those portions of the minutes that might identify the property in some way. And, you know, I don't know of any other way to say that. The fact that they voted affirmatively to purchase property, I think that would be something that could be disclosed. Who made the motion, what the vote was, whether it was six to three or, I mean, I don't know, whatever. what I don't know, I don't know MR. COX: But my point in commenting on that was simply that that aspect of your ruling, that that does not -- that's an issue that Ms. Johnson had actually sought a ruling to that effect in this lawsuit. We don't have a motion yet seeking that. THE COURT: Well, with regard to that, I am saying that I think that the, as to those meetings that have already occurred, I think it's moot because I think that's already been ratified and dealt with. So there's not to be any I don't -- I'm not finding that there needs to be any repercussions as a result of what has already happened. I think that -- 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. COX: THE COURT: We're not seeking any. I'm saying in the future, from this point forward, any minutes that are taken in those executive sessions should be released as prescribed by the statute. Within, I think it says two days is what I thought it said, three days or two weeks or something. I saw some figure in there. MR. ADAMS: I think it's two weeks. THE COURT: Except for anything that might identify the property. And to the extent that he would tell them that they don't have to release any minutes, I don't think he can do that. he can -- I think MR. ADAMS: And I agree with that, Your Honor. And Your Honor, what I will certainly do is prepare a draft and circulate that with Mr. Cox in between the two of us. THE COURT: Okay. MR. ADAMS: Would you also like me to circulate drafts of the order? MR. COX: Yeah. MR. ADAMS: The only thing I would ask is that you try to provide your comments back to me as soon as possible. That way I can get it completed and get it to the Court as soon as possible. 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. Mr. Ryan, anything further that you think of that we need to deal with? MR. RYAN: Well, I wanted to ask Mr. Adams how he intended to circulate that. THE COURT: Well, I think what he's saying is he would simply send you a copy of his proposed order and if you have any comments as to whether you agree or disagree with what his order says, not that you don't like what the order says, but if you think that he has stated it in some way other than what I've said or if he's misstated something in the order or something. Just not to circulate it among everybody in your community, but you as one of the parties, he's offering to let you see the copy of the proposed order, you and Mr. Holliday both, and he will send each of you a copy of his proposed order. And if you have any objection or comments, make those and get them back to him rather quickly because what he's going to do ultimately is send it to me for my final signature. Okay? Anything else, Mr. Ryan, that you think we haven't dealt with? MR. RYAN: I'll leave it, Your Honor. 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. HOLLIDAY: THE COURT: All right. Mr. Holliday? Thank you. All right. Well, it appears to me then, other than finding Ms. Dorriety for this individual that called earlier, we'll stand in recess. MR. ADAMS: Thank you, Judge. 71 CERTIFICATE OF REPORTER I, Janet S. Paris, Certified Court Reporter B-1835, State of Georgia, do hereby certify that while acting in such capacity on the 17th day of April, 2009, I stenographically reported the proceedings in the case of Lee A. Johnson et al v. Board of Commissioners, Bibb County, et aI, Civil Action File No. 09CV50451, Superior Court of Bibb County; that the same was thereafter transcribed by me or someone under my personal supervision; and that the within-numbered pages, 1 through 72, inclusive, represent a true, correct and complete transcript thereof, to the best of my skill and knowledge. I further certify that I am not of kin or counsel to the respective parties to the captioned case nor am I in any way interested in the result thereof. IN WITNESS WHEREOF, I have this 12th day of May, 2009, hereunto set my hand and affixed my seal. (JANErr; S: PARIS Cs:~rt}fied Court Reporter B-1835 State of Georgia 72 |
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