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Litigation threat must be real to close board meeting

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  1. Freedom of Information

    NMU         GEORGIA         Freedom of Information         Jul 6, 2001    

Litigation threat must be real to close board meeting

  • Commissioners erroneously invoked a litigation exemption when a former employee said he would do “what was legally necessary” to receive pension compensation, a Georgia appeals court ruled.

A county recreation director’s pledge to do “what was legally necessary” to gain compensation for his 30 years of accrued leave did not constitute “potential litigation” and could not serve as a rationale to close a public meeting, the Georgia Appeals Court in Atlanta ruled June 6.

Ruling for the Claxton Enterprise in a lawsuit brought by the newspaper, the three-judge panel said, “In our litigious society, a governmental agency always faces some threat of suit.” But to allow closed meetings for “an unrealized or idle threat” of litigation would seriously undermine the open meetings act.

The court said Evans County Board of Commissioners failed show a “realistic and tangible threat” of legal action against it or its officer or employee to invoke the litigation exemption. Evidence of a realistic threat would be a formal demand letter voicing a solemn intent to sue, previous litigation between the parties on similar claims, or proof that a party has retained counsel with respect to claims, the court said. Nothing in Danny Swain’s claim for reimbursement for unused leave, the court noted, demonstrated any actual threat of a lawsuit.

In July 1999, the board announced that it would close the discussion of Swain’s claim under an exemption to the act for discussion of personnel matters. But Mitchell Peace, publisher of the Claxton Enterprise, objected that the discussion concerned budget, not personnel, matters. The board closed the meeting. In an affidavit several days later, the commissioners claimed they had legally closed the meeting both to discuss a personnel matter and to discuss potential litigation with their attorney.

The newspaper sued the commissioners, saying the meeting and a previous meeting closed to discuss litigation were both illegal. The commissioners agreed that closing the earlier meeting violated the Act because there was not an attorney present for the discussions. But the trial court held that in closing the second meeting, the board had complied with the Act.

The newspaper appealed and the appeals court reversed the trial court’s decision.

(The Claxton Enterprise v. Evans County Board of Commissioners; media counsel Glen Cheney, Reidsville, Ga.) RD

© 2001 The Reporters Committee for Freedom of the Press

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