Open government: expose the violators

Posted March 24, 2014

By Susannah Nesmith, American Journalism Review

MIAMI, FL — When officials in Cobb County, Ga., wanted to lure the Atlanta Braves out of Atlanta, they devised a plan to commit $300 million in taxpayer funds to a new stadium — while leaving the public out of the loop until details were finalized, even if that meant circumventing the state’s Open Meetings Act.

And when board members at the airport authority in neighboring Paulding County wanted to meet with a private contractor to discuss bringing in commercial flights to a local airfield, they made it virtually impossible for local residents to listen in, or even to find out what was discussed until months afterward.

Both cases were exposed in an important recent story in The Atlanta Journal-Constitution, which showed the efforts government officials made to hide deliberations from public scrutiny. According to reporting by the AJC’s Dan Klepal and Kelly Yamanouchi:

• The four district commissioners in Cobb County first learned of details of the Braves move in individual meetings with the commission chairman and team officials. Commissioners then met in pairs with the local chamber of commerce, “where they learned about the financing plan from business leaders and Braves officials.” With only two commissioners in the room, there was no quorum that would trigger the open meetings law.

• When the Paulding airport authority met with contractors to discussion bringing in commercial air traffic, they gathered for a retreat 20 miles away, in another county. The retreat was advertised as an open meeting—in a notice sent to a local weekly paper the day before the retreat. The paper doesn’t have a website and didn’t print an edition before the meeting. No other notice was given.

 • The minutes of the airport authority’s retreat weren’t published until more than six months later. Officials told the AJC this was a mistake, but it was a convenient one. When a local resident complained about the retreat to the state attorney general, the complaint was rejected—the statute of limitations had run out after six months.

On that last point, Georgia media law attorney Cynthia Counts told CJR she disagrees that the law bars the attorney general from acting.

“If the law meant that, then it would be meaningless,” Counts said. “What’s the point of the law if it’s not to stop this?”

A spokeswoman for Georgia Attorney General Sam Olens did not return a call seeking comment from CJR. Counts said Olens has been an advocate for strengthening the state’s open meetings law.

The six-month time limit refers to an effort to invalidate decisions made in an illegally closed meeting, though other enforcement actions are possible. Georgia’s open meetings law includes fines and even jail time for officials found in violation.

But the truth is, open meetings violations are almost never punished, even in states with strong laws. Against that backdrop, officials may even sincerely come to believe that attempts to circumvent the law — like having a full governing body discuss an issue while avoiding a quorum — are actually compliance. Both Cobb and Paulding officials insisted to the AJC they had done nothing wrong.

“Prosecutions are just so rare,” said Daxton “Chip” Stewart, a professor at Texas Christian University and the author of a 2010 study comparing enforcement provisions in open meeting and open records laws around the country. “My experience is prosecutors and attorneys general file those kinds of charges if there is a political point in doing so, if the person they’re charging is their political opponent.”

That’s a shame, and something national journalism advocates frequently decry.

“In most states, government agencies get away with hiding secrets,” said David Cuillier, president of the Society of Professional Journalists and the director the University of Arizona’s School of Journalism. “It’s a huge problem. It makes the [open meetings] laws weak.

“I won’t say they’re worthless, but what recourse does a citizen have? If you or I broke a state law, we got caught speeding or stealing something, we would face fines and we could go to jail. But they don’t do that with these statutes. Journalists really need to push back, such as writing about it.”

That’s what the AJC did. The paper felt the need to devote a “special emphasis on watchdogging the public investment in the new stadium,” Klepal told me.

“There was a lot of dissatisfaction in the community about how this went down,” he said. “Soup to nuts, from the first public knowledge of it to a vote to approve the deal was only one and a half to two weeks. It happened very quickly.

“Rather than the commissioners being involved in talks about the best way to finance this public commitment, they were presented with a plan for how to do it by the chamber,” Klepal added. During that discussion, taxpayers and voters were kept in the dark.

One commissioner was quick to point out to the AJC that the meetings with the chamber of commerce resulted in a significant change to the financing plan for the stadium. That’s a rebuttal of concerns that tax policy was being dictated by business leaders—but it’s also further proof that public business was being conducted in private.

The AJC’s article came together with Klepal covering the Cobb County deal and Yamanouchi independently following the Paulding airport. At first, they weren’t sure either case of skirting the law was a story. But editors at the paper conferred, and decided: this was news.

The airport situation looks nearly as shady as the stadium deal. Per the AJC’s story, no formal action was taken at the two-day retreat; the airport’s director called it “an educational session.” In fact, a lease with a contractor looking to bring in commercial operations had already been entered, though it wouldn’t become public until months later. But by making the “educational session” inaccessible to the public—and neglecting to publish a record for months afterward — the authority shielded its deliberations from view. (The other way residents might have learned the news is if the weekly that received the notice, the Dallas New Era, had covered the retreat. The paper’s editor is out of town and could not be reached for comment, and there was no reporter in the paper’s offices Friday morning, said a woman who answered the phone.)

Emily Grannis, a legal fellow with the Reporters Committee for Freedom of the Press, said even though open government laws are rarely enforced, local officials can make things right. They should do it over, in public.

“I don’t like to assume ill will on anybody’s part, but these do seem to be pretty egregious violations,” Grannis said of the two cases the AJC wrote about. “If these were accidental or unintentional violations, we would hope these officials would revisit their decisions. Maybe they come to the same conclusion in a public forum but they really should fix it as a show of good faith that they didn’t intend to violate the law.”

It’s doubtful either board will do that. But on elected boards and commissions, at least, citizens do have one other option — the ballot box.

Robert J. Freeman, the executive director of New York’s publicly funded Committee on Open Government, said that is often the best incentive for local officials to follow the law. Freeman has been defending the public’s right to know what government is doing since the 1970s—he’s even had the same phone number since 1976.

“As Supreme Court Justice Louis Brandeis said, ‘Sunlight is often the best disinfectant,’” Freeman said. “Often, the news media organizations can publicize these cases and public opinion shifts and then people vote the rascals out.”

Kudos to the AJC for focusing a little light where the Georgia sun wasn’t shining.

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