Matthew Cardinale, activist and editor of the online Atlanta Progressive News, is slated to present his case to the Georgia Supreme Court on Oct. 4, alleging the Atlanta City Council has violated the Open Meetings Act.
According to a summary provided by the state Supreme Court, the case stems from a vote the Atlanta City Council took last year while on a retreat at the Georgia Aquarium on whether or not to limit public comments at committee meetings. Cardinale’s lawsuit was filed in Fulton Superior Court on May 17, 2010.
Alex Wan, the only openly gay city council member, told the GA Voice in May 2010 when Cardinale filed suit against the council and individual members, that the vote at the retreat was a “lark.”
“No action was taken. Everything stayed the same. The irony is [Cardinale] got what he wanted. I’m baffled he would want to waste city resources this way. We have really pressing issues we should be focusing on. We have very open, liberal policies for public comment,” Wan said last year.
Wan also accused Cardinale of “bullying” him and other members of the council when he repeatedly asked them for how they voted via emails.
“I have no intentions of answering his question. I don’t appreciate this manner of bullying over a matter I believe he will have little or no grounds for any lawsuit,” Wan said in an email the the city’s legal department last year.
“That said, I wanted to make sure that as our counsel, you’re comfortable with my position and that if he does end up filing the lawsuit as threatened that the City is prepared to defend me and any other Councilmembers that choose not to submit to his tactics,” the email said.
Wan told the GA Voice last year he stood by his description that Cardinale was harassing City Council members.
“He says we were voting on a proposal and there should have been a roll call when in reality we were not voting. Eight said they were comfortable with how things were, seven said we should explore. Then he started harassing council, firing off emails to council, legal, the clerk,” Wan said.
Cardinale rebuffed Wan’s accusations of bullying.
“I have taken extraordinary steps. I think the stuff from Alex about me bullying him is a mischaracterization and it shouldn’t even matter,” Cardinale said last May. “Just because I didn’t say ‘please.’ As a reporter, my primary obligation is to my readers and that doesn’t mean I have to play nice. I did a lot to reach out to Alex.”
Cardinale, who regularly speaks at city council committee meetings as well as raps at full council meetings and is described as a “gadfly” by other media outlets, was eventually able to get city council members to say how they voted. Wan said he voted in favor of exploring the possibility of limiting public comment time.
“Every minute we save we can be doing the city’s work and discussing policy. We’re frustrated because there is not enough time in the day. Five minutes is a lot of time to talk,” Wan said last year.
“And the chair can waive the five minute rule if someone is giving a lot of information and goes over. There are also so many other ways to communicate with council. With emails you have written record. If we as a council operate more efficiently it sends a message to the city,” Wan said.
But the unwillingness of the city council to initially share how they voted or have a public record stating who voted how led Cardinale to file a “pro se” lawsuit and he is representing himself.
At issue, according to the Georgia Supreme Court, is the wording of the Open Meetings Act which states, “In the case of a roll-call vote, the name of each person voting for or against a proposal shall be recorded, and in all other cases, it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.”
The city’s legal department was successful in getting Cardinale’s lawsuit dismissed in Fulton Superior Court and in the Court of Appeals and in a brief filed with the state Supreme Court argues “the legislature intended that the [Open Meetings] Act would not, except in the case of a roll-call vote, mandate the inclusion in the minutes of the names of those voting against a proposal or abstaining even if the vote was not unanimous, except if the voting body chose to do so.”
The city also argues to the state Supreme Court that the “plain language shows that the results of non-roll-call votes are presumed unanimous unless the voting body chooses to cause the minutes to reflect the name of the persons voting against the proposal or abstaining.”
“If, in fact, the legislature intended the statute to require voting bodies subject to the act to include the name of the persons voting against a proposal or abstaining, where the vote was not taken by roll-call and was not unanimous,…it is the duty of the legislature, rather than the courts, to amend the statute,” the city is arguing.
Cardinale, who is openly gay, argues, “But neither the Appellees, the trial court, nor the Court of Appeals have addressed the real intent and meaning of the Act.” Where there are doubts about interpretation, Cardinale argues, the state Supreme Court “must err on the side of openness, transparency, representative democracy and the public interest.”
The Georgia Supreme Court is taking on the case, stating it “has agreed to review the case to determine whether the Court of Appeals erred in interpreting the Act to mean the minutes did not have to record the names of those voting against a proposal or abstaining in a non-roll-call vote that was not unanimous,” according to a Georgia Supreme Court press release.