Local city governments vary widely in whether and how much they use a method of private, pre-vote briefings for city council members, a practice that transparency advocates say is a loophole in the state open meeting laws that should be closed.

As the Reporter recently revealed, Sandy Springs regularly holds private staff briefings about significant issues for City Council members in groups that are smaller than a voting quorum. The city says such meetings are useful and in line with the state Open Meeting Act, which requires that gatherings of officials in groups constituting a quorum be opened to the public and advertised as such. The director of the Transparency Project of Georgia says quorum-avoidance is a legal loophole that enables government secrecy, and such meetings would be illegal under tighter laws in at least two others states: Massachusetts and Tennessee.

The city of Brookhaven says it has an “occasional need” for such private briefings of council members, while Dunwoody’s city manager says his city “never has, never will” hold such private meetings.

And the Atlanta City Council halted its practice of private committee member briefings, making them public instead, after a legal challenge in 2011. Matthew Charles Cardinale, a well-known transparency gadfly who made that complaint, says he believes case law actually already bans such private briefings and could be used to successfully challenge the practice in Sandy Springs.

Dunwoody ‘never,’ Brookhaven ‘occasional’

In Dunwoody, City Manager Eric Linton said through a spokesperson that he has conversations with councilmembers from time to time. But in terms of private, fewer-than-a-quorum briefings, Linton said, “No, we don’t do that. Never have, never will.”

However, city spokesperson Jennifer Boettcher declined to elaborate on why the city has such a strong position against private council briefings. “We’ll stick with that,” she said of Linton’s statement. “…It’s just not done.”

In Brookhaven, city spokesperson Burke Brennan said, councilmembers are typically briefed through public “work sessions.” Those non-voting informational meetings, typically held immediately before the regular council meeting in the same council chamber, are open to the public and are streamed online in live video that is also archived.

“However,” Brennan added in an email, “there is the occasional need to brief more than one Councilmember (but always less than a quorum) on issues that impact two adjacent districts.”

Brennan emphasized the legality of such private briefings and said they are necessary for efficient government.

“The city of Brookhaven believes strongly in transparent government and lives up to the letter and the spirit of the Open Meetings Act. The Act does provide certain exceptions to allow for governments to run efficiently,” Brennan said. “Having an advertised public meeting every time background information is to be provided to an elected leader (or two) would slow otherwise routine operations to a halt.

“In many cases an informational meeting [or] briefing does not have anything to do with policy items to be deliberated in a City Council meeting,” he continued. “For example, a briefing to the district representative and the mayor on the technical progress of the Murphy Candler Lake dredging permit with the U.S. [Army] Corps of Engineers is not a policy discussion or a policy decision.”

Atlanta’s transparency battle

Cardinale argues that many private briefings are illegal due to a previous Georgia court decision, but no court has ruled on his interpretation of the law. Cardinale is the publisher of the Atlanta Progressive News and an activist on Atlanta City Council transparency. In 2012, he gained fame by winning a state Supreme Court case –despite being a non-attorney who represented himself — against the city for a secret vote the council conducted during a retreat on the issue of restricting public comment at committee meetings.

Matthew Charles Cardinale, who successfully fought for Atlanta City Council committee briefings to be opened to the public. (Special)

But that was not his only successful transparency battle against the council. In 2011, Cardinale sued the city over the private council committee briefings. At the time, the council’s seven committees held pre-meeting briefings, often involving many top city administration officials as well. Sometimes a quorum of council committee members was present and sometimes not. In his lawsuit, Cardinale said he had learned that the briefings were a practicing dating back 20 years or more and had evolved “to include numerous council members and executive branch members discussing city policy, often in private.”

Cardinale said in the lawsuit that several officials told him that they would give public notice about the briefings if a quorum were in attendance, but that was often determined at the very last moment or would change during the course of the meeting. Such short notice would not meeting Opening Meeting Act requirements and there was no practical way for the public to know about the policy in the first place.

After Cardinale filed the lawsuit, he said, the city offered a settlement where the council would agree to hold the briefings only with a non-quorum number of members. He says he refused that offer. The lawsuit was finally settled with terms that Cardinale said he could not fully disclose, but the bottom line was that all of the committee briefings became public. He helped to draft a 2013 city ordinance that codified the openness of the briefings.

Today, five of the seven committees have stopped holding the briefings at all. Cardinale said he believes that is partly because he pushed for the meetings to be videotaped, and partly because a new crop of councilmembers saw no point in spending time on yet another meeting prior to a voting meeting. The two committees that still hold the briefings are City Utilities and Finance/Executive, and they are public posted on the city website.

City Councilmember J.P. Matzigkeit, who represents Buckhead’s District 8, is the current chair of the City Utilities Committee. He said the pre-meeting briefing has some practical usefulness.

“It’s really, frankly, to be sure we’re all on the same page in terms of what legislation is coming before the committee…,” he said, and who might be speaking about the legislation and “are there any issues [or] questions.”

“Those meetings are open to the public and they’re fully publicized,” Matzigkeit said.

The settlement of Cardinale’s 2011 lawsuit left the underlying legal arguments unanswered. Cardinale said the city did not admit the briefings had to be public. And no court ruled whether Cardinale was correct in his interpretation of a 1994 Georgia Court of Appeals case called Jersawitz v. Fortson. In that case, the court ruled that an ad-hoc meeting of a government body should have been open to the public, even though it did not include a quorum, because its majority of attendees were government officials. Cardinale said that decision applied to the council committee briefings, and he believes to such similar meetings as those involving the Sandy Springs City Council.

“They view it as a voluntary thing, and that’s fine,” Cardinale said of the Atlanta council. “But in point of fact, there is case law that a legal advocate could use [to challenge Sandy Springs’ private briefings].”

John Ruch

John Ruch is an Atlanta-based journalist. Previously, he was Managing Editor of Reporter Newspapers.