Local governments in Newton County and across the state regularly meet in executive sessions, closed to the public, to discuss sensitive topics, but it’s not illegal for elected officials to share information discussed in executive sessions, according to one of the state’s leading open meetings experts.
David Hudson, a lawyer for the Georgia Press Association and an expert on Georgia’s open meetings and open records laws, wrote in a December article that an elected official is not barred from sharing information discussed in executive session if the official believes sharing the information is in the public’s best interest.
"From time to time, elected officials, such as city council members, county commissioners, school board members or appointed members of the boards of government authorities, will receive advice from someone – usually a lawyer representing the public entity – that the public official may not disclose information learned in a closed session. Such advice has no basis in fact or in law," Hudson wrote in the December 2013 edition of the Georgia Press Bulletin.
"Elected officials are subject only to the voters, and may not be disciplined or discharged from office by their fellow elected members."
Under Georgia law, executive sessions can only be held to discuss pending litigation, the acquisition of real estate or certain personnel issues. Georgia law is clear: Governments don’t have to hold executive sessions, but they may do so if they feel public discussion would harm the public’s interest. Two examples would be discussing legal strategy in a pending lawsuit, or discussing how much a government is willing to pay for land before a formal offer is finalized.
"In fact, under the state’s open meetings, a public agency never has to close its meetings. The Supreme Court of Georgia has always said, if there is any doubt, do not close," said Hollie Manheimer, an attorney and executive director of Georgia First Amendment Foundation, a group that promotes openness in government.
Elected officials sometimes discuss matters in an executive session that are actually illegal to talk about behind closed doors, but even in cases where an executive session is legal, Hudson and Manheimer say officials don’t have to keep quiet.
"Certainly, one would think the fact that it is not illegal to share information from (a) closed session would encourage public agency members to speak out, particularly those who disagree with the subject matter of the closed session meeting," Manheimer said.
In his article, Hudson quoted from the Georgia Constitution (Article I, Section II, Paragraph I): "Public officers are trustees and servants of the people and are at all times amenable to them."
He then wrote: "Thus, if the public officer learns of something that occurs in a closed session that he or she believes should be known by the people to whom the public officer is a servant, there is no prohibition in Georgia law that would prevent such disclosure or subject the public officer to any measure of discipline.
"The officer may create ill will with other members of the public agency, but that is a factor that the public officer will have to weigh against what he or she feels is an overriding duty to the public that he or she serves."
Local government entities generally have their own codes of ethics as well. Covington City Attorney Ed Crudup said he was "not aware of any policy, procedure or rule of the council of the city of Covington that addresses this issue" of a local penalty for sharing information discussed in a closed session. County Attorney Tommy Craig and Board of Education attorney W. Kent Campbell did not respond with their legal opinions this week.
Jim Zachary, creator of the Transparency Project of Georgia and editor of two Georgia newspapers, said, "More open, transparent government is in everyone’s best interest. Elected officials with nothing to hide simply shouldn’t hide.
"Now, thanks to Hudson, elected officials who choose to do the right thing and tell citizens what is going on behind closed doors when they think it is in the public’s best interest to know, can do so without fear of running afoul of the law."
To read other opinions on the topic and related issues, visit transparencyprojectofgeorgia.com.