After an hour-long executive session on Tuesday morning, the newly appointed attorney for the Rockdale County elections board, Terry Massey, gave his opinion that Cary Bond was still a legal member of the board and that the board could continue to carry on business other than the appointment of the third member. Haynes, in response, said he would be attending meetings but would not vote.
Massey said, regarding the question of whether Bond was a legal member of the board, "Because there has been no successor appointed, or qualified it is my legal opinion that Mr. Bond does continue to be a legal member of the board of elections."
As to the second question of whether the board could carry out any other business other than the appointment of the third member, he reflected on the use of the word "shall" in the enabling act.
"Typically, the word 'shall' is a word of command and strongly suggestive. However, the Georgia Court of Appeals and Georgia Supreme Court have found it's not always managable. In light of this case, if the two Republican and Democrat members were unable to agree to the third member, we would just shut down this board. I find it hard to believe the board of this stature could be shut down completely.
He continued, "When you have conflicting statutes or ordinances at hand, you have to figure out which one is going to govern the day... I think the word 'shall' is strongly permissive." He said the authors could have specified that no other action would be taken or could have prescribed penalities for taking other actions.
"It is my opinion Mr. Bond would continue to serve as the at large member but I would strongly suggest that the board members that you do continue this process of selecting the at large member."
Haynes replied, "I will not be voting, based on an opinion. They say half the lawyers are wrong.
"I will stay at the meeting but I will not take any official action until this has been rectified."
He said the authors of the enabling act did not intend for one party to be subjugated to another party in this process, and that both parties needed to agree on the third member, as has been the tradition and practice.
(Sept. 6, 10 a.m.) IN BRIEF: The elections board broke for a last minute executive session for "possible litigation" this morning. Attending the executive session were the board's new attorney Terry Massey, and another attorney, Harger Hoyt, representing Democratic member Garvin Haynes. In a previous called meeting in August, Haynes walked out stating he believed the meeting was an illegal one. He said after the expiration of third member Cary Bond's term in July, the board's sole business should be to appoint the new third member.
In an email sent to board members and to the media, Haynes said, "I believe this and future meetings to be illegal for several reasons that will require not only opinion of an attorney yet, court ordered if not appealed instructions... I strongly believe we do not have a Board that can function in a legal manner at this point regardless of what a local Judge may rule, either party could appeal the ruling."