This blog post was written by Chadd Reynolds and David R. Cook.
A recent Georgia Court of Appeals case highlighted the extent to which city officials can shield themselves from immunity for their actions at open city council meetings. The court denied the Mayor of Cumming and its City Council’s use of immunity to bar an action brought by the Attorney General under the Open Meetings Act in Gravitt v. Olens, 774 S.E.2d 263 (Ga. App. 2015) . The Attorney General brought a civil enforcement action against the City and the Mayor for violating the OMA by prohibiting a member of the public from videotaping the meeting and removing her from the meeting. The Court held that the City and the Mayor did not have the ability to prevent members of the public from recording city council meetings without being subject to potential liability under the OMA.
In April 17, 2012, Nydia Tisdale attended a Cumming City Council meeting and attempted to record it with a video camera. Once the meeting convened, Mayor Gravitt informed those present at the meeting that the use of video recording devices was prohibited. At Gravitt’s direction, the City’s Chief of Police removed Tisdale’s camera and placed it in the back of the room. Accounts from the officer and Tisdale differ as to whether she was forcibly removed from the room. Nevertheless, Tisdale returned to the meeting room and began recording the meeting on another device. Another officer reminded Tisdale that such recordings were prohibited; however, Tisdale continued to record.
The Court first rejected the City’s argument that it was entitled to assert sovereign immunity to bar the action brought by the Attorney General. The OMA states that City Council meetings are open to the public and recording devices are permitted for use during open meetings. O.C.G.A. § 50-14-1(a) – (c). The OMA further provides that the Attorney General is entitled to bring civil or criminal enforcement actions to enforce compliance with the OMA. O.C.G.A. § 50-14-5(a). The Court noted that because municipalities derive their immunity from the State, the City could not assert immunity in response to such actions. Therefore, the Court held that as a matter of law, it would be illogical for the City to bar an OMA enforcement action brought by the State.
As for the Mayor, the Court held that he was also not immune from the OMA through official immunity. The Attorney General argued for the imposition of civil penalties based on the Mayor’s negligent violation of the OMA. For the Mayor to be individually liable, the act negligently performed must be ministerial. The Court found that the provision relating to meetings being open to the public and recordings being permitted is “so clear, definite and certain as merely to require the execution of a relatively simple, specific duty,” thus constituting a ministerial duty of the Mayor. As a result, the Mayor’s assertion of official immunity did not bar the OMA enforcement action.
In this case, civil penalties were assessed under O.C.G.A. § 50-14-6 for knowingly and willfully conducting a meeting in violation of OMA. Any person who negligently violates the OMA shall be fined an amount no more than $1,000.00 for their first violation. If a person violates the OMA again “within a 12 month period from the date that the first penalty or fine was imposed,” they shall be fined no more than $2,500.00 per violation.
The superior court imposed civil penalties against the City and the Mayor “on three separate occasions” during the April 17, 2012 City Council meeting for (1) “preventing Tisdale from videotaping the meeting with a camera when the meeting convened”; (2) “physically removing Tisdale from the meeting when the meeting convened”; and (3) “again preventing Tisdale from videotaping the same meeting with a different camera when she was present during the meeting at a later time.”
In regards to the penalties assessed by the superior court against the City, the Court held the City does not fall within the definition of a “person” under the OMA and such civil penalties were therefore in error.
The Mayor’s civil penalties were also considered incorrect by the Court. The trial court imposed a $1,000.00 fine for the Mayor’s violation of (1) and a $2,500.00 fine for each (2) and (3). The Court agreed with the Mayor that the $2,500.00 penalty for (2) and the same penalty for (3) exceeded the limits set by the OMA. The Court reasoned that while the $1,000.00 violation was proper when the court assessed the fine during a summary judgment motion, the $2,500.00 fines did not occur within a 12 month period after the imposed $1,000.00 penalty. Consequently, the Court reversed the superior court as to the additional $5,000.00 penalty against the Mayor.
Lastly, the Court affirmed the award of reasonable attorney fees and litigation costs to the Attorney General for bringing the enforcement action.