In a special called meeting on the afternoon of May 14, the Sandy Springs City Council made one of the biggest, most dramatic and most surprising decisions in the city’s history: a reversal of much of its pioneering model of privatized city services, which had drawn international attention and underpinned Sandy Springs’ identity.
Despite the significance and complexity of the decision, the councilmembers had no debate. Before a unanimous approval, some councilmembers asked apparently rhetorical questions of the city manager so he could emphasize certain talking points, and a couple of them gave explanations of a decision they had already made prior to the meeting.
In a nation of open government and a state with open meeting laws, how is it possible that a city council could deliberate such a major topic in private, with the general public able to see only the official vote and some explanatory speeches? The answer is the city’s common practice of gathering councilmembers in groups of three – one fewer than a voting quorum — for private briefing sessions. It’s a method that has allowed private council considerations on such major local topics as north end redevelopment, affordable housing policy and the Georgia Department of Transportation’s toll lanes on Ga. 400 and I-285.
The city says the method is well-intentioned and completely legal under the state Open Meetings Act, which essentially allows governmental officials to meet privately if there are too few of them to officially vote. Critics say it’s a loophole in the law that should be closed and, while technically legal, is against the spirit of open government. In fact, such meetings would be illegal in at least two other states with tighter transparency laws.
“We have no meetings where action is taken without a quorum,” Mayor Rusty Paul said in a written statement. “When we have briefings on issues of interest to the council, we take steps to ensure that every such briefing fully complies with Georgia’s open meetings laws.”
Jim Zachary, editor of the Valdosta Daily Times and director of the Transparency Project of Georgia, called the quorum-dodging method of private meetings “game-playing” in an opinion article published earlier this year in which he argued for the law to be changed.
“It is technically legal. It is also absolutely wrong,” Zachary wrote. “Being legal and being right are not always the same thing… The public should not only be present for the votes on policy but should be able to listen to all the deliberations and be made aware of how elected officials make decisions.”
Later, in an email, he said, “Unfortunately, [the method] is essentially a loophole in the Georgia Open Meetings Act, and while I am confident it violates the spirit of the law, it does not violate the letter of the law.”
Former City Councilmember Karen Meinzen McEnerny, who sat on the first City Council after the city’s 2005 incorporation and served two terms, said the method of private briefings was useful and sometimes involved deliberation and debate.
“Yeah, you would try to — if you felt they weren’t going to support whatever you want, you might give them some arguments that might change their mind,” McEnerny said of the debates among the three councilmembers in private briefings with city staff members. And by asking city staff, she said, it was easy to figure out what the other group of councilmembers was thinking as well. “But we all felt we needed to listen to the public the following Tuesday [at the council meeting],” she added.
“Briefing sessions are helpful… and they’re perfectly legal,” McEnerny said. But she also suggested that at least some of them, particularly briefings about zoning cases, be opened to the public.
“Transparency is a good thing,” she said.
Sandy Springs is not the only city to take advantage of the quorum rule in the Open Meeting Law. In the neighboring city of Roswell, the city manager used it last year to hold private meetings about a controversial road project.
Roswell City Councilmember Mike Palermo revealed and criticized the meetings, saying they should have been public. “I believe any three-person meeting [of councilmembers] should have significant justification disclosed to residents,” Palermo said in an email.
In Tennessee, such meetings would need more than justification – they would have to be public, according John Dunn, spokesperson for the state office that oversees open meetings law. Tennessee’s law covers gathering of as few as two members of a governing body. “Therefore, any time two or more members of a governing body get together, they should not discuss or deliberate toward a decision that must be voted on by a quorum of a governing body,” Dunn said.
In Massachusetts 15 years ago, residents successfully sued the Boston City Council for 11 secret briefing meetings about a controversial city agency and a laboratory accident. The city claimed the meetings were legal because they avoided a quorum at any given time. A court blasted that method as an illegal “musical chairs” strategy, ruling the law’s intent is not to avoid a quorum, but to avoid government secrecy.
In Sandy Springs, the private briefing method is something of an open secret. Paul occasionally remarks about how rare open disagreement is among councilmembers at council meetings, and councilmembers sometimes refer to debates happening beforehand in conference rooms. But exactly how the method is used and how deeply it affects policy has gone unexamined.
City spokesperson Sharon Kraun defended the city government’s actions, saying in an email, “It is a common practice to brief members of the council to provide them with information they need in order to make an informed decision. … The current open meetings laws balance assurance that elected officials are informed, so they are able to make educated, quality decisions in the best interests of their constituents, and that all of their decisions are made publicly and with allowed public comment.”
In an investigation last year, the Reporter revealed extensive secret city discussions about north end redevelopment and affordable housing policies, including two back-to-back meetings, each with three councilmembers, to privately review a particular concept. Former City Councilmember Gabriel Sterling said at the time those discussions were kept private for political reasons, including a lack of council consensus and the sensitivity of issues of poverty and race.
GDOT’s toll lanes is another controversial topic where private meetings have affected policy without leaving written records. Sandy Springs has had significant influence on GDOT’s proposals for interchange locations and has suggested an elaborate, controversial plan for a new one in Perimeter Center that would require demolishing eight homes.
To discover how the city proposed and influenced such complex concepts, the Reporter earlier this year sought about 14 months’ worth of emails about toll lanes from the offices of the mayor and the city manager. The city at first wrongly claimed that no such records exist, and after three months of appeals, it remains unclear whether all the records were provided. One email left out of Sandy Springs’ response was later discovered in the files of Doraville’s mayor.
However, the documents provided found only a handful of emails mentioning toll lanes, despite the city government’s pervasive influence and involvement. When asked how the city was arranging and conducting its influence on the toll lanes proposals, Kraun responded, “Face-to-face and telephone communication are effective tools for communication.”
Tim Matthews, GDOT’s project manager on the toll lanes, later said he has frequently met in person with councilmembers, singly or in groups, to go over documents and discuss concerns.
McEnerny said that when she was on the council, members were not privately briefed beforehand about every single agenda item. However, the three-member private meeting method was used every Friday afternoon before council meetings to discuss pending zoning cases, and for quarterly briefings on Public Works’ capital improvement projects.
McEnerny did not criticize the three-member meetings, but suggested some changes that she thinks would increase citizen involvement, including issuing the council agenda a week beforehand rather than the current practice of the Friday before a Tuesday meeting. “That would allow more people to be aware of the subject and potentially contact their councilmember,” she said.
“Another idea would be to make the zoning brief[ing] sessions open to the public if they wanted to attend,” McEnerny said, adding that in general, it is important for citizens to hear council deliberations.
“It’s very, very helpful to understand the dynamics of discussion on the council,” she said, as open comments allow “you to understand where your councilman or –woman is coming from.”
—Evelyn Andrews contributed