Court of Appeals Explains the Limits of Penalties for Violations of Georgia’s Open Meetings Act


By: Kevin Stone

Earlier this week, in Gravitt v. Olens, 2015 WL 4314382, the Georgia Court of Appeals clarified several provisions of Georgia’s Open Meetings Act (“OMA”).  In Gravitt, during a meeting of the Cumming City Council, a member of the public, Nydia Tisdale, sought to videotape the meeting.  The Mayor announced that videotaping was prohibited (the first alleged violation of the OMA), and directed the City’s Chief of Police to move the camera, and the tripod on which it was mounted, to the rear of the meeting area (the second alleged violation). Tisdale initially resisted by shouting at the Mayor, and so the Chief asked her to step outside the meeting so he could explain the removal to her without disturbing the meeting.  At that point, Tisdale ceased her resistance, and so neither the Chief nor anyone else required that she leave.  Even so, Tisdale voluntarily stepped outside and made a phone call.  She then returned to the meeting, at which point she started using a different handheld camera.  An officer reminded Tisdale that the Mayor had asked her not to record the meeting (the third alleged violation), but took no action to stop her from recording.

The OMA requires City Council meetings to be “open to the public,” and provides that “visual and sound recording during open meetings shall be permitted.”  Based on this, the State Attorney General brought a civil action under the OMA against the City and the Mayor, individually.  The trial court: (1) denied the defendants’ motion to dismiss, which was based on sovereign and official immunity; and (2) granted summary judgment in favor of the Attorney General, ruling that the defendants violated the OMA, and imposed civil penalties and attorney fees against both defendants. 

The Court of Appeals affirmed in part and reversed in part.

As to the City, the court concluded that the City was not entitled to sovereign immunity in a civil action brought by the Attorney General on behalf of the State because the City derives its immunity from the State.  In other words, cities cannot use the State-provided immunity to bar actions brought by the State.  The good news for cities, however, is that violations of the OMA allow the imposition of civil penalties on “persons” only.  Since the OMA classifies cities as “agencies,” and not persons, cities are not subject to civil penalties.  For that reason, the court reversed the imposition of civil penalties against the City.

As to the Mayor, the Court concluded that the OMA’s mandate regarding the permissibility of recording open meetings is ministerial in nature because it is “so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.”  Because the court classified this “statutory directive” as ministerial (rather than discretionary), official immunity did not bar the OMA action brought against the Mayor, individually.

Since the Mayor was not shielded by official immunity, and the trial court found that he negligently violated the OMA on three occasions at the meeting, the trial court imposed three civil penalties on him.  The Court of Appeals, however, clarified that the OMA does not permit civil penalties for violations that occurred before the imposition of the first penalty.  Here, the first penalty was imposed in the trial court’s summary judgment order.  The second two alleged violations did not occur after entry of this order.  As a result, the Court affirmed the imposition of the first penalty, and reversed the imposition of the penalties for the two subsequent violations. 

In short, a court cannot impose civil penalties on cities for violations of the OMA.  And a court cannot impose multiple penalties on an individual when he or she commits multiple violations at a single meeting (because a court would not impose the first penalty until after the meeting had ended).  Still, in order to avoid potential liability for even a single violation, local governments and officials should be aware of the OMA’s requirements.