Atlanta Journal & Atlanta Constitution v. Babush

Weltner, Justice,

dissenting.

It is uncontroverted that the Sunshine Law “was enacted in the public interest to protect the public — both individuals and the public generally — from ‘closed door’ politics and the potential abuse of individuals and the misuse of power such policies entail. Therefore, the Act must be broadly construed to effect its remedial and protective purposes.” Atlanta Journal v. Hill,- 257 Ga. 398, 399 (359 SE2d 913) (1987).

Thus, it follows necessarily that to construe the Act broadly requires that its exceptions be construed narrowly. See 73 AmJur2d 463, “Statutes,” § 313 (narrow construction applied to statutory exceptions, particularly where the statute promotes public welfare or where, in general, the law itself is entitled to a liberal construction).

In the light of this analysis, I address the holdings of the opinion. 1. The majority holds that OCGA § 50-14-4 (6), which permits closed meetings when an “agency is discussing the appointment, employment, disciplinary action, or dismissal of a public officer or employee,” applies in this case. Thus, they say, the Board may close its *794meeting under this “personnel exception” of the Sunshine Law.1

To apply the majority’s reasoning, however, is to write into the Sunshine Law a total exemption of the Board, which is the exact opposite of what the General Assembly has done. Because all of the work of the State Personnel Board concerns to some degree “personnel action” on the part of some public agency, the whole work of that Board now may be conducted in secret.

2. There is another reason, equally compelling, why the Board’s meetings must be in the open.

That is because the rules of the State Personnel Board expressly so provide.

(a) Par. E. 302 of the Board’s rules provides: “No hearing shall be held in closed or executive session. ...”

In a recent case, we held: “But we are compelled to give meaning to the words ‘all meetings . . . shall be open.’ The import is quite plain. They leave no room for closed meetings.” City of Atlanta v. Pac. &c. Co., 257 Ga. 587, 588 (361 SE2d 484) (1987). The import — here too — is quite plain. In interpreting this same provision, the (former) Attorney General ruled: “In Regulation E.302 of the Rules and Regulations of the State Personnel Board . . . the board has required that all State Merit System appeals be heard in open meetings. Therefore, by regulation of the State Personnel Board, all hearings of State Merit System appeals must be in open meetings.” Op. Atty. Gen. 78-55 at p. 121.

That ruling has stood unchallenged for ten years. Had the Board so desired, it could have altered its regulations to narrow its own requirement of public hearings for “all. . . appeals.” Had it wished, the Board could have created a more restricted provision that would pertain only to the taking of testimony. This, of course, it has not done. Accordingly, the Board’s rule must be held to apply to “all . . . appeals,” and that includes, of course, the appeal of Captain Coleman.

(b) We should not attempt to avoid the implications of our very recent holding in City of Atlanta, supra, by expanding the term “hearing,” as contained in the Board’s rules, to include all the indicia of a judicial tribunal.

(Nor should we approve a “repeal” based upon evidence that the Board, in at least 200 instances since 1985, regularly has disregarded *795its own rules. See Opinion, p. 792.)

Decided February 5, 1988. Dow, Lohnes & Albertson, Terrence B. Adamson, Peter C. Can-field, for Atlanta Journal and Atlanta Constitution et al. Bondurant, Mixson & Elmore, Emmet J. Bondurant, Dirk G. Christensen, for Babush et al. Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, for State of Georgia. Hull, Towill, Norman & Barrett, David E. Hudson, Sell & Melton, Ed S. Sell III, Young, Layfield & Rothschild, L. Martelle Lay field, Jr., amici curiae.

3. The exclusion of the public is forbidden by state statute and by the Board’s own rules. While this court has the power to define away any or all of the rights granted to our citizens by the General Assembly,2 our duty ought to lead us in other directions.

By saying that the Board’s rule applies only to meetings at which testimony is received, the Board has repealed it. And by means of a talismanic invocation of “personnel,” it has removed a state agency from the coverage of the Sunshine Law.

That is unfortunate. The Statute and the Rule would confer a vital and valuable right upon members of the public. It is a right that can be enforced.3

It is a right that ought to be enforced.

Reliance upon that exception is misplaced. The State Personnel Board at no time discussed whether it would (within the several elements of the “personnel exception”) appoint, employ, discipline, or dismiss Captain Coleman. Indeed, the Board had no power to take any of those steps regarding Captain Coleman. Rather, its function was to provide a quasi-judicial administrative appeal of the personnel action of another agency of state government.

Hence, the State Personnel Board’s disposition of an appeal from another agency’s decision was no more “personnel action” than was the trial court’s ruling in its subsequent review of this very case.

Recall Bishop Hadley’s famous phrase: “Nay whoever hath an absolute authority to interpret any written or spoken laws it is he who is the lawgiver to all intents and purposes and not the person who first wrote or spake them.” H. L. A. Hart, The Concept of Law, Oxford, 1962, p. 137.

“Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced.” OCGA § 9-6-24.