Deriso v. Cooper

Nichols, Justice. The appeal and cross appeal present the question of whether or not a county board of education may have unofficial meetings or meetings closed to the public to discuss and decide questions that fall within the enumerated exceptions to the "Sunshine Law.” Code Ann. §§ 40-3302, 40-3303. Cooper et al., patrons of the Sumter County schools, contend, in essence, that Deriso et al., members of the Sumter County Board of Education, are required by Article VIII, Section V, Paragraph III of the Constitution of Georgia of 1976 (Code Ann. § 2-5303) to keep all meetings of the school board open to the public at all times, regardless of the subject matter under consideration. That section of our constitution provides: "All official meetings of County or Area Boards of Education shall be open to the public.” The school board members contend that the word "official” should be given [787] effect rather than ignored; that the "Sunshine Law,” Code Ann. §§ 40-3302, 40-3303, squares with, rather than violates, the quoted constitutional provision by specifically exempting certain enumerated investigative activities, deliberations, discussions, considerations and hearings, including consultations with legal counsel, from the requirement that "All meetings ... at which official actions are to be taken . . . shall be open to the public at all times.” Code Ann. § 40-3301. The school board members also contend that Code Ann. § 23-802 is consistent with the county board of education open meetings provision of our constitution in permitting private executive sessions before or after public meetings provided that the ayes and nays of any votes taken during any executive session shall have been recorded at the conclusion of the executive session. Certainly it is more than mere coincidence that the word "official” appears in both our constitution and the "Sunshine Law.” The foregoing sections of our constitution and laws can be harmonized. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 701 (10 SE2d 375) (1940). They authorize at least the following, which is dispositive of all issues in the appeal and cross appeal: The Sumter County Board of Education may meet in private (closed to the public) executive or unofficial session either before or after official meetings that are open to the public. At such private sessions, any of the subject matters enumerated in the "Sunshine Law” as exceptions to the public meetings requirements may be discussed, deliberated, considered and heard. No vote need be taken during these private sessions but if any vote is taken, the aye and nay votes of each board member shall be recorded at the conclusion of the executive session and shall become a part of the official minutes or records of the board that are open to public inspection pursuant to Code Ann. § 40-3301(b). The board’s procedure of utilizing paper ballots instead of oral responses to determine the votes does not violate Code Ann. § 40-3301(b) when the results immediately are announced, thereafter promptly are recorded in the board’s minutes and are open to public inspection. Our Constitution states that in the event of a vacancy such as in this case on a county board of [788] education, "the remaining members of such county board of education shall by secret ballot elect his successor.” Code Ann. § 2-5302. Argued March 10, 1980 Decided April 29, 1980 Rehearing denied May 20, 1980. Crisp, Oxford & Gatewood, Henry L. Crisp, for appellants. L. Lyn O’Berry, Jonathan Zimring, for appellees. Judgment reversed in Case No. 35983; Judgment affirmed in Case No. 35984. All the Justices concur, except Hill, J., who concurs specially, and Jordan, P. J., who dissents. Undercofler, C. J., disqualified.