NPU system’s open-meeting issues should get clarity in new reforms

By John Ruch

The March 1 meeting of Buckhead’s Neighborhood Planning Unit B board wrapped up with a call for the public to exit so a private executive session could begin. As journalists have done since time immemorial, I piped up to ask the purpose of the private session and how it complied with the Georgia Open Meetings Act (OMA).

One board member tossed out the blanket exemptions for “personnel” or “legal” matters. While I was trying to figure out if the answer was either or both, another board member aggressively opined that “it doesn’t matter” — the meeting would go private regardless. The actual reason I learned later — discussion of a neighborhood legal dispute — sounded like it would not meet the strict rules for going private under the OMA.

The good news for the NPU, if not for the public, is the City believes NPUs are exempt from the OMA. Even if that’s true — and there are fertile grounds for doubt — that doesn’t shed much light on the past and future of NPU system transparency issues.

This isn’t NPU-B’s first open meeting issue, as 25 years ago it backtracked from unwarranted executive sessions under OMA scrutiny. And NPU-B is a beacon of transparency compared to some other open meetings issues at other NPUs in recent years, from totally private meetings to the banning or muting of specific members of the public. Yet nearly a half-century since it formed the NPU system as a citywide method of public input, the City of Atlanta has failed to clarify and ensure the meetings are open, instead responding to controversies with circular arguments and cop-outs.

The City’s latest opinion is simply that the OMA does not apply to NPUs due to their unusual advisory structure — though they can voluntarily follow the law’s rules. But that claim appears to be based on an opinion from the Georgia Attorney General’s office that is far less definitive and far more hesitant. The claim also fails to explain the meaning of a 25-year-old City code that requires NPUs to hold “public meetings” and which, according to press reports at the time, was specifically intended to make OMA standards apply.

Kristen Denius, the City’s chief transparency officer, is circulating the claim of OMA exemption, but also acknowledges there is more for the City to sort out to meet transparency goals.

“This is a perennial question that comes up about NPUs because NPUs are a weird creation,” she said, claiming NPUs do not meet the technical definition of a government “agency” under the OMA, despite being created, staffed and funded by the government. “…But at the same time, it makes absolutely no sense at all for them to be closing their meetings because it’s a citizen engagement tool. So we have to figure out how to make that work.”

The way it works right now is that NPUs are largely able to make up their own rules, raising the specter of private fiefdoms at worst, and at best a group of well-intentioned volunteers with no expertise in transparency and no City help when an issue like executive-session-questioning arises.

Reforms on the way

Right now is also the perfect time to change that, because the NPU system is in the midst of its first comprehensive review in over 40 years at the hands of the nonprofit Center for Civic Innovation (CCI). Last year, CCI issued a preliminary list of NPU reforms, and its full report on the system is expected as soon as this month.

Kyle Kessler is CCI’s policy and research director as well as a member of NPU-M and its delegate to the Atlanta Planning Advisory Board (APAB), an umbrella board of all NPUs. He says CCI’s reforms proposals do not specify open meetings issues, but that several provisions address it, including clearly documenting “legal expectations and standard operating procedures,” eliminating barriers to participation, and providing support services.

Kessler says the City “should publish a written legal opinion on how the Georgia Open Meetings Act and requirements in the City’s code apply to NPUs and their committees. The City should also help these all-volunteer groups fulfill these requirements by providing technical, administrative and legal support.”

The reform ideas don’t directly include open meetings, Kessler said, because CCI knew of “isolated incidents of intentional exclusion,” but not a “systemic concern.” That could be changing with the double-edged sword of the pandemic’s virtual meetings, which have boosted attendance and accessibility — something NPU-B enthusiastically embraced, by the way — but also made secrecy easier. “It’s only been very recently that I’ve heard reports of closed meetings, hosts removing participants from meetings, complaints about muting, and such issues,” Kessler said.

A history of input and OMA disputes

Mayor Maynard Jackson created the NPU system in 1974 especially to get public input on the City’s long-term comprehensive development plan; today the 25 NPUs around town provide comment to the City on virtually any issue. The City code that created the system made no mention of transparency methods. It may have been assumed that the OMA, which was only two years old at the time, would apply. The OMA sets rules for public notice and attendance of government meetings and criminal penalties for violations.

Something happened in 1995 when the Atlanta City Council amended the code to say, “all NPU and committee meetings must be open to the public.” According to press reports, that change was introduced by Lee Morris, then a Buckhead-area City Council member, now a Fulton County commissioner. Morris tells me he doesn’t recall that code or its inspiration at all. But he did remember finding it “really unusual” when, as a private citizen prior to his council service, he tried to offer public comment at an NPU-B board meeting and was told that was not allowed.

The new public meeting code requirement got its first test the very next year, once again involving NPU-B. The group drew fire from the City for amending its bylaws to allow its committees to meet in executive session for any reason its chair deemed “appropriate and necessary” — a far broader exemption than the OMA permits. According to press reports, the city attorney at the time said that violated the OMA and the City public-meeting code. Morris said at the time that the intent of the code was to make OMA standards apply to NPUs.

Yet now the City claims that the OMA does not apply to NPUs. Denius said a basis is that the OMA applies to voting quorums of government bodies and in theory, everyone who lives within an NPU district is a member, though in practice boards and committees typically represent them. The specific document from the Attorney General’s office — the OMA’s supervisor — Denius cites as an opinion came from yet another controversy, this time a 2015 dispute where NPU-R was banning the attendance of two people it said were disruptive.

The document is a letter from Assistant Attorney General Jennifer Colangelo to a complaining resident. The letter does not say NPUs are immune to the OMA. It simply argues that the question is uncertain and recommends a better legal tactic for opening up the meetings.

“Although the Georgia Supreme Court has found that the Open Meetings Act does apply to advisory boards that are similar to the Neighborhood Planning Units, I am not convinced that a court would find that the Act applies to NPUs,” the letter says, citing the City’s public-meeting code as an alternative.  “…I believe that it will be more efficient to address this issue through the enforcement of this law, rather than through Open Meetings Act litigation that may not be successful.”

Legal and political tactics

You can tie your brain in knots going down the legal rabbit hole on this one. There’s no question the public-meeting code applies to NPUs — but what does that even mean, if not adhering to the OMA-minimum standard? Denius could not immediately tell me how the code applies to the current situation of NPU-B’s questionable executive session.

Back in the NPU-R controversy, the City made more of a political than a legal argument, smoothly equating any kind of open-meeting standards with an unholy meddling in the NPUs’ sacrosanct right to self-govern. It makes a virtue of under-resourcing.

I heard similar lines from Denius. NPUs, she said, “may not be strictly subject to the Open Meeting Act, but at the same time, they should be embracing the spirit of the Open Meeting Act as much as possible.” But unless they voluntarily apply the OMA to themselves in their bylaws, she claimed, there’s little officials can do about issues like executive sessions. “We don’t manage them to the point of telling them how to behave,” she said.

Seems to me this works both ways. If NPUs are indeed free to ignore their parent government’s desire for open meetings — in a system whose entire purpose is public input — then surely the government is free to ignore them, too. Why doesn’t the City simply tell NPUs that they won’t get special treatment like visits from City planners and officials if they don’t meet in accordance with the OMA? I asked Denius but did not get an immediate response.

Kessler notes another kind of transparency watchdog is becoming more toothless as well. “Journalists play a key role here, too,” he said, noting the dwindling of once-robust NPU coverage by the likes of the AJC. “Today, few NPUs get regular media coverage, but reporting would increase transparency and accountability.”

This journalist remains pretty sure that Buckhead residents would like and have the right to know about what NPU-B’s chair later called “a legal issue that arose in one neighborhood that potentially could affect others in NPU-B.” But when the City’s chief transparency officer can’t even explain how the law applies to executive sessions, how are a reporter and volunteer board members supposed to figure it out on a Tuesday night Zoom?