Georgia Court Blocks Appoint of Augusta Fire Chief

The Superior Court for Richmond County has blocked the appointment of Antonio Burden as fire chief for the City of Augusta because the city failed to comply with the state’s public records law. The ruling handed down last week by Judge Jesse C. Stone, resulted from a suit brought by four local media outlets, the Augusta Press, the Augusta Chronicle, WJBF-TV and WRDW-TV.

The media outlets requested information on the four finalists for the Augusta fire chief’s opening who were being interviewed. As explained in the decision:

  • On April 13, 2021, the Augusta Chronicle sent the City an open records request for the
  • names and cities of candidates to be interviewed.
  • On April 15, 2021, the Augusta Press and W JBF-TV sent the City detailed information requests about the interviewees.
  • On April 15, 2021, the City conducted closed interviews of four candidates.
  • On April 20, 2021, members of the City Commission met in executive session to discuss the applicants.
  • On April 20 and 21, 2021, the City responded to the open records requests by providing Media a resume and other redacted information concerning the sole “finalist,” Antonio Burden.
  • The City provided Media no information on the other three interviewees.
  • The parties appear to accept that the documents in question are public records. Plaintiffs and Defendant all rely on OCGA Sec. 50-18- 72(a)(11)).
  • Paragraph 11 is one of fifty exceptions or exemptions to Georgia’s Open Records Act. It reads in relevant part as follows:
  • “(a) Public disclosure shall not be required for records that are: … (11) [1] Records which identify persons applying for or under consideration for employment or appointment as executive head of an agency….. be provided, however, that at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position of executive head of an agency….. all documents concerning as many as three persons under consideration whom the agency has determined to be the best qualified for the position shall be subject to inspection and copying. [2] Prior to the release of these documents, an agency may allow such a person to decline being considered further for the position rather than have documents pertaining to such person released. [3] In that event, the agency shall release the documents of the next most qualified person under consideration who does not decline the position.”
  • Georgia’s Open Records Act and its companion law, the Open Meetings Act, both serve the important public policy of bringing transparency and “sunshine” to the process of governing.
  • They help educate the citizenry about public affairs and help hold public officials to a high level of accountability.
  • Turning to OCGA §50-18- 70(a)(11), the first portion of the first sentence sets forth the exemption from disclosure, records which identify persons applying for or under consideration for employment as executive head of an agency.
  • The first sentence of OCGA §50-18- 70(a)(11) ends with a major proviso that reads: “provided, however, that at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position of executive head of an agency “… “all documents concerning as many as three persons under consideration whom the agency has determined to be the best qualified for the position shall be subject to inspection and copying.”
  • There has been much discussion between the parties about the meaning of “as many as.”
  • The City argues that it puts a ceiling on the number of applicants that it must disclose, below which it lies within the City’s discretion to disclose just the one “finalist.”
  • Plaintiffs argue that the phrase means “at least,” mandating that the City must disclose three applicants.
  • This court does not adopt either interpretation.
  • OCGA §50-18-70(a)(11) states that the City must disclose the three “best qualified” applicants “under consideration.”
  • Who are the best qualified applicants is left for determination by the City.
  • In this case, it might be the applicants who scored the highest points.
  • Here, the Media requests were made on or before the date of the interviews and prior to the executive session in which the candidates were discussed.
  • Clearly, at least the four interviewees were still under consideration when the ORA requests were made.
  • The interim injunctive relief sought by Plaintiffs is appropriate.
  • The ORA confers on the court the power to utilize remedies at law and equity.
  • The postponement of final action on the Fire Chief appointment until the City is in full compliance with the ORA is expressly addressed in O.C.G.A. 50-18-72(a)(11).
  • Issuing a preliminary injunction at this point is compelled to avoid the matter becoming moot.

The court ordered the city to produce the requested information within three days, and take no official action regarding the appointment of a fire chief for at least fourteen days after the required information is released.

Here is a copy of the decision.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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