A decision to go into executive session Tuesday night by the Bulloch County Board of Commissioners has prompted a discussion on whether or not the use of the closed session was necessary.
While the decision to go into executive session had the support of County Attorney Jeff Akins, an examination of neighboring counties across the region indicates that Tuesday’s practice is not the norm.
Georgia Open Meetings Act Primer
The Georgia Open Meetings Act (OMA) is a decades-old state law enacted by the Georgia legislature alongside the Georgia Open Records Act (ORA). Together, the two constitute Georgia’s sunshine laws, affording access to business, in meetings and in records, of government.
Executive sessions are closed portions of otherwise open meetings in which elected officials deliberate outside of the public view, often with legal counsel and some agency employees.
Under Georgia law, the permitted uses for executive session includes discussion of:
- Pending or potential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any employee of the agency
- Real estate matters such as
- Authorization of a settlement of any matter;
- Authorization of negotiations to purchase, dispose of, or lease property;
- Authorization of the ordering of an appraisal related to #2;
- Entering into a contract to purchase, dispose of, or lease property;
- Entering into an option to purchase, dispose of, or lease real estate subject to approval in subsequent vote.
- The appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee or interviewing applicants for the position of the executive head of an agency (emphasis added)
- Matters of Boards of Trustees or the investment committee of any public retirement system.
Elected officials can discuss how they will vote on those matters while in executive session, but no vote is binding unless it is taken upon a return to open session.
OCGA 50-14-6 provides for penalties for those conducting or participating in meetings in violation of the OMA, including criminal penalties of a misdemeanor and upwards of a $1,000 fine and a civil penalty if action is brought by another party. The Georgia Attorney General’s Office has also, in the past, required additional open government training and issued letters of reprimand.
Bulloch County Commission Executive Session
The use of executive session Tuesday night preceded two agenda items involving appointments: the appointment of three members to the Bulloch County Public Facilities Authority and the appointment of one member to the Savannah Harbor-Interstate 16 Corridor Joint Development Authority.
The meeting agenda referenced executive session for “personnel and pending litigation.” Just after 7:00 p.m., a motion was made to go into executive session by Commissioner Timmy Rushing, seconded by Commissioner Anthony Simmons, and approved unanimously.
Commission room video footage of the meeting returning to open session after executive session does not exist as the livestream did not resume, however, commissioners voted unanimously to appoint Simmons, Conner, and Rushing to the Public Facilities Board and voted 4-2 to appoint Mosley to the JDA. All of the appointments involved and ultimately resulted in the appointment of elected officials to various boards.
‘May’ vs. ‘Shall’
The Georgia Association of County Commissioners of Georgia, a lobbying organization that rallies lawmakers at the Capitol and of which every county is a dues-paying member, often trains elected officials that executive session should be used because of a requirement under the law, but no such verbiage exists.
OCGA 50-14-3(b) of Georgia OMA is clear with the use of ‘shall be permitted,’ meaning closed session is allowed, but not mandatory.
In some circumstances, such as deliberating the acquisition of real estate, it is not in the best interest of taxpayers for those discussions to be had in public, but in other matters, such as personnel or pending litigation, there is no legal mandate requiring elected officials to conduct business in a closed session.
A 1998 unofficial opinion from Assistant Georgia Attorney General Christopher McGraw* wrote that his office’s interpretation of the Open Meetings Act was that elected officials ‘may’ go into executive session for ‘deliberations to fill an opening in an agency related to the board…with the vote being taken in public.’ The opinion makes no reference to a requirement to do so. (For reference, the term ‘agency’ is a blanket term utilized in the OMA and the Georgia Open Records Act when referring to government bodies which are subject to the state’s sunshine laws.)
Strict Interpretation of ‘Public Officer, Employee or Executive Head of An Agency’
Both the Georgia legislature, the courts, and the Georgia Attorney General’s Office have held for decades that Georgia’s sunshine laws should lean toward transparency and not government.
“The law was enacted in the public interest to protect both individuals and the public from “closed door” politics as well as potential abuse of individuals and misuse of power. Consequently, any exception to the law urged by one presumably subject to its provisions must be carefully scrutinized.” – Unofficial AG Opinion 95-15
“The open meetings law must be broadly construed to affect its remedial and protective purposes.” – Atlanta Journal v. Hill, 257 Ga. 398, 399 (1987).
“Openness and transparency are vital to upholding the public trust and maintaining an efficient, well functioning government and bureaucracy.” – Attorney General Chris Carr (2019)
By the agenda reference for executive session listing ‘personnel,’ board appointments do not rise to the standard. Volunteer positions are not county ‘personnel.’
Under the most stringent interpretation of the definition of ‘public officer,’ ‘employee,’ or ‘executive agency head,’ appointments to boards and councils again fail to meet the standard. A member of a board for a development authority, airport committee, or other similar body does not become a public officer or an employee simply because of their appointment.
Even the ACCG’s training manual for elected commissioners uses examples of personnel to include actual staff, county attorneys, and county managers.
What Do Other Counties Do?
Traditionally, executive sessions are not utilized for board appointments. Regionally, there are a plethora of examples of open discussion before the public.
In Bryan, Effingham, Evans, Jenkins, and Screven counties alike, county commissioners discuss nominations and appointments to the respective hospital boards, development authorities, transportation boards and more – all in open public meetings.
- In Effingham County, during the November 2024 meeting, Commissioner Jamie DeLoach was appointed to serve on the Joint Development Authority Board.
- In November 2024, Screven County Commissioners made appointments to the Board of Assessors during the regular meeting. Jenkins County Commissioners did the same in an open meeting in 2023.
- In January 2025, Evans County Commissioners made appointments to the Tax Assessor Board and the Board of Health in an open meeting.
- In December 2025, Bryan County Commissioners made appointments to the Groundwater Sustainability Program (GSP) Advisory Committee in an open meeting.
- In May 2023, Jenkins County commissioners discussed a Region 6 EMS Council appointment in an open meeting.
- In November 2024, Liberty County Commissioners appointed members to the Cultural & Historical Resource Committee and the Development Authority. In October, they did the same thing in an open meeting for the Liberty Regional Medical Center board.
Bulloch County has also participated in public discussion of board members, ranging from Hospital Authority Board of Directors in April 2021 and Airport Committee appointments in May 2021 Planning & Zoning Commission in January 2024 and the Coastal Area District Development Authority (CADDA) in January 2022 and again in February 2024. Similarly, Commissioners have voted in open session on the matters involving the service of Vice Chair of the County Commissioners. In all of these instances, the nominees were included in the agenda packet ahead of the meeting and the item appeared on the consent agenda or under ‘New Business.’
*McGraw was not the constitutional officer leading the state agency and his interpretation does not equate to enforceability like state law. The unofficial opinion merely indicates how the office handled the code section at that time and under that administration.
