The Lt. Gov. filed a complaint accusing Decatur of being a sanctuary city, and things got complicated

Posted by Dan Whisenhunt May 3, 2018

Immigration Enforcement Review Board members met in November to discuss the complaint against Decatur. Left to right: State assistant district attorney Jennifer Colangelo, Immigration Enforcement Review board member Phil Kent and board Chairman, Shawn Hanley. File photo by Mariann Martin

Lt. Gov. Casey Cagle filed a complaint against the city of Decatur in November accusing officials of violating state law barring sanctuary cities.

The complaint, lodged with the state’s little-known Immigration Enforcement Review Board, has become a hot mess in the weeks since it was filed.

One member of the board has recused himself over allegations of bias in favor of Cagle, but other board members facing similar allegations have not done so. Four of the board’s seven members potentially have conflicts of interest, including Phil Kent, the member who recused himself. Two other members of the board are appointed by Cagle. The board’s chair, Shawn Hanley, also criticized Decatur’s policy in an interview with the Atlanta Journal Constitution.

 

 

The allegations of bias are one issue dogging the complaint. Another issue involves accusations the IERB isn’t complying with the state open records and open meetings laws.

The city filed two lawsuits against the board alleging open meetings and open records violations. The city has also questioned the extent of the IERB’s legal authority.

The board hired a private investigator to interview Decatur officials, but the city declined to allow those interviews, citing questions about whether the board can legally hire an outside investigator to conduct investigations on behalf of the IERB. The investigator, Joe Gavalis, was not immediately available for comment Thursday morning.

It’s not known what it will cost the city to defend this case or what the state is paying the investigator and an outside attorney hired to assist the board.

City Attorney Bryan Downs declined to answer that question, saying, “It is my professional opinion that it would be detrimental to the City’s defense of the IERB case to provide an estimate of legal costs involved at this juncture, especially since IERB Chair Shawn Hanley suggested you ask me for that information. As you know, the City is putting forth a vigorous defense to an invalid, politically-motivated proceeding.”

In fairness, Decaturish asked Hanley the same thing.

Hanley did not respond to questions about the cost of hiring the investigator and outside counsel.

One thing is certain: The taxpayers will pick up the bill either way.

Throughout the investigation, Cagle has ratcheted up rhetoric against the city. He’s called for Decatur to be stripped of state funding and suggesting its elected officials would be charged with crimes. Cagle is running for governor and the complaint is seen as a thinly-veiled attempt to boost his conservative credentials heading into the primary election.

Meanwhile, the Dustin Inman Society, a hard-line immigration group that has filed most of the complaints received by the IERB board, says Cagle’s complaint is without merit. The group’s founder, D.A. King, is ticked off that IERB fast-tracked Cagle’s complaint while his group has had complaints pending since 2015. Hanley has said Cagle’s political power has not affected how the board has handled the case.

The heart of the controversy involves an allegation that’s objectively not true. Decatur is not a sanctuary city. Decatur’s City Commission has flatly refused to adopt “sanctuary city” status as other cities around the country have done. A resident requested the city do so at the Dec. 19, 2016 City Commission meeting. Mayor Patti Garrett said the city could not do this, citing state law. The City Commission received a similar request during public comments at a meeting in February 2017 and Garrett reiterated the city’s position, saying that the city would be at risk of losing state funds if it adopted a “sanctuary city” policy.

Cagle has accused the city of Decatur of violating state law prohibiting “sanctuary cities” because of the city’s decision to put a longstanding policy in writing regarding cooperation with Immigration and Customs Enforcement. The city said it does not detain immigrants without a valid warrant from ICE and never has. Officers who violate the policy could face disciplinary action.

In recent days, yet another controversy has bubbled up surrounding the IERB. Rusi Patel, a lawyer for the Georgia Municipal Association, accused the panel of violating state open records laws by denying GMA’s requests without any legal rationale.

“Although my previous two requests for an electronic copy of the transcript of the February 28th meeting have been denied, I have yet to be provided a notification of the specific legal authority, as required by state law,” Patel said. “I strongly suspect that this is because there is actually not any specific legal authority for the denials.”

Hanley said that Patel’s email alleging violations is being treated as an open records request.

“There are a lot of legal questions in it and it’s being looked at by the proper people,” he said.

The IERB has not filed a formal response to Decatur’s lawsuits, which Hanley says are “frivolous.”

There are two upcoming IERB meetings devoted to the complaint against Decatur. There will be a special called meeting of the review panel handling the case on Wednesday, May 9. It will happen at 10 a.m. and will be held via conference call.

“To participate in the meeting, please call 404-732-0173. The meeting ID is 1128,” the meeting announcement says.

The following Tuesday, May 15, the IERB will meet at 10 a.m. in room 506 of the Coverdell Legislative Office Building. There will be hearings on three cases, including Decatur’s.

Here is Patel’s full email to the IERB.

Chairman Hanley (and Vice-Chairman Balli),

I thought I would email you directly as it seems clear that you, as chairman of the Immigration Enforcement Review Board (IERB), are making decisions regarding records requests to the IERB. These decisions may be made in consultation with other members of the IERB and/or with consultation of the Georgia Attorney General’s Office. I do not know. First, I wanted to express how much I (and GMA) appreciates the work of Ms. Schwinne. She is always very quick to respond to my queries and provide answers (whether I agree with the answers or not). She takes on her extra job duties for the IERB extremely professionally and I truly do appreciate everything she does to make everything flow as well as it can. I fully understand her work with the IERB is done at the direction of the board itself.

My records request from April 12th  (and renewal of the request on April 24th) was what I would have hoped was a rather simple request, one of the kind that city clerks and city officials receive and provide the records throughout the state on a daily basis. Unfortunately, it seems that the IERB, through your direction, does not view it as a rather simple records request.  My request, for an electronic copy of the transcript of the February 28th meeting, has been denied twice (with the vague reasoning in the below emails). As you can see in the below email chain, I did contact the court reporting service I was directed to by the IERB and obtained quotes for a price of the transcript. I should note that the court reporting service, the second time I called them, notified me that they could not sell me the transcript without permission from the IERB. That, in and of itself, reveals the problem with the responses I have received from the IERB about these records, which, as far as I can tell, should be open records under the Georgia sunshine laws.

Although I have taught open records and open meetings laws to local government officials for nearly a decade, I will never claim to know all there is to know about the open records laws and I certainly will never claim to have memorized all of the exceptions to the open records laws. However, as a requester of records, I am not required to know all of the exceptions to the open records act and I am certainly not required to guess as to the legal authority of the basis of a denial. O.C.G.A. 50-18-71(d) specifically requires an agency (of which the IERB certainly is an agency under the definition in O.C.G.A. 50-18-70) to “notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph within a reasonable amount of time not to exceed three business days.” Although my previous two requests for an electronic copy of the transcript of the February 28th meeting have been denied, I have yet to be provided a notification of the specific legal authority, as required by state law. I strongly suspect that this is because there is actually not any specific legal authority for the denials.

The IERB rules to which you vaguely reference in your previous email, only speak to a complaining party or the applicable public agency which is requesting a hearing to be transcribed and the process for requesting such. (see Rule 291-2-.03(2)). Regardless, the state open records laws cannot be usurped by rules of a board. State law controls over rules and I have yet to receive any specific legal authority from the IERB as to the reason for the denial of my two requests for the electronic copy of the transcript of the February 28th meeting, again, as required by state law. I would also like to note that the IERB is not part of the judicial branch of government, but is administratively attached to the Department of Audits and Accounts. Further, the earlier responses were not requiring payment to be made to the IERB for records, the response in the previous email was clearly requiring the requester (me) to pay a private third-party for the records. That is not how the Georgia sunshine laws work.

With all of that said, I would like to make the following requests for records:

(1)    For the third time, I would like to request an electronic copy of the transcript of the February 28th IERB meeting.

(2)    In light of the revelation that I am not the only party that has requested this transcript and been denied, I would request all records pertaining to requests and denials of copies of the transcript of the February 28th IERB meeting. I would like these records provided in electronic format, if possible. (I have concerns that other parties were required by the IERB to pay costs to a private third-party for records which should have been open records under the sunshine laws or, at the very least, not provided specific legal authority as to why their records requests were denied.)

(3)    I would like to request an electronic copy of the proposed rules discussed at the February 28th meeting.

(4)    I would like to request electronic copies of all records discussing or attempting to publish the proposed rules discussed at the February 28thmeeting.

(5)    I would like to request records of any and all formal training classes and codes of conduct the current members of the IERB have received as part of their duties on the IERB. I would also like these records provided in electronic format, if possible.

I hope this email for requests of records is clear but if it is not, please let me know if there are any questions as to the records I am requesting and I will clarify what I am seeking. I believe that all of these records should be in an electronic form and there should not be a cost associated with copying the records but I understand that there may be a cost. If there is a cost, please let me know of the cost, remembering the provisions of O.C.G.A. 50-18-71(c). I would hope that the IERB  consider the delays in providing the record of the transcript I have already endured when responding to these new and renewed requests.

Again, if the IERB has specific legal authority for the denial of my two earlier requests (and for the potential denial of any of these requests), please let me know of such legal authority in writing. I am always willing to learn of new exceptions to the open records act.

I apologize for the length of this email but unfortunately, that is sometimes what results when the letter of the open records laws is not being followed, particularly the requirement to cite specific legal authority when denying a records request. I would request that any responses to this email or included requests be in writing.

Thank you,

Rusi Patel

Senior Associate General Counsel

Georgia Municipal Association

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About Dan Whisenhunt

Dan Whisenhunt is editor and publisher of Decaturish.com. https://www.linkedin.com/in/danwhisenhunt

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