Sunday,

December 10, 2017 at 9:58:09 PM Eastern Standard Time

Subject: Execu&ve Session---Dec. 11th Elec&on Board Mee&ng and Public records request
Date: Sunday, December 10, 2017 at 9:43:32 PM Eastern Standard Time
From: Marilyn Marks
To: richard.barron@fultoncountyga.gov, felisa.cordy@fultoncountyga.gov, erica@ericapines.com,
mccooney@mindspring.com, verneManuriddin@live.com, dburge@sgrlaw.com,
wingate01md@gmail.com, aaronvjohnson@yahoo.com
ADachments: AGENDA_DECEMBER_11_-Special.pdf

Fulton County Board of Elections,

Please honor the letter and spirit of Georgias Sunshine Law regarding your public meeting
tomorrow and executive session restrictions.

I noticed on the attached posted agenda that an Executive Session is planned for the meeting
tomorrow (Monday.) The stated purpose of the session is Discussion of Legal Issues
pertaining to recount, recanvassing and election challenges.

It is my understanding that executive sessions for legal issues are not permitted unless there
is threatened legal action where the threat is realistic and tangible. Please see the legal
references below. If indeed there is realistic threatened legal action concerning current
elections and the recount, please promptly provide a copy of all writings that support any
conclusion that there is such threatened litigation, and address those specifics in the
motion to go into Executive Session.

It is important that the recount/recanvass procedures are fully transparent. If there are issues
in controversy related to the December 5 election, a closed door meeting is inappropriate
unless there is truly seriously threatened litigation of the type contemplated by the statute.

Please consider the rights of citizens to oversee its elections, and avoid an Executive Session
unless it clearly meets the exceptions under the Sunshine Law and is considered essential to
protect Fulton Countys interests.

Thank you for your consideration.

Marilyn Marks
Coalition for Good Governance
704 552 1618

50-14-2
This chapter shall not be construed so as to repeal in any way:
(1) The attorney-client privilege recognized by state law to the extent that
a meeting otherwise required to be open to the public under this chapter may
be closed in order to consult and meet with legal counsel pertaining to pending
or potential litigation, settlement, claims, administrative proceedings, or
other judicial actions brought or to be brought by or against the agency or any
officer or employee or in which the agency or any officer or employee may be
directly involved; provided, however, the meeting may not be closed for advice
or consultation on whether to close a meeting; and
(2) Those tax matters which are otherwise made confidential by state law.

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From Open Government Guide, Reporters Committee for Freedom of the Press, 2011:

A meeting otherwise required to be open to the public may be closed

in order to consult and meet with legal counsel about pending or potential
litigation. O.C.G.A. 50-14-2. See Local Div. 732, Amalgamated
Transit Union v. Marta, 251 Ga. 15, 303 S.E.2d 1 (1983) (public may
be excluded from meetings to protect attorney-client privilege), cert.
granted and vacated on other grounds, 465 U.S. 1016 (1984). However,
the threat of legal action must be realistic and tangible, and more
than a mere fear or suspicion of being sued. Claxton Enter. v. Evans
Cty. Board of Commrs., 249 Ga. App. 870, 874, 566 S.E.2d 399 (2002).

From the Claxton case referenced above:

Construing O.C.G.A. 50-14-2 (1) narrowly, we hold that a

meeting may not be closed to discuss potential litigation
under the attorney-client exception unless the
governmental entity can show a realistic and tangible
threat of legal action against it or its officer or employee,
a threat that goes beyond a mere fear or suspicion
of being sued. A realistic and tangible threat of litigation
is one that can be characterized with reference to
objective factors which may include, but which are not
limited to (1) a formal demand letter or some comparable
writing that presents the party's claim and manifests
a solemn intent to sue, see Board of Educ. v. Freedom
of Information Comm ., 585 A.2d 82, 86-87 (Conn.
1991); (2) previous or pre-existing litigation between
the parties or proof of ongoing litigation concerning
similar claims, see Sutter Sensible Planning, Inc. v. Board
of Supervisors , 176 Cal.Rptr. 342, 349 (App. Ct. 1981);
or (3) proof that a party has both retained counsel
with respect to the claim at issue and has expressed
an intent to sue, see Star Tribune v. Board of Educ ., 507
N.W.2d 869, 872 (Minn. 1993). This list is not intended
to be exhaustive but merely illustrative of circumstances
that a trial court may consider, in the exercise
of its discretion, that take the threat of litigation out
of the realm of "remote and speculative" and into the
realm of "realistic and tangible."

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