GEORGIA’S NEW SUNSHINE LAWS:
WHAT TRUSTEES AT HOSPITALS
AFFILIATED WITH AN AUTHORITY
NEED TO KNOW
GHA TRUSTEE CONFERENCE
January 2013
Temple Sellers
General Counsel & VP, Legal Services
Georgia Hospital Association
Rusty Ross
Partner
Morris, Manning & Martin, LLP
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Agenda
• HB 397: Changes to Georgia’s Sunshine Laws
▫ Open Meetings
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Procedural Requirements
Teleconferences
Committees Covered
Exceptions/Exclusions
Executive Sessions
Enforcement/Sanctions
▫ Open Records
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Public Policy Statement
Electronic Records
Three-Day Rule
Costs
Exemptions
Enforcement/Sanctions
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Open Meetings: Entities Covered
• HB 397 makes no significant changes to the type of
entities covered by the Open Meetings Act.
▫ Hospitals owned/operated by authorities have always
been covered.
▫ In its well-publicized “Promina decision” in 1995, the
Georgia Court of Appeals expanded the law to cover
several private corporations which had been created to
lease and operate authority-owned hospitals as well as
their parent entity, i.e., restructured authorities.
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Open Meetings:
Procedural Requirements
• Open meetings still require (1) public notice, (2) public
accessibility, (3) pre-meeting agenda, and (4) minutes.
▫ Minutes were previously required to include, at a
minimum, the names of members present at the
meeting, a description of every motion or proposal
made, and a record of all votes. Now the minutes
must also include the identity of the persons
making and seconding any motion or other
proposal.
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Open Meetings: Teleconferences
• Teleconference Meetings
▫ With respect to conducting entire meetings by
teleconference, HB 397 retains the previous language in
the Open Meetings Act authorizing “an agency with
statewide jurisdiction” to conduct such meetings.
 Authorizes other agencies to conduct meetings by teleconference “under
circumstances necessitated by emergency conditions involving public
safety or the preservation of property or public services” as long as the
notice requirements of the Act are followed and the public is given access
to also participate via teleconference.
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Open Meetings: Teleconferences
• Teleconference Participation by Individuals
▫ HB 397 limitations the ability of individual board or
committee members to participate in open meetings by
teleconference where a quorum is otherwise present in
person.
 Only allowable if necessary due to health reasons or absence from the
jurisdiction
 Requires emergency conditions or doctors note if member participates
via teleconference more than twice in a year
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Open Meetings: Committees
• Covered Meetings
▫ HB 397 retains previous requirements for board meetings covered,
i.e., a gathering of a quorum of the members of the governing body
at which any official business, policy, or public matter of the
hospital is formulated, presented, discussed or voted upon.
▫ HB 397 expands the committees covered by the Act
 Still applies to committees comprised of board members
 Now also applies to committees created by the board, even
when no board member serves on such committees.
GHA successfully advocated for an exclusion for meetings of the governing
body or its committees when performing a medical or peer review function as
recognized by state or federal law.
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Open Meetings: Exclusions
• Meetings Excluded from the Act include:
▫ Certain gatherings or meetings at which no official
action is taken and/or discussed, including:
 Gatherings for the purpose of inspecting physical facilities or
property
 Meeting with state or federal legislative or executive officials
 Gatherings to participate in training seminars
 Gatherings at social ceremonial, civic, or religious events
 Gatherings to travel to a meeting or gathering
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Open Meetings Act: Exclusions
• Meetings Excluded from the Act include:
▫ Board/Committee Meetings when Performing
Peer/Medical Review
▫ E-mail Communications
 HB 397 expressly excludes e-mail communications among
members of an agency from the Open Meetings Act.
 E-mail communications are public records
▫ A board member’s e-mails and texts are subject to the Open Records Act to
the extent they are related to the business of the public hospital even when
the board member uses his personal computer or handheld device to send or
receive such messages.
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Open Meetings Act:
Executive Session
• Executive session is now defined as “a portion of a
meeting lawfully closed to the public.”
• Topics/actions appropriate for an executive session
include:
▫ Discussion of commercially valuable plans, proposals
or strategies
▫ Discussion with legal counsel, but only with
respect to pending or potential litigation,
settlement, claims, administrative
proceedings, or other judicial actions
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Open Meetings Act:
Executive Session
• Topics/actions appropriate for an executive session
(cont.)
▫ Vote to authorize the settlement of any matter that is
properly discussed with legal counsel
▫ Discussion or vote to
 Authorize negotiations to purchase, dispose of, or lease real property
 Authorize the ordering of an appraisal related to the acquisition or
disposal of real estate
 Enter into a contract to purchase, dispose of, or lease property subject
to approval is a subsequent public vote
 Enter into an option to purchase, dispose of, or lease real estate
subject to approval in subsequent public vote
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Open Meetings Act:
Executive Session
• Topics/actions appropriate for an executive session
(cont.)
▫ Discussion regarding certain personnel matters
including when interviewing applicants for the CEO
position
 However, both discussions and votes on the filling of vacancies
on the board are required to be open to the public.
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Open Meetings Act:
Executive Session
• Procedural Requirements
▫ Convene open meeting first and make motion
to convene in executive session
▫ Meeting minutes of portion that occurs before
executive session should include specific reasons for
such closure, the names of members present, and the
names of members voting for closure. Minutes should
be kept with the regular minutes of the board or
committee and open for public inspection
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Open Meetings Act:
Executive Session
• Procedural Requirements
▫ New requirement to prepare minutes of
executive session that specify each issue
discussed. When attorney-client discussion occurs
its subject matter must be recorded but not the
substance of discussion. These minutes are not
required to be made available for public inspection but
must be retained in case a dispute arises regarding the
appropriateness of the closed meeting.
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Open Meetings Act:
Executive Session
• Procedural Requirements
▫ Affidavit still required by either the person
presiding over the meetings, or, if the hospital’s policy
so provides, each member of the governing body
attending such meeting stating that the closed portion
was devoted to a topic in the Act’s exceptions and
identifying which exception applies.
 Remember these requirements now also apply to committees
created by the board.
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Open Meetings Act:
Executive Session
• Discussions of Unauthorized Topics
▫ In the event one or more initiates a discussion that is
not authorized to be discussed in closed session, the
presiding officer must immediately rule the discussion
out of order and all present must cease the questioned
conversation. If one or more persons continue the
discussion after being rules out of order, the presiding
officer must immediately adjourn the executive
session.
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Open Meetings Act: Enforcement
• Individual Penalties/Fines
▫ New provision authorizes the court to impose a civil
penalty against a person who negligently violates the
Act in an amount not to exceed $1,000 for the first
violation and a civil penalty or criminal fine not to
exceed $2500 per violation for each individual
violation commits within a 12 month period from
the date that the first penalty or fine was imposed.
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Open Records Act:
Entities Covered
• HB 397 makes no changes to the entities subject to the
Open Records Act, i.e., same entities covered by Open
Meetings Act.
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Open Records Act:
Declaration of Public Policy
• HB 397 provides that the Act “shall be broadly construed
to allow the inspection of governmental records” and
exceptions “shall be interpreted narrowly” to exclude
only those portions of records addressed by such
exceptions.
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Open Records Act:
Electronic Records
• A fundamental principal reflected in the Act is that “an
agency’s use of electronic record-keeping systems must
not erode the public’s right of access to records.
• E-Mail, Text Messages and Other Electronic Messages
are subject to disclosure if they otherwise meet the
definition of a public record, i.e., they were prepared or
received by the public hospital or by a private person or
entity in the service or function for or on behalf of the
hospital.
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Open Records Act:
Electronic Records
• A board member’s e-mails and texts are subject to the
Open Records Act to the extent they are related to the
business of the hospital even when the board member
uses his personal computer or handheld device to send
or receive such messages.
• Hospitals should consider establishing policies regarding
the use of email communication among board members
and between the hospital and board members to the
extent related to official business.
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Open Records Act:
Three Day Rule
• HB 397 retains the requirement that agencies must
respond to a request for public records within three
business days of receipt of a request.
▫ Where responsive records cannot be located within
three business days, HB 397 now provides additional
time to identify any exemptions that may apply to such
records.
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Open Records Act: Costs
• HB 397 reduces the allowable copying costs for letter or
legal size documents from $.25 to $.10 per page.
• However, a charge is now permitted for reasonable
redaction costs in addition to search and retrieval costs.
• Only when the estimated cost of production will be
greater than $500.00 may an agency insist on
prepayment.
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Open Records Act: Exceptions
• Attorney-client privilege/Confidential attorney work
product
▫ HB 397 requires an agency to disclose factual findings
of an attorney conducting an investigation on its
behalf if the investigation does not pertain to pending
or potential litigation, settlements, claims or
administrative proceedings or other judicial actions.
 GHA successfully advocated for special exceptions
that protect factual findings of an attorney conducting
an investigation on behalf of a hospital authority to
ensure compliance with federal or state law,
regulations or reimbursement policies.
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Open Records Act: Enforcement
• HB 397 increases civil penalties for knowingly and
willfully refusing to comply with required timeframes
from $100 to $1000 for the first violation and adds new
language that creates a misdemeanor for "intentionally
making it difficult to obtain or review" records.
• Additional violations within 12 months could subject a
violator to “a civil penalty or criminal fine not to exceed
$2,500.00 per violation.” Destroying records could lead
to criminal prosecution under a felony statute that
carries a penalty of imprisonment from 2-10 years.
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Questions?
• If you have any questions, please feel free to contact:
Temple Sellers at 770-249-4527 or tsellers@gha.org;
or
Rusty Ross at 912-232-7182 or rross@mmmlaw.com.