The publisher of an online news site who, despite no formal legal training, won a Georgia Supreme Court decision forcing the Atlanta City Council to stop holding unrecorded votes has dismissed his claims, declaring total victory and pocketing a total of $1,000 to cover his expenses.

Matthew Cardinale, the 31-year-old webmaster and main reporter for the Atlanta Progressive News website, was beaming last week as he entered the Fulton County Courthouse to file his notice of dismissal.

In 2010, Cardinale filed suit against the city arguing that members of the City Council violated the state Open Meetings Act by failing to record the names and votes of members during a retreat in 2010.

Arguing his own case, Cardinale failed to persuade a Fulton County judge and the Georgia Court of Appeals that the law mandated that such votes be recorded, but in February 2012 a narrowly divided Georgia Supreme Court agreed with Cardinale, earning praise from state Attorney General Sam Olens and other open government advocates.

In 2012, Cardinale filed another suit claiming that the City Council routinely violated the law by closing committee briefings to the public. Earlier this year, the council’s seven committee chairs voluntarily agreed to open all briefings to the public.

Read more »

The Eleventh Circuit Court of Appeals has upheld a lower court ruling that the Metro Atlanta Task Force for the Homeless must pay the city of Atlanta for water service at its homeless shelter at the corner of Peachtree and Pine streets.

The unpublished order issued Tuesday affirms a 2011 summary judgment order issued by U.S. District Judge Thomas Thrash that the shelter’s claims that its constitutional rights had been violated by the city were unfounded, and that the Task Force must make good on unpaid bills totaling $147,288 at the time.

The dispute began in 2008, when the city told the Task Force that it was cutting off the water to the shelter, which houses hundreds of homeless men on any given night. The Task Force sued, alleging breach of contract and other claims charging the city with violating its due process and equal protection guarantees.

In 2011 Thrash ruled against the shelter, concluding among other things that the city was protected from suit by sovereign immunity and that the Task Force had not proved that it was treated differently from other, similar entities.

The appellate panel, comprised of Judges Rosemary Barkett, Adalberto Jordan and William T. Hodges of Florida’s Middle District, sitting by designation, concurred. The three-page ruling concluded that the Task Force had not properly pleaded its First Amendment claim, and had not demonstrated that it was denied equal protection or that it had a constitutionally guaranteed property right to grants controlled by the city.

Read more »

The city of Atlanta will ask an Atlanta Municipal Court judge to throw out subpoenas served on Mayor Kasim Reed, Atlanta Police Chief George Turner and four other city and police officials by lawyers for Occupy Atlanta protesters slated to stand trial next week.

Lawyers for more than 80 protesters who were arrested last year after Reed rescinded an executive order allowing them to remain in Woodruff Park the park after 11 p.m. want to question the officials regarding the basis for the evictions, according to a release sent out Friday by the office of Davis Boazman partner Mawuli Davis.

A staffer in the law office said the others named in the subpoena were Reed’s director of communications, Sonji Jacobs; Deputy Police Chief Renee Propes; and APD spokespersons Carlos Campos and Alice Johnson.

Deputy City Attorney Eric Richardson said he and City Solicitor Raines Carter have asked Municipal Court Senior Judge Crystal Gaines to quash the subpoenas.

Richardson noted that Gaines has already tossed out a subpoena the Occupy lawyers filed earlier seeking documents from Reed relating to the removal of the protesters by police on the night of Oct. 25, 2011.

“Before, they were chiefly interested in documents from the Atlanta Police Department, and we provided a good bit in response,” said Richardson. “But one of the things they wanted were documents that reflected on the mayors thinking in issuing and revoking the executive order.  We maintained early on that that wasn’t relevant to these proceedings, so we moved
to quash the subpoena for those documents.”

On Wednesday, Gaines issued an order granting the motion to quash, and “almost immediately we got a subpoena for [Reed’s] testimony,” Richardson said.

In the wake of the October arrests and a smaller number of arrests the following month, more than two dozen volunteer lawyers signed on to represent the protesters, and more than  a dozen have spent the last year filing motions and making appearances prior to next week’s trial, according to Davis’ release.

The protesters are charged with misdemeanor code violations carrying a maximum sentence of six months in jail and a $1,000 fine.

In response to sexually-charged allegations about Atlanta Mayor Kasim Reed and members of his staff on the “Lipstick Alley” website, McKenna Long & Aldridge partner Randy Evans fired off a letter on Reed’s behalf demanding that the site immediately remove “any and all statements about Mayor Reed that are false, defamatory, and cause significant harm to his reputation and good name.”

Failure to remove the offending statements, wrote Evans in the Oct. 8 missive, “will leave us no choice but to recommend that Mayor Reed pursue all legal causes of action that he might have, which include litigation in which Mayor Reed would pursue damages, attorney’s fees and costs.”

The letter seems to have been successful – temporarily. According to an Oct. 17 response from Paul Levy of the Washington, D.C-based Public Citizen Litigation Group, Lipstick Alley’s “weak-kneed” web hosting service pulled the site entirely, then restored it “on condition that Lipstick Alley reach a compromise with your client. Instead of consenting to those conditions, Lipstick Alley has found a new hosting service that can be counted on to stand up for its customers’ legal rights.”

“Your demands reflect a woeful ignorance of the facts and the law,” wrote Levy. “Lipstick Alley is a forum that allows members of the public to express their views about public figures such as elected officials, professional athletes, and popular entertainers and writers.”

“Lipstick Alley does not know whether its members are telling the truth about Kasim Reed, any more than it knows whether you are telling the truth when you deny the truth of those statements,” Levy continued. “For all you know, the anonymous users of the web site may have personal knowledge of facts they discuss, but I am confident that you yourself have no personal knowledge about whether Reed of any of the other public officials have engaged in the sexual activities mentioned in your letter. For all of these reasons, Lipstick Alley is in no more position to ‘retract’ the statements that it did not make than it would be to confirm them.”

Should Reed follow through on his threat, wrote Levy, Lipstick Alley “will defend itself vigorously and, indeed, it reserves the right to seek an award of attorney fees under the relevant anti-SLAPP statute or bases on the bringing of frivolous litigation.”

Lipstick Alley has, in the past, removed some content in response to “reasonable requests from representatives of criticized individuals who recognized that Lipstick Alley is not legally liable but provided sensible arguments about why particular messages ought to be removed,” wrote Levy. “But Lipstick Alley does not negotiate with bullies. You may advise your client that he can expect the messages about which you previously complained to remain on the site in perpetuity.”

Read more »

Atlanta chef Paul Luna has re-heated his challenge to the city’s private parking contractor, PARKatlanta, which took over Atlanta’s parking operations and enforcement in 2010 in return for up to $5.5 million of whatever it realizes in parking fees every year.

Luna, currently the proprietor of Lunacy Black Market on Mitchell Street and the founding force behind tapas spots Eclipse de Luna and Loca Luna, first sued the city last August. His complaint alleged that he had been ticketed twice for parking on Mitchell by PARKatlanta enforcement officers who had not been appointed by the chief of police, as required by Atlanta’s parking ordinance. (http://www.atlawblog.com/2011/08/famed-local-chef-turning-up-the-heat-on-parkatlanta/)

A Fulton County Superior Court judge threw out the case, agreeing with the city that the Municipal Court judge who presided over Luna’s hearing had not been properly served with the suit and granting Atlanta’s motion to dismiss.

On Tuesday Luna’s attorney, Cory Lynch, served up a fresh complaint similar to the first and based upon the same two tickets, but this one includes certificates of service to Atlanta Solicitor Raines Carter, Municipal Court Chief Judge Crystal Gaines and Judge Gary Jackson, who presided over Luna’s hearing last year.

The suit asserts that the city’s arrangement with PARKatlanta is a violation of the city charter that was undertaken without the consent of the Georgia Legislature, and says that Luna believes the city “improperly delegated part of its police power by entering into a contract that allows a private entity to enforce parts of the city of Atlanta Code of Ordinances. He also believes the City of Atlanta in conjunction with ParkAtlanta has used the parking ordinance as a revenue measure where the scheme of the ordinance is such that the receipts will be continuous and will exceed the cost of installation, maintenance and regulation.”

“We had a misunderstanding the first time, so that suit was dismissed and we re-filed,” said Lynch. “It should go forward this time unless something crazy happens.”

Luna has been a vocal opponent of the PARKatlanta arrangement, which in addition to strict enforcement has resulted in more than 1,000 new meters being placed around the city and extended the hours drivers must pay to park. On his “Paul Luna for Mayor” website, Luna devotes a lengthy section to the issue entitled “Atlanta’s Parking Contract Inhibits Growth, Deters Business to the City.”

Even so, said Lynch, “we’re not necessarily against PARKatlanta; we just want the city of Atlanta to obey the law.”

Deputy City Attorney Eric Richardson said in an email,  “The City has not been served with the lawsuit, so it would be premature for us to comment at this point.”

A hearing officer for the city of Atlanta has turned down an appeal from SSP America Inc., whose bids to run several concessions at Hartsfield-Jackson International Airport were denied last year by the city procurement officer in favor of other vendors.

In an order issued Tuesday, independent Procurement Appeals Hearing Officer George F. Maynard upheld that denial. He ruled that SSP had failed to prove its assertion that the bid process was flawed due to arbitrary scoring by the officials evaluating the bids, conflicts of interest and interference by Atlanta Mayor Kasim Reed.

Maynard held three days of hearings in March and this month, during which attorneys for SSP solicited testimony from 11 witnesses and presented numerous documents related to the bid process.

“[SSP] acknowledges its case relies almost entirely on circumstantial evidence gleaned from its exhaustive review of hundreds of thousands of pages of documents,” wrote Maynard in his 23 page ruling.

“Despite [SSP]’s contention that it is the leading Airport concessions company in the nation, it seems curiously focused on trying to reduce the municipal procurement process to a purely objective and mathematical process.”

Read more »

UPDATE: DeFoor told the Daily Report on Friday that she has also retained legal counsel, although she declined to say whether she was considering litigation regarding her own termination. Her attorneys did not respond to requests for comment.

A whistleblower suit filed Wednesday in Fulton County Superior Court says Atlanta Director of Treasury Services Edward Tuohy was terminated last year after refusing to follow superiors’ repeated orders to violate city guidelines and transfer funds into and out of accounts, without proper documentation, and invoice accounts that should not have been billed.

Tuohy was fired Oct. 12, according to the suit, after he refused to transfer money from a city fund without telling that fund’s finance chief, despite being ordered to do so by his boss, Chief Finance Officer Joya DeFoor. (Although the suit does not mention it, DeFoor was herself terminated without explanation five days after Tuohy was cashiered. There was no immediate response to a telephone message left at a number listed as belonging to DeFoor.)

According to the complaint, Tuohy was recruited for the city job in March 2011 and within a month or two was repeatedly instructed to “circumvent City financial guidelines and to book invoices without proper approval procedures and to book the invoices to accounts which should not have been charged.”

In addition to demanding that he engage in financial misconduct, the suit says, DeFoor and her deputy finance officer, Stefan Jaskulak, ignored advice that could have saved the city hefty sums. In one case, it says, he pointed out that the city maintained cash balances exceeding $1 billion in accounts that earned “virtually no interest” and complained about the “millions of dollars in lost income.”

In response, according to the complaint, Jaskulak told Tuohy he “shouldn’t worry because the City Council has its head so far up its ass that they wouldn’t know what the actual cash balances were.”

Read more »

A Fulton County judge has thrown out a challenge to a series of increases in the retirement benefits of Atlanta’s firefighters, police and general employees that was filed in 2010 by the Fulton County Taxpayers Foundation.

The foundation and its president, John Sherman, along with 10 co-plaintiffs, had sought class status in their efforts to reverse eight city ordinances between 2001 and 2005 that increased pension benefits. They argued that their property taxes had been raised to fund the increases.

Shortly after it was filed, attorney Mary Carole Cooney was retained by police, firefighter and employee organizations and pension funds to fight the suit as a third-party intervenor.

In her March 13 order, which Cooney said she drafted, Fulton County Superior Court Judge Kimberly M. Esmond Adams denied the request for class certification and ruled that the plaintiffs had provided no evidence that their property taxes had been raised to fund the increases.

Further, said the order, legislation signed into law last year by Mayor Kasim Reed revising the city’s pension laws overcame the bulk of the plaintiffs’ claims challenging the earlier laws, rendering them moot.

Cooney said she didn’t think the ruling left any grounds for appeal. The plaintiffs plainly could not satisfy the legal requirements for class certification, she said, and “because of the city’s comprehensive revision of its pension system, those challenges are now academic.”

Deputy City Attorney Eric Richardson hailed the “thorough and well-reasoned” order.

“In June of 2010, shortly after the lawsuit was filed, the city filed a motion for summary judgment seeking dismissal of the lawsuit based on plaintiffs’ lack of standing,” he said. “Judge Adams’ decision validates the city’s arguments from very early in this case that the lawsuit lacked legal merit.”

The foundation’s attorneys, Robert D. Feagin and John F. Woodham, did not respond to requests for comment.

The case is Fulton County Taxpayers Association v. Atlanta, No. 2010CV182203.

A Fulton County judge has turned down efforts by frustrated would-be concessionaires at Hartsfield-Jackson International Airport to halt the city from signing contracts with the winning bidders.

Fulton County Superior Court Chief Judge Cynthia D. Wright ruled Monday morning that the losing bidders must exhaust their appeals protests to a city hearing officer before seeking relief in court.

Four losing bidders — SSP America Inc., Midfield Concession Enterprises Inc., Take-Off Concessions LLC and Atlanta Airport Restaurants LLC – asked Wright last week to order Atlanta Mayor Kasim Reed not to finalize the contracts with their rivals. They argued that their efforts to have the contracts voided and re-awarded would be irreversibly damaged if the winners began operating at the airport, where a new international terminal is slated to open in May.

The city has already turned down the challengers’ protests, and a specially-appointed hearing officer is due to hear their appeals next month. Lawyers for the losing companies said that because they are not granted the authority to subpoena witnesses and documents for that hearing, they will not be able to gather all the evidence they need for Superior Court challenge.

Wright’s order conceded the point, but she noted that the city has provided a wealth of documents related to the bids. She also urged the city, “in the interest of transparency and public confidence in the process,” to grant limited subpoena power.

While the judge’s order favored the city, she also took issue with a bidding process that has been marked by inconsistencies and false starts, including last year’s wholesale re-bidding of contracts related to more than 150 food and beverage and retail outlets at the airport.

“Undoubtedly,” Wright wrote, “a City cannot spend months developing a record prior to rendering a decision, or the business of the City would grind to a halt.”

Even so, she continued, “providing frustrated bidders with independent subpoena power, controlled by the procurement appeals officer, would certainly be a step forward in the furtherance or procedural due process and the promotion of public confidence in the decisions made by the city.”

“One could only hope that in this way, perhaps, fewer airport cases would land before the Superior Court,” she concluded. “But then, as the saying goes, you can’t get anywhere without going through the Atlanta airport, and apparently, the Atlanta Airport can’t get anywhere without going through the Superior Court.”

Testifying in a hearing in which a failed airport concession vendor is seeking more information about the bidding procedures for contract awards worth more than $3 billion, Deputy Atlanta City Attorney Peter J. Andrews estimated that the city will spend at least $800,000 responding to Open Record Act requests filed by disappointed bidders.

During testimony Tuesday afternoon in Fulton County Superior Court, attorneys for Atlanta said that in the wake of last month’s contentious round of contract awards, the city began researching, vetting and printing hundreds of thousands of documents and put together a crew of more than 60 people, including 45 city and private lawyers , to compile and vet the materials.

Andrews said the city had been billed $300,000 by Global Legal Discovery to print and preserve in e-format hundreds of thousands of documents, and that he expected the city to be billed “in excess of $500,000 from private attorneys” hired to handle the document requests so far.

“I don’t want to be around when we get that one,” said Andrews.

The hearing was called by one of the unsuccessful bidders, international airport concessionaire SSP America Inc., to address the company’s assertions that the city had failed to completely respond to a judge’s order earlier this month to provide Open Records Act materials it needs to prepare an appeal of the denial of its bid.

SSP’s attorney, Ashe Rafuse & Hill partner Kenneth B. Hodges III, asked Judge T. Jackson Bedford Jr. to hold the city in contempt and rule that it was in violation of the ORA. But Greenberg Traurig partner Mark G.  Trigg – an outside attorney the city hired Monday– said that the list of documents and materials Hodges was seeking had largely been provided, did not exist, or were protected by attorney client privilege.

Bedford called a halt in the proceedings late Tuesday afternoon when a court staffer had a private emergency.