DDA Manual – Table of Contents

Section 1. Introduction

Section 2. Downtown Development Authorities Overview

Section 3. The Steps in Creating a Downtown Development Authority

Section 4. DCA Information

Section 5. Summary of Financing/Funding Tools for Downtown Revitalization

Section 6. Ethics, Conflicts, Meetings and Records for Downtowns

Section 7. Historic Preservation Division

Section 8. Georgia Local Government Public Works Construction Law

1

1/5/2011 1

INTRODUCTION

In 1986, Congress took final action towards a substantial remodeling of our tax system.

One of the biggest losses was tax-exempt financing for downtown development projects. As a

result of the 1986 Tax Reform Act, it is no longer possible for Downtown Development (DDA)

Authorities to make tax-exempt loans available to businesses in our downtowns.

What are downtown authorities to do? That became one of the most frequently asked

questions by Georgia’s community leaders.

In an effort to provide answers, the Georgia Department of Community Affairs (DCA)

organized a Downtown Development Workshop and produced a manual in 1987 in conjunction

with a meeting of the Georgia Municipal Association (GMA). Both the workshop and manual

were designed to remind us that tax-exempt financing was an important tool for downtown

development.

In 1991, the Georgia Municipal Association Community and Human Development Policy

Committee established a Downtown Development Task Force in response to the continued

serious and growing concerns about the declining condition of the state’s downtown areas. The

Downtown Task force was able to identify two major concerns:

1. That existing laws impeded the efforts of city officials and downtown professionals to address some of the problems and

2. There was not a “one stop” shop to which these officials and professionals could turn for assistance and information about resources. As a result the Georgia Municipal Association created the Office of Downtown

Development Services (Office) in 1995 which was staffed by a downtown manager and program

associate. The function of the Office was to serve as:

1. A clearing house of information on downtown development

2. To monitor and develop policy regarding Georgia’s downtowns.

3. To provide educational opportunities including training for elected and appointed

officials.

4. To provide downtown technical assistance to the Georgia Municipal Association’s

member cities.

2

1/5/2011 2

Georgia Municipal Association, recognizing the importance of downtown

redevelopment, encourages the formation of downtown development authorities as a tool

to carry out revitalization plans within a community. In January, 1993, the University of

Georgia’s Carl Vinson Institute of Georgia and GMA held the first state-required DDA

training program at the Mayors’ Day Conference in Atlanta. In response to GMA

member requests for downtown revitalization assistance, GMA established the Georgia

Cities Foundation, Inc. in March of 1999, to assist cities in their efforts to revitalize and

enhance their downtown areas by serving as a partner and facilitator in the funding of

capital projects, technical assistance and training. In 2004, the Georgia Cities Foundation

and the University of Georgia’s Fanning Institute developed a partnership to jointly

deliver training for Downtown Development Authorities (DDA). This partnership has

enhanced and expanded the training and technical assistance that both GMA and the

University has offered to Georgia’s DDAs for many years. Four regional Downtown

Development Authority training sessions are held each year in various locations around

the state.

The winter training session is held in January in conjunction with Georgia

Municipal Association’s Mayors’ Day in Atlanta;

The spring session is held in a downtown located, alternately each year, in

the northern or southern area of the state;

The summer session is held in June in conjunction with Georgia Municipal

Association’s Annual Convention in Savannah; and

The fall session is held in conjunction with the Annual Conference of the

Georgia Downtown Association.

This reference manual is designed to provide a basic guide to downtown development

issues, resources, and programmatic direction in a systematic format. The information contained

herein includes a collection of existing information that is organized into a user friendly and

flexible format which will allow addition and deletion of sections as newer or better information

becomes available.

Section 2 provides an overview of why downtowns are important and an overview of the

DDA law.

3

1/5/2011 3

Section 3 provides the steps involved in creating a downtown development authority.

This section also offers a sample resolution and sample by-laws.

Section 4 takes a look at the Main Street Program 4-point approach and philosophy

adopted by the National Main Street Center in downtown revitalization. It also includes the

requirements and discusses the application process involved in becoming a designated Main

Street city. Section 4 also discusses the Better Home Town Program, it includes historical

information about the Better Home Program, application procedure and discusses the Better

Hometown six-stage assistance process.

Section 5 provides a summary of various financing tools available for downtown

revitalization e.g. grants, facade loans, Business Improvement District (BID), revolving loan

pools.

Section 6 provides valuable information on ethics, conflicts, meetings and records for

downtowns.

Section 7 takes a look at the services offered by the Historic Preservation

Division/Department of Natural Resources and Georgia Trust, respectively. These sections

focus on historic preservation as an effective economic development tool in downtown

revitalization efforts. Section 7 provides information regarding state and federal tax incentives,

Georgia Heritage 2000 Grant program and the importance of Georgia/National Register

designation for eligible historic properties.

Section 8 offers information on the Georgia Local Government Public Works

Construction Law, which establishes uniform requirements for local government public works

construction projects.

In summary, this manual is intended to guide the reader through the creation and

operation of a downtown development authority, use of the Main Street 4-point approach in

downtown development & revitalization, identification of financing and funding sources.

We hope that this manual will be helpful in your downtown redevelopment efforts. Your

comments and suggestions are welcomed!

4

Downtown Development Authorities (DDA) Overview Why Downtown is Important?

Downtowns symbolize among many things, the economic health of the community, the

local quality of life, pride in place, public-private partnerships and the community’s history.

Over the years downtowns, in addition to being the central business district, have been viewed as

the focal point of the city and the site of local government offices, post offices, Chambers of

Commerce and other public functions. Downtowns have also served as civic forums where

speeches and parades were held as well as tourist attractions because of the unique businesses

and buildings.

Businesses that locate in downtowns generate community jobs and contribute to a

significant part of the tax base. Our cities’ downtowns continue to face stiff competition from

shopping malls and discount outlets. The successful revitalization of our downtowns depends

largely on the ability to identify resources, build support from the community, business and

public officials and maintain a clear focus on the needs of the downtown.

Even though the DDA represents those most directly affected by downtown changes e.g.

merchants, property owners) it also insures that the general community welfare is always

considered.

5

What is a Downtown Development Authority (DDA)?

During the last decade, the downtown development authority (DDA), Main Street

Program and Better Hometown Program have become the most common types of downtown

improvement organizations in Georgia.

There are three primary reasons for this growth. First, the cities, that had accomplished

the most in their downtowns had been those with DDA’s such as Athens, LaGrange, Macon,

Marietta, Perry and Waycross which led the way with development authorities created by local

constitutional amendments approved by the Georgia General Assembly. They were later

followed by other cities after the passage in 1981 of general enabling legislation for DDAs.

Secondly, through the DDA, a city can offer tax-exempt financing (e.g., industrial

development revenue bonds) for commercial building projects in the downtown area.

Thirdly, the DDA acts as a hybrid agency – neither wholly a public agency nor wholly a

private corporation – enacted by the municipal government. Its purpose is to enable the city to

focus special talents and resources on downtown development and redevelopment projects. For

example, the authority concentrates its efforts on downtown revitalization while city officials and

civic organizations focus their efforts on a much broader range of concerns. The DDA is also

better able to handle the long-term nature of downtown revitalization and can provide centralized

leadership to the community , acting as a focal point through which citizens, business owners,

property owners, public officials, developers, civic groups and others may communicate. And, it

provides a mechanism for the public sector and the private sector to jointly pursue creation of

economic development benefits: creation of new & better jobs, new investment, and an enhanced

quality of life for local citizens.

6

Typical Model for Organizing Downtown Development in Georgia

Management Program:

Downtown Development Authority Purpose: Revitalize and redevelop the central business districts of Georgia’s municipal corporations. Develop and promote for the public good and general welfare: trade, commerce, industry,

and employment opportunities. Promote the general welfare of Georgia by creating a climate favorable to the location of new

industry, trade, and commerce. Develop existing industry, trade, and commerce within Georgia’s municipal corporations.

Paid Professional Position

Organization Committee

Design Committee

Economic Restructuring Committee

Promotions Committee

Governing Body Volunteers

7

Working Towards a Healthy Downtown For the Third Millennium Over time downtown development programs face the ongoing task of creating and maintaining a sustainable downtown. Proactive research and development techniques can yield information vital to developing a diversified downtown that will be most resilient to changes in the global marketplace. Although percentages will vary from city to city, this model represents a balanced portfolio, which can be found in some of Georgia’s most successful downtowns. History does teach us that our current model of a viable downtown may have a limited life expectancy. Downtown development will always be an evolving process. Governmental 1/5 Professional 1/5 Commercial (Retail & Service) 1/5 Residential 1/5 Other (Art, Culture, Recreation, Religion, Tourism) 1/5

A Balanced Downtown Investment Portfolio

Governmental20%

Professional20%

Commercial (Retail & Service)

20%

Residential20%

Other (Art, Culture,

Recreation, Religion, Tourism)

20%

Governmental

Professional

Commercial (Retail &Service)

Residential

Other (Art, Culture,Recreation, Religion,Tourism)

8

Downtown Development Authority (DDA) Law Overview

The DDA is primarily a policy-making and major decision-making entity that plans and

manages the downtown area. It is a corporate body recognized by State law and used by

Georgia cities for the last four decades as an important tool in downtown redevelopment. The

City may provide supportive staff to assist with the day-to-day activities of the DDA. These

services may include administrative support with agendas and meeting minutes or overseeing

projects. The City may also give the DDA extra duties such as board of review to regulate and

enforcement the downtown historic zoning ordinance that is recognized by the federal

government and can be a financial advantage for building rehabilitation. The DDA is eligible

to receive certain grant monies that local businesses or merchants association can not receive.

From an Internal Revenue perspective the DDA is considered to be governmental, therefore a

tax-exempt entity, so donations to the DDA may be tax deductible. For example, a property

owner located within a historic district might receive financial assistance from the DDA for

renovating a storefront plus an income tax deduction by granting a façade easement to the City

or DDA.

The DDA can utilize a variety of financing tools outlined in the Official Code of

Georgia. Money created from the implementation of these tools can be used in a number of

ways to bring about revitalization and economic development of the central business district.

The DDA can work with volunteers from the local business association, citizens, the

city and county to bring about the revitalization of the downtown area or depending on a set of

criteria for qualification, a DDA may choose to initiate a Main Street or Better Home Town

Redevelopment Program.

9

Since the passage of the 1981 Downtown Development Authorities Law, cities of all

sizes have created DDAs. Many of these became inactive after changes in federal tax codes in

1986 removed certain tax incentives for downtown improvement loans, but many others have

continued to work to strengthen their downtowns. Often simply having a well-structured and

focused organization with a comprehensive and long-term view of downtown, cities have seen

positive results and have prevented opportunities from being lost.

The Downtown Development Authorities Law of 1981 created “in and for each

municipal corporation in the State a public body corporate and politic to be know as the

Downtown Development Authority of such municipal corporation…” This law authorizes a

DDA in every city in Georgia. It eliminated the need for individual local legislation to

establish such authorities, which had previously been the case. These DDAs must be activated

by city government before they can function. This is done by first designating the downtown

area boundaries with the city; appointing the initial directors of the authority; creating a

resolution which also declares that there is a need for such an Authority; pass the resolution

and file copies of the resolution with the Secretary of State and the Georgia Department of

Community Affairs.

The DDA Law indicates that each authority shall consist of a board of seven directors.

These directors must be taxpayers in the county in which the authority is located. At least four

of the directors must also be owners or operators of downtown businesses. Directors of

authorities created under the DDA law are appointed by the governing body of the

municipality. Directors appointed after January 1, 1992 are required to attend and complete at

least eight hours of training on downtown development and redevelopment programs.

10

Each authority can undertake commercial, business, office, industrial, parking, or

public projects where these will have a benefit for the downtown. (Certain public projects such

as the construction of government buildings and streets are not permissible DDA projects.)

A 1988 amendment added hospitals, skilled nursing homes, and intermediate care

homes where such facilities are operated on a not-for-profit basis.

The following are powers that are specifically provided to the DDA created under the

Downtown Development Authorities Law of 1981:

1. To sue and be sued. 2. To adopt and to change as necessary a corporate seal. 3. To make and execute contracts and other agreements, such as contracts for

construction, lease or sale of projects or agreements to finance projects. 4. To purchase and own property, real or personal and to sell or otherwise

dispose of property, lease or rent property. The authority’s property is tax-exempt.

5. To finance projects by loan, grant, lease or otherwise. 6. To finance projects using revenue bonds or other obligations of authority. 7. To borrow money. 8. To apply for and receive government grants, loans, loan guarantees or

other financial assistance. 9. To receive and use city tax monies. (The City can levy a tax up to three

mills for the support of the authority. See Official Code of Georgia Annotated 48-5-350).

10. To employ an executive director for the downtown revitalization efforts. 11. To prepare plans for the downtown area or to hire others to prepare plans. 12. To exercise any power of public or private corporations under state law,

which does not conflict with the authority’s public purpose. The 1992 Amendments (Act No. 1334) added the following powers:

1. To serve as an urban redevelopment agency under the Urban Redevelopment Law.

2. To serve as a redevelopment agency under the Redevelopment Powers Law.

3. To contract with a city government to carry out City Business Improvement District services in a downtown.

4. To acquire real property through eminent domain (subject to the approval of the City and the meeting of other requirements.) Title 22 of the Official Code of Georgia Annotated, relating to eminent domain, is amended by striking Code Section 22-1-1, relating to eminent domain definitions, and inserting in its place a new Code section.

11

These amendments also gave cities the express authorization to create special tax, fee,

or assessment districts within the area of operation of downtown authorities. This

authorization is pursuant to Article IX, Section II, Paragraph VI of the Georgia Constitution.

Before the enactment of the Downtown Development Authorities Law in 1981, some

two dozen Georgia cities persuaded the General Assembly to create individual downtown

development authorities for each of their communities. At the time this was the only way that

such authorities could be established. Because special local legislation was used it was

possible to tailor each law for particular local desires. For example, some of the authorities

were given the ability to operate anywhere in the city. Many were given very substantial

powers such as the power to levy taxes within a downtown tax district or the power of eminent

domain. Composition of the board of directors could also be tailor-made for particular local

needs.

There were three methods by which these authorities were created:

Statute Under this method a statute of local application was passed by the General Assembly.

The statute detailed the duties, powers, and responsibilities of the authority. This

method was the least used and generally was the most restrictive with regard to the

authority’s powers and flexibility ot act. (Examples: Albany, Fitzgerald, Gainesville,

Perry).

Local Constitutional Amendment with Enabling Legislation To begin this process the General Assembly passed a resolution which proposed an

amendment to the constitution that would authorize it (the General Assembly) to create

the development authority by local law. This proposed constitutional amendment was

12

then put on the ballot in the next general election. If the local voters ratified the

amendment, a local law was passed at a following session of the General Assembly

which defined the powers of the authority, provided for qualifications of the directors,

and specified other details concerning the authority’s operation. The authority was not

operational until the local law took effect.

Generally, the constitutional amendment was kept short, stating only that the General

Assembly was granted the authority to create the development authority, define its

powers, and appoint the authority members, etc. (Examples: Athens, Dalton,

LaGrange, Marietta, Waycross).

Local Constitutional Amendment without Enabling Legislation In this method, the General Assembly passed a resolution that proposed a constitutional

amendment that, if passed, directly created the authority. The constitutional

amendment generally appeared on the ballot in the general election. If the voters

ratified it, the authority became active January 1 following the general election or

whenever members were appointed by the local government after January 1.

(Examples: Acworth, East Point, Powder Springs, Valdosta).

The current constitution permits only constitutional amendments of general application.

Because of this limitation, it is no longer possible to create individual downtown development

authorities by local constitutional amendment.

(For the sake of brevity, those authorities which were created individually by local constitutional amendment or by statute may be referred to in this manual as “local legislation authorities” or “LLA’s”.)

13

Downtown Development Authorities created by Statute Albany (ADICA) ……….. Albany-Dougherty Inner City Authority Augusta …………………. Augusta Redevelopment Authority (1) Carrollton ……………….. Carrollton Redevelopment Authority Fitzgerald ……………….. Fitzgerald Redevelopment Authority Fort Valley ……………… Fort Valley Redevelopment Authority Gainesville ……………… Gainesville Redevelopment Authority Perry ……………………. Perry Redevelopment Authority (1) Created as Augusta-Savannah River Parking and Urban Development Authority in 1975. Name changed in 1978. Authority abolished 1982; assets and obligations transferred to the Augusta Downtown Development Authority. Downtown Development Authorities Created By Local Constitutional Amendment Acworth……………… Acworth Downtown Development Authority Albany (CADA) …….. Central Albany Development Authority (1) Athens ………………. Downtown Athens Development Authority Bainbridge …………… Downtown Bainbridge Development Authority Camilla ……………… Downtown Camilla Development Authority College Park …………..College Park Business and Industrial Development Authority Conyers ……………….Downtown Conyers Development Authority Dalton …………………Downtown Dalton Development Authority Dublin ………………... Downtown Dublin Development Authority East Point ……………. East Point Business and Industrial Development Authority Gainesville …………… Gainesville Redevelopment Authority (2) LaGrange …………….. Downtown LaGrange Development Authority Macon ……………….. Macon-Bibb County Urban Development Authority Marietta ……………… Downtown Marietta Development Authority Powder Springs ……… Powder Springs Downtown Development Authority Savannah ……………. Downtown Savannah Authority Smyrna ……………….Downtown Smyrna Development Authority Statesboro …………… Downtown Statesboro Development Authority Valdosta ……………… Central Valdosta Development Authority Waycross …………….. Downtown Waycross Development Authority West Point …………… Downtown West Point Development Authority (1) Authority abolished 1980. Assets and obligations transferred to Albany-Dougherty Inner City Authority which was created by statute in 1977. (2) Authority created by statute in 1978. A supporting constitutional amendment passed in 1980. There were some local constitutional amendments to create downtown development authorities that were not ratified. These were Americus (1972 and 1978), Brunswick (1964) and Newnan (1975).

14

Many of the LLAs were given the power to directly levy property taxes within their respective downtown district. These are listed below along with the maximum millage rate that each may apply. Acworth 25 mills Albany (CADA)(1) 10 mills Athens 1 mill Bainbridge 20 mills Camilla 5 mills College Park No limit specified Conyers No limit specified Dalton 8 mills Dublin No limit specified East Point No limit specified Gainesville No limit specified LaGrange 20 mills Macon None Marietta 25 mills Powder Springs 25 mills Savannah None Smyrna 5 mills Statesboro None Valdosta 5 mills Waycross 8 mills West Point 20 mills (1) The Central Albany Development Authority was abolished in 1980. NOTE: All Downtown Development Authorities are required to register annually with the Georgia Department of Community Affairs. To verify that your DDA’s registration is current, visit web site http://www.dca.state.ga.us/research/authorities.html#dir NOTE: One can access the GA Code through Lexis Nexis- http://www.lexisnexis.com/hottopics/gacode/Default.asp. For DDA Law, 36-42-1

15

The Steps in Creating a Downtown Development Authority

Step 1.

Set aside time for discussion and come to agreement on the need for a DDA

arising from representatives of the central business district, the community and the city

government. Allow for discussion leading to agreement on the determination and delineation of

the downtown development authority area boundaries.

Partnerships

Public/Private partnerships are key elements in a successful downtown program. Among the partners are city, county, banks, downtown development authority, downtown business organization, Chamber of Commerce, schools, industry, citizens, state agencies and organizations designed to assist with downtown development.

Shared Vision

A downtown vision should describe what the community would prefer downtown to be like In five years. Do you envision a historic downtown filled with exciting retail businesses, delightful restaurants, coffee shops, cultural facilities and activities, all which are bustling with pedestrians. Execute a community visual preference survey. Engage as many citizens as you can in your planning process.

Understanding the Local and Global Market

Have you had a market analysis done? Your competition would not think of operating Without one. What are the realistic retail, office and housing potential of downtown? Strengthen your existing businesses and attract new ones. How does the current local economy compare to the national and regional economy?

Georgia’s Downtown of Tomorrow

The most sustainable downtown would be a mixed investment portfolio of: Commercial; Professional; Government; Residential; and Arts, Culture, Recreation, Religion and Tourism.

16

Enhancement Strategy

You should try to develop a manageable course of action and a series of short term and long term goals to reach your vision which should include clear specifics of what will be done, when and by whom.

Funding must come from a variety of sources, who are the past investors and who are the risk takers? Who should be investing now? Work together to foster a stable atmosphere to encourage new investors.

In Georgia, each city can: 1. Levy up to three mils to fund the work of a development authority. 2. Create a tax district and levy millage to fund special services within the district. 3. Create a Business Improvement District 4. Create a Community Improvement District 5. Create and use a Tax Allocation District (TIF)

Incentives

Federal 20% Investment tax credits for substantial rehabilitation of a National Register Building Georgia deferred local ad-valorem tax incentives which when packaged properly create a significant return on the investment.

Leadership - This partnership should provide and cultivate the leadership necessary to implement your downtown enhancement program. - Build a strong on-going constituency. - Inform and communicate with downtown’s investors, the community at large and with downtown users. - Set a standard of quality in everything you do.

Develop the Local Structure

Utilize one or all of the following: Downtown Development Authority Board of Directors Committees Task force Professional staff Downtown Business Organization Hometown Program Volunteers State agencies and organizations designed to assist with downtown development.

Excerpts from CITYSCAPE Magazine, Feb. 1996 Dolores Palma, HyettPalma

17

Step 2.

Allow for discussion leading to agreement on the determination and delineation of the

downtown development authority area boundaries.

Step 3.

When considering appointment of directors (hereinafter called authority members) the city may

ask the local business association or community leaders to prepare a list of names who meet the

qualifications of State law. The city then appoints the original and subsequent authority members

including appointments to fill a vacancy.

18

Downtown Development Authority created by

1981, 1992 General Law*

A Downtown Development Authority is a body of seven members created and appointed

by the City council and recognized by the State of Georgia as a public corporation with a

specified set of powers and a specific purpose or mission to:

Revitalize and redevelop the central business district of the municipal corporation

(city);

Develop and promote for the public good and general welfare, trade, commerce, industry, and employment opportunities and promote the general welfare of this state by creating a climate favorable to the location of new industry, trade and commerce and the development of existing industry, trade and commerce within the municipal corporations of this state;

Finance projects within the central business districts that will develop and promote the

public good and general welfare;

Issue bonds to finance projects, which will promote the foregoing objectives in accordance with Chapter 42, Section 36-42-1 of the Georgia Code.

* In Georgia there exists a few DDA’s which were created by special acts of the State Legislature. The information above relates to those, which were created by the State enabling legislation in 1981. # OCGA 36-42-7 (a) Directors shall be:

(1) Taxpayers residing in the municipal corporation for which the authority is created;

(2) Owners or operators of businesses located within the downtown development area and who shall be taxpayers residing in the county in which is located the municipal corporation for which the authority is created; or

(3) Persons having a combination of the qualifications specified in paragraphs (1) and (2) of this subsection:

provided, however, that one of such directors may be a member of the governing body of the municipal corporation.

(b) Not less than four of the directors having the qualifications specified in subsection (a) of this Code section shall be persons who, in the judgment of the governing body of the

19

municipal corporation, either have or represent a party who has an economic interest in the redevelopment and revitalization of the downtown development area. Successors to the directors shall be appointed by the governing body of the municipal corporation. (c) The directors shall elect one of their members as chairman and another as vice chairman and shall also elect a secretary and a treasurer or a secretary-treasurer, either of whom may but need not be a director. The directors shall receive no compensation for their services but shall be reimbursed for actual expenses incurred by them in the performance of their duties. (c.1) Not withstanding subsection (a) of this Code section, one director appointed to the board may reside outside the county; provided, however, that such appointed director owns a business within the downtown development area and is a resident of the State of Georgia. If subsequently to his or her appointment to the board pursuant to this subsection, the director ceases to own a business within the downtown development area or reside in the State of Georgia, such director shall relinquish his or her seat on the board. (d) Except for a director who is also a member of the governing body of a municipal corporation, each director shall attend and complete at least eight hours of training on downtown development and redevelopment programs within the first 12 months of a director's appointment to the downtown development authority. Directors in office on January 1, 1992, shall be exempt from this requirement unless reappointed for an additional term. # OCGA 36-42-4 When creating original DDA assign terms as follows: 2 for 2 2 for 4 3 for 6 After July 1, 1994 all new appointments must be for four years. Downtown Development Authority members shall be:

Taxpayers residing in the city for which the DDA is created, or Taxpayers residing within the county, who shall be an owner or operator of a business

located within the downtown development area. An elected city official may fill one of the positions. State code requires that at least four of the seven members must have or represent a party who has an economic interest in the redevelopment and revitalization of the DDA area.

20

(Printed June 1, 2000) 36-42-1. Short title. This chapter may be referred to as the "Downtown Development Authorities Law." (Ga. L. 1981, p. 1744, § 1.) 36-42-2. Legislative purpose. The revitalization and redevelopment of the central business districts of the municipal corporations of this state develop and promote for the public good and general welfare trade, commerce, industry, and employment opportunities and promote the general welfare of this state by creating a climate favorable to the location of new industry, trade, and commerce and the development of existing industry, trade, and commerce within the municipal corporations of this state. Revitalization and redevelopment of central business districts by financing projects under this chapter will develop and promote for the public good and general welfare trade, commerce, industry, and employment opportunities and will promote the general welfare of this state. It is, therefore, in the public interest and is vital to the public welfare of the people of this state, and it is declared to be the public purpose of this chapter, so to revitalize and redevelop the central business districts of the municipal corporations of this state. No bonds, notes, or other obligations, except refunding bonds, shall be issued by an authority under this chapter unless its board of directors adopts a resolution finding that the project for which such bonds, notes, or other obligations are to be issued will promote the foregoing objectives. (Ga. L. 1981, p. 1744, § 9.) 36-42-3. Definitions. As used in this chapter, the term: (1) "Authority" means each public body corporate and politic created pursuant to this chapter. (2) "Cost of the project" or "cost of any project" means and includes: (A) All costs of acquisition (by purchase or otherwise), construction, assembly, installation, modification, renovation, or rehabilitation incurred in connection with any project or any part of any project;

21

(B) All costs of real property, fixtures, or personal property used in or in connection with or necessary for any project or for any facilities related thereto, including, but not limited to, the cost of all land, estates for years, easements, rights, improvements, water rights, connections for utility services, fees, franchises, permits, approvals, licenses, and certificates; the cost of securing any such franchises, permits, approvals, licenses, or certificates; and the cost of preparation of any application therefor and the cost of all fixtures, machinery, equipment, furniture, and other property used in or in connection with or necessary for any project; (C) All financing charges and loan fees and all interest on revenue bonds, notes, or other obligations of an authority which accrues or is paid prior to and during the period of construction of a project and during such additional period as the authority may reasonably determine to be necessary to place such project in operation; (D) All costs of engineering, surveying, and architectural and legal services and all expenses incurred by engineers, surveyors, architects, and attorneys in connection with any project; (E) All expenses for inspection of any project; (F) All fees of fiscal agents, paying agents, and trustees for bondholders under any trust agreement, indenture of trust, or similar instrument or agreement; all expenses incurred by any such fiscal agents, paying agents, and trustees; and all other costs and expenses incurred relative to the issuance of any revenue bonds, notes, or other obligations for any project; (G) All fees of any type charged by an authority in connection with any project; (H) All expenses of or incidental to determining the feasibility or practicability of any project; (I) All costs of plans and specifications for any project; (J) All costs of title insurance and examinations of title with respect to any project; (K) Repayment of any loans made for the advance payment of any part of any of the foregoing costs, including interest thereon and any other expenses of such loans; (L) Administrative expenses of the authority and such other expenses as may be necessary or incidental to any project or the financing thereof or the placing of any project in operation; and (M) The establishment of a fund or funds for the creation of a debt service reserve, a renewal and replacement reserve, or such other funds or reserves as the

22

authority may approve with respect to the financing and operation of any project and as may be authorized by any bond resolution, trust agreement, indenture of trust, or similar instrument or agreement pursuant to the provisions of which the issuance of any revenue bonds, notes, or other obligations of the authority may be authorized. Any cost, obligation, or expense incurred for any of the foregoing purposes shall be a part of the cost of the project and may be paid or reimbursed as such out of proceeds of revenue bonds, notes, or other obligations issued by the authority. (3) "Downtown development area" means the geographical area within a municipal corporation designated as such by the resolution of the governing body activating the authority for such municipal corporation as modified by any subsequent resolution of the governing body of such municipal corporation. (4) "Governing body" means the elected or duly appointed officials constituting the governing body of any municipal corporation in the State of Georgia. (5) "Municipal corporation" means any city or town in this state. (6) "Project" means the acquisition, construction, installation, modification, renovation, or rehabilitation of land, interests in land, buildings, structures, facilities, or other improvements located or to be located within the downtown development area, and the acquisition, installation, modification, renovation, rehabilitation, or furnishing of fixtures, machinery, equipment, furniture, or other property of any nature whatsoever used on, in, or in connection with any such land, interest in land, building, structure, facility, or other improvement, any undertaking authorized by Chapter 36 of this title as part of a central business improvement district, any undertaking authorized in Chapter 44 of this title, the "Redevelopment Powers Law," when the downtown development authority has been designated as a redevelopment agency, or any undertaking authorized in Chapter 61 of this title, the "Urban Redevelopment Law," when the downtown development authority has been designated as an urban redevelopment agency, all for the essential public purpose of the development of trade, commerce, industry, and employment opportunities in its authorized area of operation. A project may be for any industrial, commercial, business, office, parking, public, or other use, provided that a majority of the members of the authority determine, by a duly adopted resolution, that the project and such use thereof would further the public purpose of this chapter. Such term shall include any one or more buildings or structures used or to be used as a not for profit hospital, not for profit skilled nursing home, or not for profit intermediate care home subject to regulation and licensure by the Department of Human Resources and all necessary, convenient, or related interests in land, machinery, apparatus, appliances, equipment, furnishings, appurtenances, site preparation, landscaping, and physical amenities.

23

(7) "Revenue bonds" or "bonds" means any bonds of an authority which are authorized to be issued under the Constitution and laws of Georgia, including refunding bonds but not including notes or other obligations of an authority. (Ga. L. 1981, p. 1744, § 1; Ga. L. 1988, p. 1463, § 1; Ga. L. 1992, p. 6, § 36; Ga. L. 1992, p. 2533, § 1.) 36-42-4. Creation of authorities; appointment and terms of directors; quorum. There is created in and for each municipal corporation in this state a public body corporate and politic to be known as the downtown development authority of such municipal corporation, which shall consist of a board of seven directors. The governing body of the municipal corporation shall appoint two members of the first board of directors for a term of two years each, two for a term of four years each, and three for a term of six years each. The governing body of the municipal corporation may appoint one of its elected members as a member of the downtown development authority. After expiration of the initial terms, except for the director who is also a member of the governing body of the municipal corporation, the terms of all directors shall be six years; provided, however, that the terms shall be four years for those directors appointed or reappointed on or after July 1, 1994. The term of a director who is also a member of the governing body of a municipal corporation shall end when such director is no longer a member of the governing body of the municipal corporation. If at the end of any term of office of any director a successor to such director has not been elected, the director whose term of office has expired shall continue to hold office until a successor is elected. A majority of the board of directors shall constitute a quorum. (Ga. L. 1981, p. 1744, § 2; Ga. L. 1992, p. 2533, § 2; Ga. L. 1994, p. 1006, § 1.) 36-42-5. Activation of authority by resolution; filing of resolution with Secretary of State and Department of Community Affairs; comments by Department of Community Affairs. (a) No authority shall transact any business or exercise any powers under this chapter until the governing body of the municipal corporation shall, by proper resolution, declare that there is a need for an authority to function in such municipal corporation, thereby activating the authority. In its resolution, the governing body shall designate as the downtown development area that geographical area within the municipal corporation which, in the judgment of the governing body, constitutes the central business district and shall appoint the initial directors of the authority. (b) A copy of the governing body's resolution shall be filed with the Secretary of State, who shall maintain a record of all authorities activated under this chapter, and with the Department of Community Affairs. The Department of Community Affairs may, but shall not be required to, furnish written comments to any authority within 30 days after the governing body's resolution is filed with the Department of Community Affairs.

24

Any such comments shall be furnished by the authority to the governing body of the municipal corporation which activated the authority. Such comments shall be informational only and shall not affect any action taken or to be taken by any authority or governing body, and no action of the authority or the governing body shall be required in response to any such comments. The requirements of this subsection relating to filing with the Department of Community Affairs shall apply only to authorities originally activated after July 1, 1983. (Ga. L. 1981, p. 1744, § 3; Ga. L. 1983, p. 1346, § 1.) 36-42-6. Action by resolution subsequent to activating authority. The governing body of the municipal corporation may, by proper resolution adopted subsequent to its resolution activating its authority: (1) Change its designation of the downtown development area to a geographical area within the municipal corporation which, in the judgment of the governing body, at the time constitutes the central business district, provided that any such change in the downtown development area shall be effective prospectively from the adoption of the resolution providing therefor and shall not affect any project of, or any action taken by, the authority within or with respect to the downtown development area as defined prior to such change becoming effective; and (2) Appoint directors of the authority which the governing body of the municipal corporation is authorized to appoint; and (3) Disapprove any proposed issue of revenue bonds, notes, or other obligations of the authority, in the manner provided in this chapter. (Ga. L. 1981, p. 1744, § 4; Ga. L. 1983, p. 1346, § 2.) 36-42-7. Qualifications and reimbursement of directors; election of officers; training. (a) Directors shall be: (1) Taxpayers residing in the municipal corporation for which the authority is created; (2) Owners or operators of businesses located within the downtown development area and who shall be taxpayers residing in the county in which is located the municipal corporation for which the authority is created; or (3) Persons having a combination of the qualifications specified in paragraphs (1) and (2) of this subsection;

25

provided, however, that one of such directors may be a member of the governing body of the municipal corporation. (b) Not less than four of the directors having the qualifications specified in subsection (a) of this Code section shall be persons who, in the judgment of the governing body of the municipal corporation, either have or represent a party who has an economic interest in the redevelopment and revitalization of the downtown development area. Successors to the directors shall be appointed by the governing body of the municipal corporation. (c) The directors shall elect one of their members as chairman and another as vice chairman and shall also elect a secretary and a treasurer or a secretary-treasurer, either of whom may but need not be a director. The directors shall receive no compensation for their services but shall be reimbursed for actual expenses incurred by them in the performance of their duties. Each authority shall have perpetual existence. (d) Except for a director who is also a member of the governing body of a municipal corporation, each director shall attend and complete at least eight hours of training on downtown development and redevelopment programs within the first 12 months of a director's appointment to the downtown development authority. Directors in office on January 1, 1992, shall be exempt from this requirement unless reappointed for an additional term. (Ga. L. 1981, p. 1744, § 5; Ga. L. 1990, p. 570, § 1; Ga. L. 1991, p. 94, § 36; Ga. L. 1992, p. 2533, § 2.) 36-42-8. Powers of authorities generally. (a) Each authority shall have all of the powers necessary or convenient to carry out and effectuate the purposes and provisions of this chapter, including, without limiting the generality of the foregoing, the power: (1) To bring and defend actions; (2) To adopt and amend a corporate seal; (3) To make and execute contracts, agreements, and other instruments necessary or convenient to exercise the powers of the authority or to further the public purpose for which the authority is created, including, but not limited to, contracts for construction of projects, leases of projects, contracts for sale of projects, agreements for loans to finance projects, contracts with respect to the use of projects, and agreements to join or cooperate with an urban residential finance authority, created by the municipal corporation within which the downtown development area is located

26

pursuant to the provisions of Chapter 41 of this title, in the exercise, either jointly or otherwise, of any or all of its powers for the purpose of financing, including the issuance of revenue bonds, notes, or other obligations of the authorities, planning, undertaking, owning, constructing, operating, or contracting with respect to any projects located within the downtown development area; (4) To acquire by purchase, lease, or otherwise and to hold, lease, and dispose of real and personal property of every kind and character, or any interest therein, in furtherance of the public purpose of the authority; (5) To finance (by loan, grant, lease, or otherwise), refinance, construct, erect, assemble, purchase, acquire, own, repair, remodel, renovate, rehabilitate, modify, maintain, extend, improve, install, sell, equip, expand, add to, operate, or manage projects and to pay the cost of any project from the proceeds of revenue bonds, notes, or other obligations of the authority or any other funds of the authority, or from any contributions or loans by persons, corporations, partnerships (whether limited or general), or other entities, all of which the authority is authorized to receive, accept, and use; (6) To borrow money to further or carry out its public purpose and to execute revenue bonds, notes, other obligations, leases, trust indentures, trust agreements, agreements for the sale of its revenue bonds, notes, or other obligations, loan agreements, mortgages, deeds to secure debt, trust deeds, security agreements, assignments, and such other agreements or instruments as may be necessary or desirable, in the judgment of the authority, to evidence and to provide security for such borrowing; (7) To issue revenue bonds, notes, or other obligations of the authority and use the proceeds thereof for the purpose of paying, or loaning the proceeds thereof to pay, all or any part of the cost of any project and otherwise to further or carry out the public purpose of the authority and to pay all costs of the authority incidental to, or necessary and appropriate to, furthering or carrying out such purpose; (8) To make application directly or indirectly to any federal, state, county, or municipal government or agency or to any other source, whether public or private, for loans, grants, guarantees, or other financial assistance in furtherance of the authority's public purpose and to accept and use the same upon such terms and conditions as are prescribed by such federal, state, county, or municipal government or agency or other source; (9) To enter into agreements with the federal government or any agency thereof to use the facilities or services of the federal government or any agency thereof in order to further or carry out the public purposes of the authority;

27

(10) To contract for any period, not exceeding 50 years, with the State of Georgia, state institutions, or any municipal corporation or county of this state for the use by the authority of any facilities or services of the state or any such state institution, municipal corporation, or county, or for the use by any state institution or any municipal corporation or county of any facilities or services of the authority, provided that such contracts shall deal with such activities and transactions as the authority and any such political subdivision with which the authority contracts are authorized by law to undertake; (11) To extend credit or make loans to any person, corporation, partnership (whether limited or general), or other entity for the costs of any project or any part of the costs of any project, which credit or loans may be evidenced or secured by loan agreements, notes, mortgages, deeds to secure debt, trust deeds, security agreements, assignments, or such other instruments, or by rentals, revenues, fees, or charges, upon such terms and conditions as the authority shall determine to be reasonable in connection with such extension of credit or loans, including provision for the establishment and maintenance of reserve funds; and, in the exercise of powers granted by this chapter in connection with any project, the authority shall have the right and power to require the inclusion in any such loan agreement, note, mortgage, deed to secure debt, trust deed, security agreement, assignment, or other instrument of such provisions or requirements for guaranty of any obligations, insurance, construction, use, operation, maintenance, and financing of a project, and such other terms and conditions, as the authority may deem necessary or desirable; (12) As security for repayment of any revenue bonds, notes, or other obligations of the authority, to pledge, mortgage, convey, assign, hypothecate, or otherwise encumber any property of the authority (including, but not limited to, real property, fixtures, personal property, and revenues or other funds) and to execute any lease, trust indenture, trust agreement, agreement for the sale of the authority's revenue bonds, notes, or other obligations, loan agreement, mortgage, deed to secure debt, trust deed, security agreement, assignment, or other agreement or instrument as may be necessary or desirable, in the judgment of the authority, to secure any such revenue bonds, notes, or other obligations, which instruments or agreements may provide for foreclosure or forced sale of any property of the authority upon default in any obligation of the authority, either in payment of principal, premium, if any, or interest or in the performance of any term or condition contained in any such agreement or instrument. The State of Georgia, on behalf of itself and each county, municipal corporation, political subdivision, or taxing district therein, waives any right it or such county, municipal corporation, political subdivision, or taxing district may have to prevent the forced sale or foreclosure of any property of the authority upon such default and agrees that any agreement or instrument encumbering such property may be foreclosed in accordance with law and the terms thereof;

28

(13) To receive and use the proceeds of any tax levied by a municipal corporation to pay the costs of any project or for any other purpose for which the authority may use its own funds pursuant to this chapter; (14) To receive and administer gifts, grants, and devises of money and property of any kind and to administer trusts; (15) To use any real property, personal property, or fixtures or any interest therein or to rent or lease such property to or from others or make contracts with respect to the use thereof, or to sell, lease, exchange, transfer, assign, pledge, or otherwise dispose of or grant options for any such property in any manner as it deems to the best advantage of the authority and the public purpose thereof; (16) To acquire, accept, or retain equitable interests, security interests, or other interests in any real property, personal property, or fixtures by loan agreement, note, mortgage, deed to secure debt, trust deed, security agreement, assignment, pledge, conveyance, contract, lien, loan agreement, or other consensual transfer in order to secure the repayment of any moneys loaned or credit extended by the authority; (17) To appoint, select, and employ engineers, surveyors, architects, urban or city planners, fiscal agents, attorneys, and others and to fix their compensation and pay their expenses; (18) To encourage and promote the improvement and revitalization of the downtown development area and to make, contract for, or otherwise cause to be made long-range plans or proposals for the downtown development area in cooperation with the municipal corporation within which the downtown development area is located; (19) To adopt bylaws governing the conduct of business by the authority, the election and duties of officers of the authority, and other matters which the authority determines to deal with in its bylaws; (20) To exercise any power granted by the laws of this state to public or private corporations which is not in conflict with the public purpose of the authority; (21) To do all things necessary or convenient to carry out the powers conferred by this chapter; (22) To serve as an urban redevelopment agency pursuant to Chapter 61 of this title; (23) To contract with a municipal corporation to carry out supplemental services in a city business improvement district established pursuant to Chapter 43 of this title; and

29

(24) To serve as a redevelopment agency pursuant to Chapter 44 of this title. (b) The powers enumerated in each paragraph of subsection (a) of this Code section are cumulative of and in addition to those powers enumerated in the other paragraphs of subsection (a) of this Code section and elsewhere in this chapter; and no such power limits or restricts any other power of the authority. (Ga. L. 1981, p. 1744, § 6; Ga. L. 1982, p. 3, § 36; Ga. L. 1988, p. 902, § 1; Ga. L. 1988, p. 1463, § 2; Ga. L. 1992, p. 2533, § 3.) 36-42-8.1. Eminent domain by municipality or authority. (a) Except as otherwise provided in subsection (c) of this Code section, a municipality or a downtown development authority shall have the right to acquire, by exercise of the power of eminent domain, any real property which it may deem necessary for its purposes under this chapter after its adoption of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. A municipality or a downtown development authority may exercise the power of eminent domain in the manner provided in Title 22 or it may exercise the power of eminent domain in the manner provided by any other applicable statutory provisions for the exercise of such power. Property already devoted to a public use may be acquired, provided that no real property belonging to the municipality, a county, the state, or any political subdivision thereof may be acquired without its consent. (b) Whenever condemnation proceedings are instituted and carried on by a municipality or downtown development authority in accordance with subsection (a) of this Code section or through any other method of condemnation provided by law, upon the payment by the municipality or county seeking condemnation of the amount of the award and final judgment on appeal, the municipality or downtown development authority shall become vested with a fee simple indefeasible title to the property to which the condemnation proceedings relate. (c) A downtown development authority may not acquire real property through the exercise of the power of eminent domain until the following conditions and requirements have been met: (1) The proposed rehabilitation of the property must be set forth in a downtown development plan adopted by the municipality and incorporated in any comprehensive plan of the municipality submitted to the Department of Community Affairs pursuant to Chapter 70 of this title; (2) The governing body of the municipality shall adopt a resolution approving the proposed use of eminent domain power by the downtown development authority;

30

(3) The downtown development authority shall, in writing, notify the owner of the real property proposed to be acquired of the planned rehabilitation of the property as set forth in the downtown development plan for the downtown development area wherein the property is located; (4) Within 30 days after being so notified, the owner of the property shall have the option of notifying the downtown development authority, in writing, of his willingness and intention to rehabilitate and maintain the property in accordance with the downtown development plan. In the event of multiple ownership of the property, unanimous agreement by the owners shall be required, and the failure of any one owner to notify the downtown development authority within the time limitations specified in this paragraph of his willingness and intention to rehabilitate and maintain the property in accordance with the downtown development plan shall be deemed to be a failure to exercise the option provided in this paragraph; and (5) The owner of such property may execute an agreement with the downtown development authority to rehabilitate the property in accordance with the downtown development plan. Any such agreement shall be as the downtown development authority deems necessary and appropriate as to form and content. In connection therewith, the downtown development authority shall have the right to require sufficient performance, payment, and completion bonds. In the event that any such owner, at any time, fails to comply with or defaults in the performance of the provisions of the agreement, such property shall no longer be subject to the agreement, the option provided by paragraph (4) of this subsection shall no longer apply, and the property may be acquired by the downtown development authority by purchase or through the exercise of the power of eminent domain. In the alternative, the downtown development authority may either specifically enforce the agreement, exercise any rights under any bonds which may have been required, and obtain any other legal or equitable relief as may be available to the downtown development authority or, if the owner fails to exercise the option to rehabilitate the property or defaults on the agreement to rehabilitate the property, the downtown development authority may implement those portions of the downtown development plan with respect to such property to the extent the authority deems necessary and the costs of implementing such plan shall be a lien against the property enforceable in the same manner as a lien for taxes. (Code 1981, § 36-42-8.1, enacted by Ga. L. 1992, p. 2533, § 4.) 36-42-9. Revenue bonds generally. (a) Revenue bonds, notes, or other obligations issued by an authority shall be paid solely from the property (including, but not limited to, real property, fixtures, personal property, revenues, or other funds) pledged, mortgaged, conveyed, assigned,

31

hypothecated, or otherwise encumbered to secure or to pay such bonds, notes, or other obligations. (b) All revenue bonds, notes, and other obligations shall be authorized by resolution of the authority, adopted by a majority vote of the directors of the authority at a regular or special meeting. (c) Reserved. (d) Revenue bonds, notes, or other obligations shall bear such date or dates, shall mature at such time or times (not more than 40 years from their respective dates), shall bear interest at such rate or rates (which may be fixed or may fluctuate or otherwise change from time to time), shall be subject to redemption on such terms, and shall contain such other terms, provisions, covenants, assignments, and conditions as the resolution authorizing the issuance of such bonds, notes, or other obligations may permit or provide. The terms, provisions, covenants, assignments, and conditions contained in or provided or permitted by any resolution of the authority authorizing the issuance of such revenue bonds, notes, or other obligations shall bind the directors of the authority then in office and their successors. (e) The authority shall have power from time to time and whenever it deems it expedient to refund any bonds by the issuance of new bonds, whether or not the bonds to be refunded have matured, and may issue bonds partly to refund bonds then outstanding and partly for any other purpose permitted under this chapter. The refunding bonds may be exchanged for the bonds to be refunded, with such cash adjustments as may be agreed upon, or may be sold and the proceeds applied to the purchase or redemption of the bonds to be refunded. (f) There shall be no limitation upon the amount of revenue bonds, notes, or other obligations which any authority may issue. Any limitations with respect to interest rates or any maximum interest rate or rates found in Article 3 of Chapter 82 of this title, the "Revenue Bond Law," the usury laws of this state, or any other laws of this state shall not apply to revenue bonds, notes, or other obligations of an authority. (Ga. L. 1981, p. 1744, § 7; Ga. L. 1983, p. 1346, § 3; Ga. L. 1984, p. 941, § 2.) 36-42-10. Applicability of "Revenue Bond Law"; form and provisions for exchange and transfer of bonds; certificate of validation; specification of interest rates in notice to district attorney or Attorney General. (a) All bonds issued by the authority under this chapter shall be issued and validated under and in accordance with Article 3 of Chapter 82 of this title, the "Revenue Bond Law," except as provided in this chapter, provided that notes and other obligations of the authority may, but shall not be required to, be so validated.

32

(b) Bonds issued by an authority may be in such form, either coupon or fully registered, or both coupon and fully registered, and may be subject to such exchangeability and transferability provisions, as the bond resolution authorizing the issuance of such bonds or any indenture or trust agreement may provide. (c) Bonds shall bear a certificate of validation. The signature of the clerk of the superior court of the county in which the issuing authority is located may be made on the certificate of validation of such bonds by facsimile or by manual execution, stating the date on which such bonds were validated; and such entry shall be original evidence of the fact of judgment and shall be received as original evidence in any court in this state. (d) In lieu of specifying the rate or rates of interest which bonds to be issued by an authority are to bear, the notice to the district attorney or the Attorney General, the notice to the public of the time, place, and date of the validation hearing, and the petition and complaint for validation may state that the bonds when issued will bear interest at a rate not exceeding a maximum per annum rate of interest (which may be fixed or may fluctuate or otherwise change from time to time) specified in such notices and petition and complaint or may state that, in the event the bonds are to bear different rates of interest for different maturity dates, none of such rates will exceed the maximum rate (which may be fixed or may fluctuate or otherwise change from time to time) so specified; provided, however, that nothing in this Code section shall be construed as prohibiting or restricting the right of the authority to sell such bonds at a discount, even if in doing so the effective interest cost resulting therefrom would exceed the maximum per annum interest rate specified in such notices and in the petition and complaint. (e) The terms "cost of the project" and "cost of any project" shall have the meaning prescribed in this chapter whenever those terms are referred to in bond resolutions of an authority, in bonds, notes, or other obligations of an authority, or in notices or proceedings to validate such bonds, notes, or other obligations of an authority. (Ga. L. 1981, p. 1744, § 8.) 36-42-11. Agreements and instruments of authority generally; use of proceeds; subsequent issues; bond anticipation notes. (a) Subject to the limitations and procedures provided by this Code section and by Code Section 36-42-10, the agreements or instruments executed by an authority may contain such provisions not inconsistent with law as shall be determined by the board of directors of the authority.

33

(b) The proceeds derived from the sale of all bonds, notes, and other obligations issued by an authority shall be held and used for the ultimate purpose of paying, directly or indirectly as permitted in this chapter, all or part of the cost of any project, or for the purpose of refunding any bonds, notes, or other obligations issued in accordance with this chapter. (c) Issuance by an authority of one or more series of bonds, notes, or other obligations for one or more purposes shall not preclude it from issuing other bonds, notes, or other obligations in connection with the same project or with any other projects; but the proceeding wherein any subsequent bonds, notes, or other obligations are issued shall recognize and protect any prior loan agreement, mortgage, deed to secure debt, trust deed, security agreement, or other agreement or instrument made for any prior issue of bonds, notes, or other obligations, unless in the resolution authorizing such prior issue the right is expressly reserved to the authority to issue subsequent bonds, notes, or other obligations on a parity with such prior issue. (d) An authority shall have the power and is authorized, whenever bonds of the authority shall have been validated as provided in this chapter, to issue from time to time its notes in anticipation of such bonds as validated and to renew from time to time any such notes by the issuance of new notes, whether or not the notes to be renewed have matured. The authority may issue such bond anticipation notes only to provide funds which would otherwise be provided by the issuance of the bonds as validated. Such notes may be authorized, sold, executed, and delivered in the same manner as bonds. As with its bonds, the authority may sell such notes at public sale or at private sale. Any resolution or resolutions authorizing notes of the authority or any issue thereof may contain any provisions which the authority is authorized to include in any resolution or resolutions authorizing bonds of the authority to any issue thereof; and the authority may include in any notes any terms, covenants, or conditions which the authority is authorized to include in any bonds. Validation of such bonds shall be a condition precedent to the issuance of such notes, but it shall not be required that such notes be judicially validated. Bond anticipation notes shall not be issued in an amount exceeding the par value of the bonds in anticipation of which they are to be issued. (Ga. L. 1981, p. 1744, § 8.) 36-42-12. Obligations of authorities not public debt of state or political subdivision thereof. No bonds, notes, or other obligations of, and no indebtedness incurred by, an authority shall constitute an indebtedness or obligation of the State of Georgia or any county, municipal corporation, or political subdivision thereof, nor shall any act of any authority in any manner constitute or result in the creation of an indebtedness of this state or any county, municipal corporation, or political subdivision thereof. No holder or holders of any such bonds, notes, or other obligations shall ever have the right to

34

compel any exercise of the taxing power of the state or any county, municipal corporation, or political subdivision thereof, nor to enforce the payment thereof against the state or any such county, municipal corporation, or political subdivision. (Ga. L. 1981, p. 1744, § 11.) 36-42-13. Constitutional authority for enactment of chapter; tax exemption. This chapter is enacted pursuant to authority granted the General Assembly by the Constitution of Georgia. Each authority created pursuant to this chapter is created for nonprofit and public purposes; and it is found, determined, and declared that the creation of each such authority and the carrying out of its corporate purposes is in all respects for the benefit of the people of this state and that each authority is an institution of purely public charity and will be performing an essential governmental function in the exercise of the power conferred upon it by this chapter; and for such reasons the state covenants with the holders from time to time of the bonds, notes, and other obligations issued under this chapter that no such authority shall be required to pay any taxes or assessments imposed by this state or any counties, municipal corporations, political subdivisions, or taxing districts thereof upon any property acquired by the authority or under its jurisdiction, control, possession, or supervision or leased by it to others or upon its activities in the operation or maintenance of any such property or on any income derived by the authority in the form of fees, recording fees, rentals, charges, purchase price, installments, or otherwise; and that the bonds, notes, and other obligations of each such authority, their transfer, and the income therefrom shall at all times be exempt from taxation within this state. The tax exemption provided for in this Code section shall not include any exemption from sales and use tax on property purchased by the authority or for use by the authority. (Ga. L. 1981, p. 1744, § 12.) 36-42-14. Effect of chapter on other public authorities. This chapter shall not affect any other authority existing as of April 17, 1981, or thereafter under general or local constitutional amendment or under general or local law. (Ga. L. 1981, p. 1744, § 14.) 36-42-15. Construction of chapter; applicability of the "Georgia Securities Act of 1973." This chapter shall be liberally construed to effect the purposes hereof. The offer, sale, or issuance of bonds, notes, or other obligations by any authority shall not be subject to regulation under Chapter 5 of Title 10, the "Georgia Securities Act of 1973." No notice, proceeding, or publication except those required by this chapter shall be

35

necessary to the performance of any act authorized by this chapter, nor shall any such act be subject to referendum. (Ga. L. 1981, p. 1744, § 10.) 36-42-16. Creation of special districts. Pursuant to Article IX, Section II, Paragraph VI of the Constitution of the State of Georgia, municipalities may create one or more special districts within the area of operation of a downtown development authority for the purpose of levying and collecting taxes, fees, or assessments to pay the cost of any project or to support the exercise of any other powers which the authority may possess. (Code 1981, § 36-42-16, enacted by Ga. L. 1992, p. 2533, § 5.)

36

Step 4.

A Resolution is drafted and approved by the city government creating the DDA

which will include a determination of need; the meets and bounds of the DDA area;

and the names and terms of the original authority members.

37

Sample

Resolution for Activation of a Downtown Development Authority

Note: The provisions of each City’s resolution must be drafted to meet the City’s needs. This form may serve as an illustration, or as a point from which to commence drafting, but the resolution must be tailored in each case to the peculiar needs of the City. This particular form, for example, was written for a Mayor and Council form of municipal government which is not applicable to all Georgia cities. Be sure to have your City Attorney review this item before taking any action on this matter. ****************************************************************************** A RESOLUTION TO DECLARE THE NEED FOR A DOWNTOWN DEVELOPMENT AUTHORITY TO FUNCTION IN THE CITY OF ________________________________, GEORGIA, PURSUANT TO THE PROVISION OF THE DOWNTOWN DEVELOPMENT AUTHORITIES LAW O.C.G.A. 36-42-1, et seq. TO APPOINT A BOARD OF DIRECTORS FOR THE DOWNTOWN DEVELOPMENT AUTHORITY; TO DESIGNATE A DOWNTOWN DEVELOPMENT AREA; TO PROVIDE FOR FILING WITH THE SECRETARY OF STATE OF THE STATE OF GEORGIA OF A COPY OF THIS RESOLUTION; TO REPEAL CONFLICTING RESOLUTIONS; TO PROVIDE FOR AN EFFECTIVE DATE AND FOR OTHER PURPOSES:

W I T N E S S E T H: WHEREAS, it has been determined by the Mayor and Council of the City of ___________________________, Georgia (the “City”) that there is a need in the City for the revitalization and redevelopment of the central business district of the City of develop and promote for the public good and general welfare trade, commerce, industry and employment opportunities and to promote the general welfare of the State of Georgia by creating a climate favo et seq. rable to the location of new industry, trade and commerce and the development of existing industry, trade and commerce within the City; and WHEREAS, it has been determined by the Mayor and Council of the City that revitalization and redevelopment of the central business district of the City by financing projects under the Downtown Development Authorities Law (1981 Ga. Laws p. 1744; O.C.G.A. 36-42-1, et seq. - the “Downtown Development Authorities Law”) will develop and promote for the public good and general welfare trade, commerce, industry and employment opportunities and will promote the general welfare of the State of Georgia; and WHEREAS, it has been determined by the Mayor and Council of the City that is in the public interest and is vital to the public welfare of the people of the City and of the people of the Sate of Georgia to revitalize and redevelop the central business district of the City; and WHEREAS, the Downtown Development Authorities Law creates in and for each municipal corporation in the State of Georgia a downtown development authority for the purpose

38

of revitalizing and redeveloping the central business district of such municipal corporation and promoting for the public good and general welfare, trade, commerce, industry and employment opportunities and promoting the general welfare of the State of Georgia; and WHEREAS, the Mayor and Council of the City, after thorough investigation, have determined that it is desirable and necessary that the Downtown Development Authority of the City be activated immediately, pursuant to the Downtown Development Authorities Law, in order to fulfill the needs expressed herein; NOW, THEREFORE, BE IT RESOLVED, by the Mayor and Council of the City, and it is hereby resolved by the same, that there is hereby determined and declared to be a present and future need for a Downtown Development Authority (as more fully described and defined in the Downtown Development Authorities Law to function in the City. BE IT FURTHER RESOLVED that there is hereby activated in the City the public body corporate and politic known as the “Downtown Development Authority of ________________ ___________________________” which was created upon the adoption and approval of the Downtown Development Authorities Law. BE IF FURTHER RESOLVED that there are hereby appointed as members of the first Board of Directors of the Downtown Development Authority of the City the following named persons, each of whom shall be: (1) a taxpayer residing in the municipal corporation for which the authority is created; (2) an owner or operator of a business located within the downtown development area and a taxpayer residing in the County in which is located the municipal corporation for which the authority is created. One such director (authority member) may be a member of the governing body of the municipal corporation and not less than four shall be or represent a party who has an economic interest in the redevelopment and revitalization of the downtown development area (hereinafter defined). Names Term of Office _________________________________ Two years

_________________________________ Two years

_________________________________ Four years

_________________________________ Four years

_________________________________ Six years

_________________________________ Six years

_________________________________ Six years

BE IT FURTHER RESOLVED that commencing with the date of adoption of this resolution each of the persons named above as directors shall serve in such capacity for the

39

number of years set forth opposite his or her respective name, however, that the terms shall be four years for those directors appointed or reappointed on or after July 1, 1994. The term of a director (authority member) who is also a member of the governing body of a municipal corporation shall end when such director (member) is no longer a member of the governing body of the municipal corporation. BE IT FURTHER RESOLVED that the Board of Directors hereinbefore elected shall organize itself, carry out its duties and responsibilities and exercise its powers and prerogatives in accordance with the terms and provision of the Downtown Development Authorities Law as it now exists and as it might hereafter be amended or modified. BE IT FURTHER RESOLVED that the “downtown development area” shall be that geographical area described in Exhibit A, attached hereto and made a part hereof by reference, which area, in the judgment of the Mayor and Council of the City, constitutes the “central business district” of the City as contemplated by the Downtown Development Authorities Law. BE IT FURTHER RESOLVED that the City shall furnish promptly to the Secretary of State of the State of Georgia a certified copy of this resolution in compliance with the provisions of the Downtown Development Authorities Law. BE IT FURTHER RESOLVED that the action taken by the Mayor and Council of the City as herein specified is not intended in any way to affect any public corporation, industrial development, downtown development, or payroll authority previously created by legislative act or constitutional amendment including, without limitation, its existence, purpose, organization, powers or function. BE IT FURTHER RESOLVED that any and all resolutions in conflict with this resolution be and the same are hereby repealed. BE IT FURTHER RESOLVED that this resolution shall be effective immediately upon its adoption by the Mayor and Council of the City, and from and after such adoption the Downtown Development Authority of the City shall be deemed to be created and activated. Adopted and approved this ________ day of __________________________, 19 ____. ________________________________________

________________________________________

________________________________________

________________________________________

Attest: ______________________________________ City Clerk

40

BOUNDARY DESCRIPTION OF DOWNTOWN DEVELOPMENT AREA

(Describe by Metes and Bounds or Streets)

City of “City Name” “Date”

The “Your City” downtown development area shall consist of that area bounded on the north by

“Street Name” , on the east by “Street Name”, on the south by “Street Name” and on the west by

“Street Name”. Said area shall include all properties abutting on the north side of “Street

Name”, the east side of “Street Name”, the south side of “Street Name” and west side of “Street

Name” within the area described.

41

Sample

Resolution for Amending Downtown Development Authority Boundaries

Note: The provisions of each City’s amendment must be drafted to meet the City’s needs. This form may serve as an illustration, or as a point from which to commence drafting, but the resolution must be tailored in each case to the peculiar needs of the City. This particular form, for example, was written for a Mayor and Council form of municipal government which is not applicable to all Georgia cities. Be sure to have your City Attorney review this item before taking any action on this matter. ******************************************************************************

A RESOLUTION

TO AMEND THE EXISTING DOWNTOWN DEVELOPMENT AUTHORITY AREA BOUNDARIES IN THE CITY OF _________________________, GEORGIA

WHEREAS, it has been determined by the Mayor and Council of the City that it is in the public interest and is vital to the public welfare of the people of the City and of the people of the State of Georgia to revitalize and redevelop and amend the boundaries of the Downtown Development Authority area of the City; and WHEREAS, the Mayor and Council of the City, after thorough investigation, have determined that it is desirable and necessary to amend the Downtown Development Authority area boundaries of the City, and WHEREAS, in accordance with O.C.G.A. 36-42-6 (1.), the city by proper resolution may change its designation of the downtown development area to a geographical area within the municipal corporation which, in the judgment of the City, at the time of this resolution constitutes the Downtown Development Authority area, NOW, THEREFORE, BE IT RESOLVED, by the Mayor and Council of the City of __________ that the boundaries of the Downtown Development Authority area are hereby determined and declared to be as contained on Exhibit A, which is attached to and made part of this resolution. Adopted and approved this ________ day of __________________________, 19 ____. Attest: Approved as to Form ______________________________________ ______________________________ City Clerk City Attorney

42

BOUNDARY DESCRIPTION OF DOWNTOWN DEVELOPMENT AREA

Describe by Metes and Bounds or Streets or by Map or a combination thereof.

43

Step 5. Downtown Development Authorities are being created and reactivated in a number

of Georgia cities. The Georgia Code (Ga. Code 36-42-5) requires each newly formed

Downtown Development Authority to register with the following agencies:

Georgia Department of Community Affairs

Jonathan Sharpe .  Office of Research and Communications 60 Executive Park South, N.E. Atlanta, Georgia 30329 (404) 679-4996

jonathan.sharpe@dca.ga.gov http://www.dca.ga.gov/AuthoritiesRegistration/Index.aspx

Complete Authorities Registration Form

Note: Authorities originally activated after July 1, 1983 must also send a copy of the Resolution. Authorities must register by December 31st of each year.

Contact the Georgia Department of Community Affairs for registration form.

Secretary of State Administrative & Public Services Suite 816, West Tower 2 Martin Luther King Jr. Drive Atlanta, Georgia 30334 (404) 657-9499 Send a copy of the Resolution only to the State.

44

Step 6. Before the City/DDA holds its first meeting and for each subsequent meeting, the

City/DDA must notify the public pursuant to OCGA 50-14-1, Georgia’s Open

Meetings Law.

Step 7. The newly activated DDA should adopt By-Laws and appoint officers.

45

SAMPLE

BY-LAWS OF A

DOWNTOWN DEVELOPMENT AUTHORITY

ARTICLE I

MEMBERS Section 1. Management Powers, Number, Qualification and Term. The property, affairs and business of the Downtown Development Authority of ( ) shall be managed by its directors consisting of seven persons, appointed from time to time as provided by law (O.C.G.A. 36-42-1). The qualifications of the directors shall be as provided by law. Each director shall serve for the length of time provided by law. Section 2. Powers. The directors shall have such power and authority as is conferred upon them by the Downtown Development Authority Law of 1981, as the same now exists or may hereafter be amended, and such other power and authority as may be contained under the Constitution and the Laws of the State of Georgia as the same may now or hereafter exist. Section 3. Regular Meetings. Regular meetings of the Authority shall be held on ________________________________________________________________. Notice of the time and place of such meeting may from time to time be fixed by resolution of the Authority, or if not fixed by the Chairman in the same manner as hereinafter specified for giving notice of special meetings. All meetings shall be conducted in accordance with the Georgia Open Code Meetings Act (O.C.G.A. Section 50-14-1 et. seq.) Section 4. Special Meetings. Special meetings may be held upon the call of the Chairman, Secretary, Treasurer, or any two directors at such time during regular business hours and at such place within the City of _________________________________, Georgia, as shall be specified in the notice of such meeting. Notice of special meetings may be either oral or written. Oral notice may be delivered personally or by telephone and shall be given at least twenty-four (24) hours prior to the time of the meeting. Written notice may be sent by mail or telegram or delivered personally. If delivered personally or by telegram, such notice shall be delivered twenty-four (24) hours prior to the time of the meeting. If written notice is sent by mail, such notice shall be mailed two (2) days prior to the time of the meeting. Unless specified otherwise, any notice hereinafter called for in these by-laws shall be given as specified in this section. No notice of any meeting need be given any director who attends such meeting unless such director attending at the beginning of such meeting states any objection or objections to the place and time of the meeting, to the manner in which it has been called or convened or to the transaction of business. No notice shall be required to be given any director who at any time before or after the meeting waives notice of the meeting in writing.

46

Section 5. Quorum A majority of the directors, at a meeting duly assembled, shall constitute a quorum for the transaction of business. Unless otherwise specifically required by statute or these by-laws, the act of a majority of such directors present at a meeting at which a quorum is present shall be the act of the Authority, and if at any meeting of the Authority there shall be less than a quorum, a majority of those present may adjourn the meeting without further notice, until a quorum shall have been obtained. Section 6. Parliamentary Procedures. In case of dispute concerning parliamentary procedures governing the conduct of meetings of the Authority, Roberts Rules of Order shall govern. Section 7. Nominations of Members. Prior to the expiration of the term of any director of the Authority, the Chairman shall appoint an owner of real property in the downtown district and an owner of a business establishment whose principal place of business is located in the downtown district, who are not directors of the Authority, to act as a nominating committee and to submit nominations for directors to the (governing body of the City).

ARTICLE II

OFFICERS Section 1. Number. The directors shall elect from one of their number a Chairman, a Secretary, and a Treasurer, and the directors shall elect a Recording Secretary, who may be, but need not be, a director. Section 2. Election. A meeting shall be held on _________________________, and thereafter on _______________________ of every other year for the purpose of electing new officers. If _________________________ falls on a Saturday or Sunday or a national holiday, then the meeting shall be held on the next succeeding day which is not Saturday or Sunday or a national holiday. Notice of the time and place of such meeting shall be given by the retiring Chairman. Section 3. Term and Removal. All officers shall be elected by and serve at the discretion of the directors and any officer may be removed from office, either with or without cause, at any time, by the affirmative vote of the majority of the directors of the authority then in office. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled by the directors for the unexpected portion of the term. Resignation shall be submitted in writing to the Chairman. Section 4. Powers. The powers and duties of the officers shall be as provided from time to time by resolution or other directive of the directors. In the absence of such provisions, respective officers shall have the powers and shall discharge the duties customarily and usually held and performed by like officers of authorities similar in organization and purposes to this Authority. The Recording Secretary, if a nonmember, shall attend meetings for the purpose of recording the minutes of such meetings, but shall not have any of the powers, rights, or duties of directors.

47

ARTICLE III

FISCAL YEAR Section 1. Time. The fiscal year of the Authority shall begin on the first day of June of each year and end on the last day of May of each year. Section 2. Annual Meetings. An annual meeting of the Authority shall be held during the first full week of ______________________________. Notice of the time and place of such meeting shall be given by the Chairman. Section 3. Annual Audit. The Treasurer shall cause an annual audit of the books of the Authority to be made by the firm which audits the books of the City of _____________________________ and present such audit to the directors of the Authority. A copy of the audit shall be filed with the State Auditor; if necessary, to comply with the Local Government Financial Management Standards Act (Georgia Laws, 1980, p. 1738).

ARTICLE IV

CORPORATE SEAL Section 1. Seal. The Seal of the Authority shall consist of an impression bearing the name “Downtown Development Authority of __________________________” around the perimeter and the word “SEAL” and the year of activation in the center thereof. In lieu thereof, the Authority may use an impression or writing bearing the word “SEAL” enclosed in parentheses or scroll, which shall also be deemed the seal of the Authority.

ARTICLE V

DEPOSITORIES Section 1. Depositories. The Authority shall from time to time provide by resolution or resolutions for the establishment of depositories for funds of the Authority. Section 2. Execution of Notes, Drafts, and Checks. All drafts, checks, etc. drawn against accounts of the Authority shall be signed by the Chairman together with the Treasurer or Secretary.

48

ARTICLE VI

AMENDMENTS Section 1. Amendments. The by-laws of the Authority shall be subject to alteration, amendment or repeal, and new by-laws not inconsistent with any laws of the State of Georgia creating this Authority may be made by affirmative vote of a majority of the directors then holding office at any regular or special meeting of the directors. Proposed amendments shall be submitted in writing to all directors of the Authority ten (10) days prior to the meeting at which such amendment will be considered. If such written proposed amendment is submitted by mail, it shall be deemed to be delivered when deposited in the United States mail properly addressed and with sufficient postage thereon.

49

Step 8. Pursuant to OCGA 36-42-7 (d) Except for a director who is a member of the governing body of

the city, each authority member shall attend and complete at least eight hours of training on

downtown development and redevelopment programs within the first 12 months of an authority

member’s appointment. Authority member’s appointed prior to January 1, 1992 shall be exempt

unless reappointed for an additional term.

50

■ ■ ■

■ ■ ■

STANDARDS

1

Has broad-based community support for the commercial district revitalization process with active participation from both the public and private sectors

2

Has developed vision and mission statements relevant to community conditions and to the local Main Street program's organizational stage

3

Has an annual comprehensive Main Street work plan based on the 4-Point Approach™

4 Possesses an historic preservation ethic.

5

Has an active board of directors, committees and volunteers utilizing the 4-Point Approach™

6 Has an operating budget with income from a variety of sources

7 Has a paid professional program manager

8

Participates in or provides on-going training for staff, board, government officials and volunteers.

9

Reports key statistics in a timely manner and is in good standing with critical state mandates.

10 Is a current member of the National Main Street Center.

All Classic Main Street accredited cities are required to submit supporting documentation annually to the Office of Downtown Development regarding the 10 National Standards.

Based upon the results of the annual Assessment Metrics Report the Office of Downtown Development makes recommendations to the National Main Street Center as to the eligibility of each Main Street Program.

Georgia Main Street Program Annual Assessment Metrics

DDA Resource Manual: Financing & Funding Georgia Cities Foundation Revolving Loan Fund Program The Georgia Cities Foundation (GCF), established in 1999, is a non-profit subsidiary of the Georgia Municipal Association (GMA). The purpose of the Foundation is to assist cities in their efforts to revitalize and enhance downtown areas. Applications for the Georgia Cities Foundation Revolving Loan Fund program may be submitted at any time. Successful applications for downtown projects should encourage spin-off development, add jobs, promote downtown housing, or add to the cultural enrichment of the community. Each application must also undergo credit underwriting. Eligible Projects • Real estate acquisition • Building rehabilitation • New construction • Green space and parks

Ineligible Uses of Funds • Operating expenses and administration • Local revolving loan funds • Public infrastructure projects • Streetscapes • Facade projects

Loan Amounts and Terms The Foundation presently provides loans up to $250,000. The interest rate is below market rate, and the repayment period is normally 10 years, not to exceed 15 years. Financing Structure GCF recommends a 50-40-10 financing structure for projects, with 50% of the project cost being financed through conventional lenders, 40% being financed through low interest loan programs (GCF and/or DD RLF), and 10% being the developer's equity participation. If approved, GCF loans are provided to a city’s downtown development authority (DDA), with the DDA providing a simultaneous loan to the project’s developer/sub-recipient. Loan Structure GCF loans may be structured as follows:

A loan to a DDA or similar entity A loan to a DDA with:

o An intergovernmental agreement with the city. o A lease or loan to a private owner/developer. o An intergovernmental agreement with the city, and a sublease to a private

owner/developer. Eligibility Considerations

Local support Approach to downtown development Project budget and timeframe for

completion

Matching funds Underwriting review

For Additional Information For additional information about the revolving loan fund program, contact Perry Hiott at (678) 686-6207 or Alan Dickerson at (678) 686-6213 or visit the Foundation’s website at: www.georgiacitiesfoundation.org.

56

Downtown Development Revolving Loan Fund General Description The purpose of the Downtown Development Revolving Loan Fund (DD RLF) is to assist cities, counties and development authorities in their efforts to revitalize and enhance downtown areas by providing below-market-rate financing to fund capital projects in core historic downtown areas and adjacent historic neighborhoods where DD RLF will spur commercial redevelopment. Eligible Applicants

Eligible applicants under this program are municipalities with a population of 100,000 or less, counties with a population of 100,000 or less proposing projects in a core historic commercial area, and development authorities proposing projects in a core historic commercial area in municipalities or counties with a population of 100,000 or less. The ultimate user of funds may be a private business or a public entity such as a city or development authority.

If the applicant is not the municipality in which the proposed activities will take place, then the application must include a resolution of support and commitment of cooperation from the applicable local government.

Eligible applicants must have an existing downtown commercial area that meets two or more of the following characteristics: (a) A significant number of commercial structures fifty (50) years old or older; (b) Empty storefronts or documentation of an immediate threat to a downtown’s commercial viability; (c) A feasibility/market analysis identifying the businesses/activities which can be supported in the downtown area and a plan for attracting or retaining such businesses/activities; (d) A downtown master plan and/or strategic plan designed to guide public or private investment; (e) Commitment(s) for private/public funding to support downtown development activities (from banks, downtown development authorities, local businesses, other government agencies, etc.) enhancing, directly or indirectly the activity(s) to be financed with the Department’s loan.

Eligible Activities Applicants must demonstrate that they have a viable downtown development project and clearly identify the proposed uses of the loan proceeds. Once approved, funds may be used for such activities as: real estate acquisition, development, redevelopment, and new construction; rehabilitation of public and private infrastructure and facilities; purchase of equipment and other assets (on a limited basis). Assistance Amounts The maximum loan is $250,000 per project. At its discretion, the Department may decide to loan an amount less than the amount requested in an application. Loan Terms: Interest rate is below-market. Repayment period is typically ten years with a fifteen-year amortization. Security is usually project collateral and personal guarantees. Application Deadlines Applications will be accepted throughout the year and as loan funds are available to the Department. For further information about the Downtown Development Revolving Loan Fund, contact Susan Brown at (404) 327-6841 or visit: www.dca.state.ga.us/economic/financing/programs/ddrlf.asp.

Georgia Cities Foundation Green Communities Fund The Green Communities Fund is a revolving loan program offered by the Georgia Cities Foundation. Made possible through a grant from the Georgia Environmental Facilities Authority (GEFA), the Green Communities Fund provides low interest financing to business and/or property owners for energy efficient improvements to their qualifying commercial properties. The Green Communities Fund program targets commercial buildings located inside the city limits of any city in the state of Georgia. These low interest loans range in loan size from $10,000 to $250,000. With energy efficiency as the objective of the program, the loans will be used for energy efficient improvements to existing businesses, renovations of existing buildings, as well as for improvements to planned new construction. Loan Structure Maximum Loan Amount: Varied, depending on the following project costs:

Energy Project Cost $12,000 to $50,000 $50,001 - $100,000 $100,001 - $500,000

Financing Structure (GCF2 – Borrower)

90% - 10% 80% - 20% 75% - 25%

Maximum GCF2 Loan Amount Up to $45,000 Up to $80,000 Up to $250,000

Minimum Borrower Equity Participation

10% 10% 10%

Loan Term 5 years 5 years 10 years, with 15 year amortization

Minimum Loan Amount: $10,000 Interest Rate: Below market Green Communities Fund Application Process - Energy Audit As a prerequisite for a Green Communities Fund Loan, a comprehensive energy audit of the existing building or an energy model for a new building must be conducted. The audit will identify ways to improve the energy efficiency of the building. Additionally, the audit will predict the best return on investment for each improvement. The audit will identify a list of applicable improvements that may be financed through the Green Communities Fund loan program. The various energy savings investments may include, but are not limited to, the following list: Examples of Eligible Improvements: Insulation Lighting Retrofits Reflective Roofing Weather & Duct Sealing High Efficiency Appliances

High Efficiency HVAC Occupancy Sensors Solar Thermal Hot Water Heaters Tankless Water Heaters

Energy Audit Rebates The Green Communities Fund offers a rebate program towards approved energy audits that are conducted as a part of our loan program. Once an applicant has been approved for and closes on a Green Communities Fund loan, the applicant is eligible for a rebate of 80% of the energy audit cost up to 10% of the total loan amount. For loan amounts of less than $25,000, the Green Communities Fund will provide a rebate for approved energy audit expenses above the first $500 up to $2,500. All energy audits and

86

related expenses must be pre-approved by the Georgia Cities Foundation prior to completion of the loan application process to be eligible for the rebate program. Minimum Energy Improvements To be eligible for the Green Communities Fund loan the borrower must either meet a minimum of a 20% energy savings or have a combined return on investment for the work performed of 10 years or better. The energy audit will provide the ability to determine which combination of improvements will meet these standards. Additionally, the Green Communities Fund can finance renewable energy projects, such as solar, once the building has a building that is 20% more energy efficient. Historic Buildings Loan applications for energy efficient improvements to historic buildings should not negatively impact the character of historic buildings. Additionally, the applicant must show that the desired improvements are compliant with the local Historic Preservation Commission (where present) and meets all local design guidelines. For additional information about the revolving loan fund program, contact Chris Higdon at (678) 651-1018. Additional information can be found on the Georgia Cities Foundation’s website at www.georgiacitiesfoundation.org. Redevelopment Fund Program The Redevelopment Fund (RDF), a set-aside of the State’s non-entitlement CDBG program, provides flexible financial assistance including grants and loans to local governments to assist them in implementing challenging economic and community development projects that cannot be undertaken with existing public sector grant and loan programs. The Redevelopment Fund will reward locally initiated public / private partnerships by providing financing to leverage private sector investments in commercial, downtown, and industrial redevelopment and revitalization projects that need Redevelopment Fund investment to proceed. While all CDBG-funded projects that create jobs must meet applicable low- and moderate-income criteria, the Redevelopment Fund will allow projects to be approved using an “eliminating slum and blight” national objective. The Redevelopment Fund may support and extend DCA’s existing CDBG programs in order to allow redevelopment projects with “challenging economics” to be made competitive for DCA, private, and other public funding investments. Eligible Applicants Units of general-purpose local government classified as "non-entitlement" by the U.S. Department of Housing and Urban Development. Excluded are entitlement cities, metropolitan cities, urban counties and other units of government eligible to participate in HUD's urban county program. Available Financing The maximum amount of assistance that can be applied for is $500,000. Projects involving direct loans are underwritten and collateralized using standard commercial lending procedures and documents. Performance criteria for job-creation and investment are included in the RDF loan agreement. Equity contributions and loan-to-value ratios are set case-by-case. Loans must be fully collateralized. The interest rate and term of an RDF loan are determined on a case-by-case basis. The average rate is currently 3% and terms of RDF loans range between 4 and 15 years depending on the assets to be financed. For further information on the Redevelopment Fund Program, contact Nyanza Duplessis at (404) 679-0668 or visit: www.dca.state.ga.us/communities/downtowndevelopment/programs/redevfund.asp.

87

Employment Incentive Program The Employment Incentive Program (EIP) is a financing program that may be used in conjunction with traditional private financing to carry out economic development projects which will result in employment of low and moderate income persons. Many types of projects can be financed with EIP funding. However, projects creating opportunities for low and moderate income persons to advance themselves by obtaining employment, greater job security, better working conditions, job training, enhancement of workplace skills and advancement opportunities receive the greatest consideration. Eligible Uses

Public water and sewer systems, distribution and/or collection lines, wastewater treatment projects, rail spurs, and various other types of public facilities.

Financing for fixed assets including: land, new facilities, rehabilitation of existing facilities, machinery, equipment, etc.

Ineligible Uses

Speculative projects Refinancing

Working capital Projects which do not need EIP assistance

Eligible applicants for the EIP are general purpose "non-entitlement" local governments with activities encompassing two broad areas:

1. grants to local governments for the installation of public infrastructure which will support an eligible economic development project; or

2. grants to local governments who may then loan the EIP proceeds to a sub-recipient industry to finance various fixed assets which will be used in an eligible economic development project.

EIP loan repayments may be used to establish or recapitalize a local revolving loan fund (RLF) to be used in other eligible projects. Each EIP project must create or retain employment principally for low and moderate income persons. For further information on the Employment Incentive Program, contact: Joanie Perry at (404) 679-3173 or visit: www.dca.state.ga.us/economic/financing/programs/employmentincentive.asp Appalachian Regional Commission Revolving Loan Fund The Appalachian Regional Commission (ARC) funds programs in 37 north Georgia counties: Banks, Barrow, Bartow, Carroll, Catoosa, Chattooga, Cherokee, Dade, Dawson, Douglas, Elbert, Fannin, Floyd, Forsyth, Franklin, Gilmer, Gordon, Gwinnett, Habersham, Hall, Haralson, Hart, Heard, Jackson, Lumpkin, Madison, Murray, Paulding, Pickens, Polk, Rabun, Stephens, Towns, Union, Walker, White, and Whitfield counties. Businesses Qualified to Receive ARC RLF Funds Only private, for-profit businesses are eligible to receive ARC RLF loan funds; these include new, existing, or expanding enterprises. Banks, savings and loan institutions, and finance companies are not eligible for the program. Developers may receive ARC RLF funds if their tenants are private, for-profit businesses that are willing to commit to job-creation or retention and to other program requirements. Eligible Uses for Loan Proceeds

Working capital Building acquisition New construction/rehabilitation

Equipment purchase & installation Land acquisition

88

Please note that all applicable local, state, and federal laws and guidelines must be met before any activity is considered eligible and that all activities must produce positive results (including job creation or retention) for the area as well as for the business receiving financing. Ineligible Uses of the Loan Fund

Assistance to relocating businesses Refinancing Displacement of private funds (i.e., projects must demonstrate need for favorable financing) Speculative projects

Loan Amounts and Loan Terms and Conditions An applicant may apply for funds from the ARC RLF as many times as necessary as long as the RLF does not have a loan exposure greater than $200,000 for any one business. Total project costs may be any amount as long as the ARC RLF-financed portion of the project does not exceed 50%. Interest rates are usually two to four points below the prime rate. Loan terms normally do not exceed 5 years for working capital and 15 years for fixed assets. Interest rates may be fixed or variable, but are normally fixed. Businesses must provide at least ten percent equity for their projects. Businesses must create or retain one private sector job for every $20,000 of RLF loan proceeds. Loan Requirements and Application Steps

Meet with DCA to discuss application requirements Obtain the approval of the local development authority to act as the lender of the RLF funds

(DCA can assist in obtaining development authority review of a proposed project) Complete the application and all certifications Application review by DCA’s loan committee

Important Past investments do not usually count toward the 50% match that must be arranged by the borrower. Beginning the project prior to the date of the loan committee meeting may demonstrate that favorable financing for the project is not needed. (Note: DCA’s loan committee may reject an application for any reasonable cause. Applications will normally be approved or rejected within 30 days after a completed application has been submitted.) For further information on the Appalachian Regional Commission RLC, contact Russell Morrison at (404) 679-4825 or visit: http://www.dca.ga.gov/economic/financing/programs/appregion.asp Community Development Block Grant Program Annual Competition Economic Development Program The primary objective of the economic development (ED) component of the Community Development Block Grant (CDBG) program is the expansion of economic opportunities in cities and counties, principally for persons of low-and-moderate income. This is accomplished by funding viable projects which cannot take place without CDBG assistance. Applicants should note that any project must create or retain jobs for low- and moderate income persons. Eligible Applicants Units of general-purpose local government (cities or counties) that do not participate in HUD's CDBG Entitlement or Urban County program.

89

Eligible Projects CDBG annual competition grants may be loaned to businesses or used to build public infrastructure that make business projects possible and create employment for low- and moderate-income persons. Generally eligible are: 1. Projects carried out by public or private nonprofit entities including:

(a) acquisition of real property; (b) acquisition, construction or rehabilitation of public facilities, site improvements and utilities.

2. Loans to private businesses for fixed asset financing when assistance is necessary and appropriate to carry out an economic development project. Grant and Loan Conditions Loans are usually made at below-market rates with favorable terms (but no more favorable than the minimum necessary to make the project feasible). Payback is not required where CDBG funds are used for public infrastructure projects, but the applicant community must present evidence that it cannot finance the project without assistance. Private businesses which are the primary beneficiary under a public facility project are required to warrant their commitments to invest and create jobs with an irrevocable letter of credit. Maximum Funds Available The amount available for the Annual Competition depends on the funding the State receives annually from the Department of Housing and Urban Development (HUD). For Fiscal Year 2010, the total State CDBG funding level is approximately $40 million with approximately $30 million available for the annual competition The amount used for economic development projects will depend upon the number and quality of the applications received and upon the demand for funds in the areas of housing and public facilities. The maximum CDBG annual competition amount that may be applied for is $500,000. Deadline Applications for the CDBG annual competition program usually must be submitted during the second quarter of each calendar year. The final deadline is announced each year by DCA, and only one competition is held each year. Awards are generally announced 90 days after the receipt of applications. Program Requirements

Funding is very competitive; typically one in two applicants is successful. To be competitive as an ED project, CDBG dollars must be leveraged at a minimum of one private

dollar to every CDBG dollar; leverage ratios of 2 to 1 are not uncommon. Job creation is a major competitive factor. Awards are contingent upon firm commitments by other financial participants. Personal guarantees and adequate collateral are required.

For further information on the Employment Incentive Program, contact: Joanie Perry at (404) 679-3173 or visit: www.dca.state.ga.us/communities/CDBG/programs/CDBGregular.asp. Transportation Equity Act for the 21st Century (TEA-21) The Transportation Enhancement Program was established by the Intermodal Surface Transportation Efficiency Act of 1991, commonly referred to as “ISTEA.” The objective of the program as established by Congress is to enrich the traveling experience of the highway user through enhancements to our transportation system. Transportation Enhancement (TE) are projects that use funding from ISTEA to enhance the transportation experience with a focus on cultural, natural, and scenic areas. Federal Highway

90

Administration guidance has stated that projects must demonstrate a strong linkage to the intermodal transportation system. The Current Transportation Enhancement Program— On June 9, 1998, ISTEA was continued by passage of the Transportation Equity Act for the 21st Century (TEA-21). TEA-21 provides for a significant increase in funding for enhancements over the ISTEA program. The ISTEA legislation identified ten categories of projects. For ease in classification, the State of Georgia has combined these into four main categories. These categories include provisions for:

Multi-uses Facilities: This may include improvements such as bicycle and pedestrian facilities and safety and educational activities, and other non-motorized uses and perseveration of abandoned railway corridors.

Historic Resources: This may include improvements such as acquisition of historic sites, historic

preservation, rehabilitation of historic structures, transportation museums, and mitigation of vehicle caused wildlife mortality.

Scenic Preservation: This may include improvements such as acquisition of scenic easement and

scenic sites, scenic byway programs, and tourist and welcome center facilities for scenic or historic highways.

TEA-21 has expanded these categories to include these additional activities:

- Transportation museums - Safety and educational activities for pedestrians and cyclists - Tourist and welcome center facilities specifically included under “scenic or historic

highway” activities - Projects to reduce vehicle-caused wildlife mortality while maintaining habitat

connectivity for threatened or endangered species. While any organization may submit a TEA application, all TEA applications must identify sponsorship by a governmental entity, such as a city, county government or State agency. (This is a 80/20 match.) For more information, please contact the Georgia Department of Transportation at (404) 657-6914 or visit: www.dot.state.ga.us. OneGeorgia Authority Grant & Loan Programs Utilizing one-third of Georgia’s share of the Tobacco Master Settlement Agreement to assist the state’s most economically challenged areas, the OneGeorgia Authority anticipates spending $1.6 billion on investments in Georgia’s rural counties over the 25-year term of the settlement. The goal of the OneGeorgia Authority is to offer financial partnerships with rural communities to create strong economies in all business sectors, allowing new and existing industries, both large and small, to flourish. To learn more about the financing programs offered by the OneGeorgia Authority, call the OneGeorgia office at (478) 274-7734 or visit: http://www.onegeorgia.org/.

91

USDA Rural Development - Georgia The United States Department of Agriculture (USDA) Rural Development provides assistance to rural communities through loan and grant programs designed to improve the quality of life and stimulate the economy. For more information on loan and grant programs available, contact USDA Rural Development at (706) 546-2165 or visit: www.rurdev.usda.gov/ga/index.htm. Tax Allocation Districts Georgia law provides specific powers to enable local governments to embark on projects that will foster public/private partnerships and spur economic growth. Tax Allocation Districts (TADs) are one of the legislative tools available to support cities’ community and economic development ventures. What are TADs and how do they work? Georgia’s Redevelopment Powers Law, adopted by the General Assembly in 1985, gave local governments the authority to sell bonds to finance infrastructure and other redevelopment costs within a specifically defined area (a TAD). The bonds are secured by a “tax allocation increment,” which is the increase in property tax revenues resulting from the redevelopment activities taking place within the tax allocation district. Tax increment financing allows cities to charge the costs of constructing public facilities and infrastructure to be charged directly to the businesses that use them rather than the public at large. In return, the businesses benefit from the construction of facilities that might not otherwise be available to them. When using a TAD, a local government designates a specific geographic area that has the potential for redevelopment, but which suffers from blight or other “economically or socially distressed” conditions. As public improvements and private development take place in the area, the taxable value of property in the TAD increases. The local government collects the total revenues, putting the increase in revenues as a result of new development into a special fund to pay off the bonds that financed the public improvements, while the remainder goes back into the city’s general fund. The TAD is dissolved when the bonds have been retired and any other public financing has been repaid. What is required to create a TAD? Local legislation is required to authorize the local government to create a TAD. The voters within the jurisdiction must approve use of the TAD by a majority vote in a referendum. The city is required to form a Redevelopment Agency with the responsibility of carrying out the redevelopment powers (usually an existing local Authority is designated to serve as the Redevelopment Agency). The local government must also complete and formally approve a Redevelopment Plan that clearly defines the TAD boundaries; outlines the scope of the economic development project and project costs; estimates the frozen tax base and tax increment amounts; and estimates proceeds that would be realized from a bond referendum. Furthermore, since the local government is authorized to collect incremental revenues from property taxes, SPLOST, LOST, ESPLOST and special district taxes, each tax jurisdiction impacted by the TAD must approve of the plan and agree to commit their incremental revenues to the TAD. (The local government can proceed with a TAD without cooperation from other tax jurisdictions, but it may not use the tax increments from those jurisdictions without their formal cooperation and approval.) What are some of the advantages and disadvantages of TADs? TADs offer a flexible alternative to financing economic development without the need to use general funds, LOST or SPLOST revenues or to raise taxes. While there can be significant benefits to using

92

TADs, local governments should also be aware of the risks associated with this tool, including the possibility that the TAD area may not generate the level of revenues that the city originally estimated. However, if used carefully, TADs can be an excellent way to finance economic development. Do TADs actually take money away from schools? No. The schools continue to get the same base amount of revenue from the property. The tax increment (i.e. the additional property tax resulting from the redevelopment of the property) is used to pay for improvements within the TAD. If not for the redevelopment of the property, the additional revenue would not be available. What are examples of cities that have successfully used TADs? TADs are permitted in 49 of the 50 United States. Although the Georgia legislature passed the Redevelopment Powers Law in 1985, tax increment financing was not used for the first time until Atlanta began to use it in 1992. Presently, nearly 30 cities in Georgia are currently using or have approved TADs. Numerous other cities across the state are considering using tax increment financing for various projects. Atlantic Station in Atlanta is the preeminent example of a successful TAD in Georgia. Previously a brownfield site, the project includes 12 million square-feet of retail, office, residential and hotel space as well as 11 acres of public parks. In addition to Atlantic Station, Atlanta has approved the use of TADs as redevelopment tools for nine other projects. Examples of other cities using TADs include Marietta, East Point, Gainesville, Smyrna, Acworth and Albany. Voters also approved the use of a TAD in the cities of Savannah, Braselton, Macon and Augusta. Where can I find more information about TADs? The Georgia Redevelopment Powers Act (OCGA 36-44-1) contains the detailed requirements for implementing TADs. Georgia State University, the Andrew Young School of Policy Studies, has also developed a publication that outlines the use of TADs entitled, “Georgia’s Redevelopment Powers Law: A Policy Guide to the Evaluation and Use of TADs.” In October, 2007, the Livable Communities Coalition released the findings of its Survey and Analysis of TADs in Georgia. You can also find more information about TADs and other economic development tools by contacting the Georgia Department of Community Affairs’ Office of Planning and Quality Growth at (404) 679-5279. Local governments interested in using TADs should consult with a local attorney and may gain valuable information by contacting other local governments in Georgia that have had success with this financing tool. Business Improvement Districts and Community Improvement Districts What is a Business Improvement District? A Business Improvement District (BID) is a special taxing district designed to promote the economic development of a city's commercial areas. Once established, a BID may provide such services as: advertising, promotion, sanitation, security and business recruitment and development. A city can create a BID upon adoption of a plan for the proposed district. The plan cannot be adopted unless there is a written petition signed and acknowledged by either:

a) At least 51 percent of the municipal taxpayers of the district proposed for creation as a BID (or for the extension of the district); or b) Municipal taxpayers owning at least 51% of the taxable property subject to ad valorem real and personal property taxation in the district.

93

Such petition must be accompanied by a proposed plan for the district, with such plan including a proposed budget, a formula for imposing assessments on the taxpayers within the district and design and rehabilitation districts, if desired. Once a BID is adopted, the city may levy annually a millage on real and personal property within the district. Once these taxes are collected, the city may then provide the supplemental services included in the district's plan, or the city may contract with a non-profit corporation or a downtown development authority to provide all or part of these services. Under Georgia law, the duration of a BID may not be less than five years nor more than 10 years. What is a Community Improvement District? Community Improvement Districts (CIDs) allow a city or a county to create special tax districts to pay for certain governmental services and facilities within the affected district. CIDs supplement, not replace, city and county infrastructure improvement programs by providing a means to pay for facilities that may be specially required in densely developed areas such as those around large shopping malls. Any law creating or providing for the creation of a community improvement district shall provide that the creation of the community improvement district shall be conditioned upon: (1) The adoption of a resolution consenting to the creation of the community improvement district by:

(A) The governing authority of the county if the community improvement district is located wholly within the unincorporated area of a county; (B) The governing authority of the municipality if the community improvement district is located wholly within the incorporated area of a municipality; or (C) The governing authorities of the county and the municipality if the community improvement district is located partially within the unincorporated area of a county and partially within the incorporated area of a municipality; and

(2) Written consent to the creation of the community improvement district by: (A) A majority of the owners of real property within the community improvement district which will be subject to taxes, fees, and assessments levied by the administrative body of the community improvement district; and (B) The owners of real property within the community improvement district which constitutes at least 75 percent by value of all real property within the community improvement district which will be subject to taxes, fees and assessments levied by the administrative body of the community improvement district; and for this purpose value shall be determined by the most recent approved county ad valorem tax digest.

The General Assembly by general law may regulate, restrict and limit the creation of community improvement districts and the exercise of the powers of administrative bodies of community improvement districts. How do BIDs differ from CIDs? While there are numerous differences between BIDs and CIDs, several of the major ones are provided below:

Generally, BIDs are designed to provide funding for supplemental management and promotion services in commercial areas, especially in older commercial districts such as downtowns. CIDs, generally, are designed to provide funding for supplemental infrastructure in a commercial area, especially in areas anchored by large office or retail developments.

BIDs can be created only by cities, while CIDs can be created for cities and/or counties.

94

BIDS are created by passage of an ordinance, while CIDs must be created initially by the General Assembly.

A petition to create a BID must include both real and personal property owners, while a petition to create a CID must include only real property owners.

A petition to create a BID may be supported by either 51 percent of owners of taxable real and personal property or owners representing 51 percent of the value of such property. A petition to create a CID must be supported by both a majority of the owners of real property in the CID that will be taxed as part of the bill and owners representing 75 percent of the value of real property in the CID.

For further information see Official Code of Georgia Annotated and the advice of local attorney.

95

ETHICS CONFLICTS OF INTEREST

OPEN MEETINGS AND OPEN RECORDS

I. Introduction

II. Ethics

A. How do you define what is ethical? Ethics, like beauty, is often found in the eye of the beholder. It is therefore important to remember that in most cases appearance is more important than intent. The State of Georgia has provided some guidelines in OCGA Sec. 45-10-1 (Appendix A) and OCGA Sec 45-10-3 (Appendix B). These provide a Code of Ethics for those in government generally and specifically as members of boards and authorities. The Codes are generally designed to prohibit conduct on the part of public officials designed to profit the official through the use of their position or special knowledge or influence they may acquire by virtue of such position. They also carry with them an affirmative obligation on the part of the public official to act to prohibit such conduct on the part of others. In other words a public official cannot absolve themselves by simply choosing to ignore the unethical conduct of fellow officials.

B. Who sets the standards? As can be seen by a review of these laws the guidelines are very broad and provide little in the way of specific direction regarding individual factual situations. The ultimate decision as to whether or not a particular set of facts constitutes a violation of the Code of Ethics rest with the Governor, though a hearing procedure, set out in OCGA Sec. 45-10-4 (Appendix C). Such hearings are generally conducted by a hearing officer appointed by the Governor, pursuant to the “Georgia Administrative Procedures Act”. The hearing officer is responsible for making finding and recommendations to the Governor.

C. Establishing a policy for your organization. Copies of the State’s Code of Ethics are available through the Secretary of State’s office and provide a useful guideline in formulating a policy for your organization. The law does not require that organizations adopt a Code of Ethic, though each authority is bound by the provisions of OCGA 45-10-3, however the adoption a specific policy serves the purpose of both bringing attention to the issue among the members and providing an opportunity to address factual circumstances that may be common with your organization.

96

III. Conflicts of Interest

A. What constitutes a conflict of interest? While State law provides some very precise guidelines for what constitutes a conflict of interest for public officials, the definition of a “public official” set forth in OCGA Sec. 45-10-20 (Appendix D) does not include members of local authorities. However some guidance can be found in OCGA Sec. 45-10-21 (Appendix E), wherein it describes a conflict of interest as “a conflict between the private interests of an elected official or a government employee and his duties as such.” The Attorney General in Georgia has likewise defined a conflict of interest in a public official as being “in a position in which his interest or the interest of private parties he represents may conflict with the public interest and he has the opportunity and temptation to sacrifice the public interests to his interests or those of third parties.” Attorney General’s Opinion 82-82, p.171.

B. How should a conflict be dealt with? Conflicts of interest may be resolved as simply as the party having the conflict or potential conflict abstaining from participation in any decision involving the issue giving rise to the conflict. Other times conflicts can be resolved only by the conflicted party giving up one of the interests that give rise to the conflict. Assume the following facts:

Mr. Smith is a member of the county Board of Commissioners. He is also a minority stockholder, member of the Board of Directors, and attorney for a local bank. His partner, Mr. Brown, is a member of an advisory board and attorney for another local bank. The county deposits funds four local banks on a rotating basis and deposits excess funds in the bank offering the highest deposit rate or return. Is there a conflict of interest with Mr. Smith? What about Mr. Brown? Is the conflict resolved having the banks bid on the deposits? How can the conflict be resolved? Mr. Jones and Mr. Black are members of the local Development Authority. Mr. Jones is the Chairman and Mr. Black is the Vice Chairman of the Authority. Mr. Jones is Vice Chairman of the Board of Directors of a local bank, and owns 9% of the outstanding bank stock. Mr. Black is Chairman of the Board of the local bank and owns 9.5% of the bank stock. The Authority has over a period of time had at least nine loans with this bank. All but one of the loans were obtained with seeking bids for the loans. Do Mr. Jones and Mr. Black have a conflict of interest? Can the conflict be resolved without Mr. Jones and Mr. Black resigning from the Authority?

C. What is a safe harbor? OCGA Sec. 36-62A-1 (Appendix F) provides what is commonly referred to as a “safe harbor”, or a means of conduction business in the face of a conflict

97

or potential conflict that protects the public interest without requiring the conflicted person to resign from the Authority. It is applicable to Directors of Downtown Development Authorities created under the state general enabling legislation, or of any authority created by or pursuant to a local constitutional amendment. The provision requires (1) disclosure, (2) absence, and (3) abstention.

D. Adopting a local policy As noted above the safe harbor provisions are applicable only to those Authorities created under the specified legislation. However, the adoption of a policy by the local Board of the Authority, incorporating such or similar provisions, may well afford similar protection to the Board and its members, if followed. An example of such a policy is attached as Appendix G.

IV. Open Meetings

A. Who is subject to the Act? The term “Agency” as used in the Act is defined as “every state department, agency, board, bureau, commission, public corporation, or authority.” (Note: there is no specific definition in Georgia law of a “public corporation”) OCGA Sec. 50-14-1 (Appendix H). It further includes any nonprofit organization which receives more than one third of its funds from any agency as defined in the act.

B. What constitutes a meeting? A meeting is defined in the Act as “the gathering of a quorum of the members of the governing body of an agency or any committee of its members created by the governing body……at which any public matter, official business, or policy of the agency is to be discussed or presented or at which official action is to be taken, or, in the case of a committee, recommendations on any public matter, official business, or policy…..are to be formulated, presented or discussed.” OCGA Sec. 50-14-1

C. What am I required to do? 1. Make the meeting accessible to the public. 2. Establish a time and place for regular meetings and make such

information available to the public by posting. 3. Give notice of any change or other meetings at least 24 hours in advance

by posting and giving written or oral notice to the legal organ or other broadcast media.

4. Provide an agenda in advance of the meeting. 5. Provide a summary of attendance and action taken with two business

days.

98

D. What are the exceptions? For most authorities the applicable exclusions to the Open Meetings Act are as follows: 1. Meetings to discuss the future acquisition of real estate – (Note that this

covers only the purchase and not the sale of real estate) notice must still be given and minutes taken but disclosure is not required until the transaction is closed or otherwise concluded.

2. Meetings to discuss the appointment, employment, compensation, hiring disciplinary action or dismissal of a public officer or employee. (Note this does not include meetings to receive evidence in such matters, which are open, and the vote on any such matter must be made in an open meeting and recorded.) OCGA Sec. 50-14-3 (Appendix I)

3. Meetings with the Authority’s attorney to discuss pending or potential claims or litigation, or to discuss settlement of an administrative, judicial or other proceeding. (OCGA Sec. 50-14-2(1))

4. Other matters, under the Act are excluded but are generally not applicable to Authorities.

E. Procedures for closing a meeting

There are certain procedures, which should be followed, as proscribed by OCGA Sec. 50-14-4 (Appendix J) for the conduct of a closed meeting: 1. The meeting should be scheduled and notice provided as with any open

meeting. 2. The meeting should begin as an open meeting and not be closed until the

reason for conducting a closed meeting are entered onto the minutes of the body and a vote to enter into a closed session is approved by a majority of a quorum present.

3. Matters not excluded from the Act should not be discussed in the closed session, but only discussed once the meeting is reopened to the public.

4. At the conclusion of any closed meeting the chairperson should execute an affidavit, to be placed in the minutes, attesting to the subject matter of the meeting was devoted only to the relevant exception identified therein.

F. What if these procedures are not followed?

If you knowingly and willfully conduct or participate in a meeting in violation of the Act you may be charged with a misdemeanor criminal offense and punished by a fine of up to $500.00. OCGA Sec.50-14-6 (Appendix K)

V. Open Records

A. Whose records are subject to the Act? Any “agency” as that term is defined in OCGA Sec. 50-14-1, meaning in essence any body that is covered by the Open Meetings Act. OCGA Sec. 50-18-70 (Appendix L)

99

B. Which records are subject to the Act? All documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar materials prepared, maintained or received in the course of the operation of a public office or agency. This is true whether the materials are maintained by the public office or agency, or by a private party on behalf of the public entity.

C. Are there any exceptions? While there are numerous exceptions to the Act contained in OCGA Sec. 50-18-72 (Appendix O), only a few are generally applicable to the kinds of records kept by an authority: 1. Records specifically required to be kept confidential by Federal law; 2. Medical or similar personal privacy records; 3. Records of confidential evaluations or examinations in connection with

the appointment or hiring of a public officer or employee: 4. Records related to the investigation of complaints against any public

officer or employee, or the suspension or firing of any public officer or employee until ten days after such is presented to the agency or the matter is otherwise terminated;

5. Appraisals, engineering reports or feasibility studies regarding the acquisition of real estate until such time as the transaction is completed or otherwise terminated;

6. Records identifying any applicant applying for employment or appointment as head of such agency, except for the top three candidates within fourteen days of any vote on the selection;

7. Any individuals social security number, insurance or medical records, or; 8. Any trade secrets or proprietary information required to be submitted to

the agency.

D. What should I do when I receive an Open Records request? Most requests can be handled as a routine matter, if the authority has a procedure in place to deal with such, and the staff is educated as to the following steps: 1. Log the request in some manner (time/date stamp, logbook, handwritten

note), you have only three days to respond to the request. 2. Determine if the requested records exist and are in the possession of the

authority. [Note: you are not required to create or prepare documents not already in existence, OCGA Sec. 50-18-70 (d).]

3. Determine whether or not the records are subject to an exemption. When in doubt consult with your attorney.

4. Determine the estimated cost of providing the records, including [OCGA Sec. 50-18-71 (Appendix M)]: a. Fees for certified copies where provided for by law;

100

b. Copying charges ($.25/page); c. A reasonable charge for the time of the lowest paid full time employee

capable of performing the search and retrieval, but not for the first quarter hour.

5. Provide an estimate of the costs above to the party making the request and require payment as a condition of fulfilling the request [OCGA Sec. 50-18-71.2 (Appendix N)], or;

6. Notify the person making the request that the records do not exist, are not in the possession of the authority, or are exempt. Any denial based on exemption must provide a designation of the specific legal authority for exemption.

E. What if the authority fails to respond or denies access to the records without legal justification? There are both civil and criminal penalties for failure to comply with the terms of the Act. 1. Civil action and provided for in OCGA Sec. 50-18-73 (Appendix P)

allows anyone to bring an action in the Superior Court to enforce compliance with the Act and to award attorneys fees and cost to the winning party.

2. OCGA Sec. 50-18-74 (Appendix Q) provides criminal penalties of up to a $100 fine for failure to comply.

101

APPENDIX A

CODE OF GEORGIA TITLE 45. PUBLIC OFFICERS AND EMPLOYEES

CHAPTER 10. CODES OF ETHICS AND CONFLICTS OF INTEREST

ARTICLE 1. CODES OF ETHICS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

45-10-1 Establishment and text of code of ethics for government service generally. There is established for a nd within the state and for and in all governm ents therein a code of ethics for government service which shall read as follows: CODE OF ETHICS FOR GOVERNMENT SERVICE Any person in government service should: I. Put loyalty to the highest m oral principles and to country above loyalty to persons, party, or government department. II. Uphold the Constitution, laws, and le gal regulations of the United States and the State of Georgia and of all governments therein and never be a party to their evasion. III. Give a full day's labor for a full day's pay and give to the performance of his duties his earnest effort and best thought. IV. Seek to find and e mploy more e fficient and econom ical ways of getting tasks accomplished. V. Never discrim inate unfairly by the dispensing of special fa vors or privileges to anyone, whether for remuneration or not, and never accept, for hi mself or his fa mily, favors or benefits under circum stances which might be construed by reasonable persons as influencing the performance of his governmental duties. VI. Make no private prom ises of any kind binding upon the duties of office, since a government employee has no private word which can be binding on public duty. VII. Engage in no business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties. VIII. Never use any information coming to him confidentially in the performance of governmental duties as a means for making private profit. IX. Expose corruption wherever discovered. X. Uphold these principles, ever conscious that public office is a public trust. CREDIT (Ga. L. 1968, p. 1369.)

102

<General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS Cross references. -- Adoption of code of ethics for teachers and other professional educators, s 20-2-795. Law reviews. -- For a rticle "Conflicts of Interests of Public Officers and Em ployees," see 13 Ga. St. B.J. 64 (1976). JUDICIAL DECISIONS Cited in Pope v. Propst, 179 Ga. App. 211, 345 S.E.2d 880 (1986). OPINIONS OF THE ATTORNEY GENERAL Funeral service inspectors as trade asso ciation officers. -- St ate Board of Funeral Service inspectors appointed pursuant to Titl e 43, Chapter 18 are not prohibited by state law from holding appointed or elected office in private associations of funeral service practitioners. However, serving as an officer in such private association could create an appearance of impropriety by competing loyalties which may be owed to the association and to the board. 1990 Op. Att'y Gen. No. 90-25. Dual employment. -- A state employee m ay not contract with a county to perform services during the same 40-hour work week. 1998 Op. Att'y Gen. No. U98-12. RESEARCH REFERENCES Am. Jur. 2d. -- 63A Am. Jur. 2d, Public Officers and Employees, ss 312- 325. C.J.S. -- 67 C.J.S., Officers and Public Employees, s 197. ALR. -- Refusal of public officer to an swer frankly questions asked him during an investigation as ground for removal or discipline; 77 ALR 616. Liability of public officer for interest or other earnings received on public m oney in his possession, 5 ALR2d 257. Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 ALR4th 702. Code, 45-10-1 GA ST 45-10-1 END OF DOCUMENT

103

APPENDIX B

CODE OF GEORGIA TITLE 45. PUBLIC OFFICERS AND EMPLOYEES

CHAPTER 10. CODES OF ETHICS AND CONFLICTS OF INTEREST

ARTICLE 1. CODES OF ETHICS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

45-10-3 Code of ethics for members of boards, commissions, and authorities -- Establishment and text. Notwithstanding any provisions of law to the contrary, each member of all boards, commissions, and authorities created by general statute shall: (1) Uphold the Constitution, laws, and regulations of the United States, the State of Georgia, and all governments therein and never be a party to their evasion; (2) Never discriminate by the dispensing of special favors or privileges to anyone, whether or not for remuneration; (3) Not engage in any business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties; (4) Never use any information coming to him confidentially in the performance of governmental duties as a means for making private profit; (5) Expose corruption wherever discovered; (6) Never solicit, accept, or agree to accept gifts, loans, gratuities, discounts, favors, hospitality, or services from any person, association, or corporation under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence the performance of the member's official duties; (7) Never accept any economic opportunity under circumstances where he knows or should know that there is a substantial possibility that the opportunity is being afforded him with intent to influence his conduct in the performance of his official duties; (8) Never engage in other conduct which is unbecoming to a member or which constitutes a breach of public trust; and (9) Never take any official action with regard to any matter under circumstances in which he knows or should know that he has a direct or indirect monetary interest in the subject matter of such matter or in the outcome of such official action. CREDIT (Ga. L. 1976, p. 344, s 1.)

104

<General Materials (GM) - References, Annotations, or Tables>

NOTES, REFERENCES, AND ANNOTATIONS Law reviews. -- For article "Conflicts of Interests of Public Officers and Employees," see 13 Ga. St. B.J. 64 (1976).

JUDICIAL DECISIONS Evidence is relevant regarding violation of ethical duties. -- Testimony regarding the chief tax assessor's intoxication and conduct while attending certain county-financed activities, his conduct regarding certain female personnel who were employed in his office, and his attempted display of a jar of dog testicles to a female employee, was relevant at a hearing conducted by the board of county commissions to matters reasonably included within the scope of notice for his discharge hearing because the contested evidence had some relevancy to establish whether defendant had violated a duty imposed on him by law, and whether he violated certain ethical duties prescribed by law. Parsons v. Chatham County Bd. of Comm'rs, 204 Ga. App. 130, 418 S.E.2d 459 (1992), overruled in part on other grounds, Swafford v. Dade County Bd. of Comm'rs, 266 Ga. 646, 469 S.E.2d 666 (1996). Cited in Morton v. Gardner, 242 Ga. 852, 252 S.E.2d 413 (1979).

OPINIONS OF THE ATTORNEY GENERAL Act containing adverse matters constitutionally defective. -- Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see Ga. Const. 1983, Art. III, Sec. V, Para. III), was designed for the prevention of surreptitious legislation, and the prevention of "omnibus" bills containing many adverse matters; although it is not required that the title of an act contain an exact synopsis of the law itself, it is required that the matter following the enacting clause be definitely related to what is expressed in the title, and have a natural connection to the main object of the legislation; therefore, the courts could rule the Act comprised of ss 45-10-3 through 45-10-5, which Act imposes a general code of ethics on members of the Board of Human Resources and purports to take away the rule making authority of all boards, commissions, and authorities of state government, constitutionally defective (but other interpretations may militate against such construction). 1976 Op. Att'y Gen. No. 76-43.1. Contracting with hospital authority. -- A conflict of interest exists when any member of a hospital authority, whether he be a physician, attorney, architect, or member of any other profession, contracts with the authority to render professional services to the authority for or on behalf of the authority on a fee basis or for a stated stipend. 1983 Op. Att'y Gen. No. U83-5. Contracts of members of Board of Offender Rehabilitation. -- No conflict of interest would occur by brothers of a member of the Board of Offender Rehabilitation bidding

105

upon and receiving contracts to sell meat to Central State Hospital or any other state agency where each brother's business is completely separate and distinct from the board member's, and that the board member holds no interest in his brothers' businesses. 1984 Op. Att'y Gen. No. 84-18. A conflict of interest would arise if a member of the Board of Offender Rehabilitation sought to contract with the Department of Human Resources for the supply of meat where a portion of that meat would be used under the contract between the Department of Human Resources and the Department of Offender Rehabilitation for supplying meals to the Department of Offender Rehabilitation's staff and inmates. 1984 Op. Att'y Gen. No. 84-18. State Transportation Board member. -- No conflict of interest exists under current state law if the firm of a member of the State Transportation Board performs work for another governmental entity unless the work is directly or indirectly for the benefit of the Georgia Department of Transportation. 1991 Op. Att'y Gen. No. U91-13. Business acquiring property from state department. -- There is no conflict of interest or violation of the applicable Code of Ethics for a member of the Board of Natural Resources to transact business with a corporation which has acquired from the state of Georgia real property previously within the custody and control of the Department of Natural Resources. 1988 Op. Att'y Gen. No. 88-4. The State Ethics Commission acting as a body, or through an individual member of the commission, has no express or implied statutory authority to rule on a motion to recuse one of its members; rather, the member against whom the recusal motion is filed must determine, in light of s 45-10-3, whether he or she should voluntarily abstain. 1989 Op. Att'y Gen. 89-9.

RESEARCH REFERENCES Am. Jur. 2d. -- 63A Am. Jur. 2d, Public Officers and Employees, ss 322- 325. C.J.S. -- 67 C.J.S., Officers and Public Employees, s 51. ALR. -- Refusal of public officer to answer frankly questions asked him during an investigation as ground for removal or discipline; 77 ALR 616. Failure of public officer or employee to pay creditors on claims not related to his office or position as ground or justification for his removal or suspension, 127 ALR 495. What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 ALR3d 280. Validity, construction, and effect of state statutes restricting political activities of public officers or employees, 51 ALR4th 702. Code, 45-10-3 GA ST 45-10-3 END OF DOCUMENT

106

APPENDIX C

CODE OF GEORGIA TITLE 45. PUBLIC OFFICERS AND EMPLOYEES

CHAPTER 10. CODES OF ETHICS AND CONFLICTS OF INTEREST

ARTICLE 1. CODES OF ETHICS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

45-10-4 Code of ethics for members of boards, commissions, and authorities -- Hearing on violation charge; notice of hearing; removal of member from office; filling vacancies; judicial review. Upon formal charges being filed with the Go vernor relative to a violation of Code Section 45-10-3 on the part of a member of any such board, commission, or authority, the Governor or his designated ag ent shall conduct a h earing for the purpose of receiving evidence relative to the merits of such charges. The member so charged shall be given at least 30 days' notice prior to such hearing. If such charges are found to be true, the Governor shall forthwith remove such member from office and the vacancy shall be filled as provided by law. Such hearing shall be held in accordance with Chapter 13 of Title 50, the "Georgia Adm inistrative Procedure Act," and judicial review of any such decision shall be in accordance with such chapter. CREDIT (Ga. L. 1976, p. 344, s 3.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS Law reviews. -- For article, "Conflicts of Interests of Public Officers and Em ployees," see 13 Ga. St. B.J. 64 (1976). OPINIONS OF THE ATTORNEY GENERAL Act containing adverse matters constitutionally defective. -- Ga. Con st. 1976, Art. III, Sec. VII, Para. IV (see Ga. Const. 1983, Art. III, Sec. V, Para. III), was designed for the prevention of surreptitious legislation, and th e prevention of "om nibus" bills containing

107

many adverse matters; although it is not required that the title of an act contain an exact synopsis of the law itself, it is required that the matter following the enacting clause be definitely related to what is expressed in the title, and hav e a natural connection to the main object of the legislation; therefore, the courts could rule the Ac t comprised of ss 45-10-3 through 45-10-5, which Act im poses a general code of ethics on members of the Board of Human Resources and purports to ta ke away the rule m aking authority of all boards, commissions, and authorities of state government, constitutionally defective (but other interpretations may militate against such construction). 1976 Op. Att'y Gen. No. 76-43.1. State Transportation Board member. -- No conf lict of interest exists under current state law if the firm of a member of the State Tr ansportation Board performs work for another governmental entity unless the work is directly or indirectly for the benefit of the Georgia Department of Transportation. 1991 Op. Att'y Gen. No. U91-13. RESEARCH REFERENCES ALR. -- Power to remove public officer without notice and hearing, 99 ALR 336. Pardon as preventing disbarment of attorney or rem oval of officer or as nullif ying disbarment or removal, 143 ALR 172; 70 ALR2d 268. Inefficiency or m isconduct of deputy or subordinate as ground for removal of public officer, 143 ALR 517. Reinstatement of attorney after disbarment, suspension, or resignation, 70 ALR2d 268. Removal of public officers for misconduct during previous term, 42 ALR3d 691. Code, 45-10-4 GA ST 45-10-4 END OF DOCUMENT

108

APPENDIX D

CODE OF GEORGIA TITLE 45. PUBLIC OFFICERS AND EMPLOYEES

CHAPTER 10. CODES OF ETHICS AND CONFLICTS OF INTEREST

ARTICLE 2. CONFLICTS OF INTEREST PART 1. GENERAL PROVISIONS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through

1999 General Assembly 45-10-20 Definitions. As used in this part, the term: (1) "Agency" m eans any agency, aut hority, department, board, bureau, comm ission, committee, office, or instrumentality of the State of Georgia but shall not mean a political subdivision of the State of Georgia. (2) "Business" m eans any corporation, pa rtnership, proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, trust, or other legal entity. (3) "Employee" means any person who, purs uant to a written or oral contract, is employed by an agency. (4) "Family" means spouse and dependents. (5) "Full-time" means 30 hours of work fo r the state per w eek for more than 26 weeks per calendar year. (6) "Limited powers" means those powers other than state-wide powers. (7) "Part-time" means any amount of work other than full-time work. (8) "Person" m eans any person, corpor ation, partnership, proprietorship, firm , enterprise, franchise, association, organization, or other legal entity. (9) "Public official" m eans any person el ected to a state office and m eans any person appointed to a state office where in the conduct of such office the person so appointed has administrative and discretionary au thority to receive and expend public funds an d to perform certain functions concerning the public which are assigned to him by law. (10) "State-wide powers" means those powers exercised by public officials which affect and influence all of state governm ent. Public officials who exercise such powers include but are not limited to the Governor, the Lieutenant Govern or, members of the General Assembly, Justices of the Supr eme Court, Judges of the Cour t of Appeals, the Secretary of State, th e Attorney General, the state auditor, the com missioner of adm inistrative services, the comm issioner of the State Merit System of Personnel Administration and members of the State Personnel Board, the director of the Office of Planning and Budget, judges of the superior courts, and district attorneys. (11) "Substantial interest" means the direct or indir ect ownership of more than 25 percent of the assets or stock of any business. (12) "Transact business" or "transact any business" means to sell or lease any personal property, real property, or services on behalf of oneself or on behalf of any third party as

109

an agent, broker, dealer, or representative and means to purchase surplus real or personal property on behalf of oneself or on behalf of any third party as an agent, broker, dealer, or representative. CREDIT (Code 1981, s 45-10-20, enacted by Ga. L. 1983, p. 1326, s 1; Ga. L. 1984, p. 22, s 45; Ga. L. 1984, p. 1337, s 1.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS Code commission notes. -- Pursuant to s 28-9-5, in 1985 "adm inistrative services" was substituted for "the Department of Administrative Services" in paragraph (10). Law reviews. -- For article, "Conflicts of Interests of Public Officers and Em ployees," see 13 Ga. St. B.J. 64 (1976). JUDICIAL DECISIONS Pharmacy selling medicine to a Medicaid recipient is not selli ng personal property to Department of Medical Assistance (now Department of Community Health) and hence is not "transacting any business" with the depart ment. Georgia Dep't of Medical Assistance v. Allgood, 253 Ga. 370, 320 S.E.2d 155 (1984). OPINIONS OF THE ATTORNEY GENERAL Transactions by bro thers of officials. -- Transactions w ith state agencies by fam ily members of public officials which are statutorily prohibited are limited to transactions by the official's spouse or dependents, not his brothers. 1984 Op. Att'y Gen. No. 84-18. Member of Board of Offender Rehabilitati on is public official. -- Since members of the Board of Offender Rehabilitation have a scope of influence which is more or less limited to the Department of Offender Rehabilitation, a nd in view of the stat utory definition of "state-wide powers," a board member is a public official with lim ited powers. 1984 Op. Att'y Gen. No. 84-18. State Personnel Board member. -- A member of the State Personnel Board is prohibited from representing a private client, f or a fee, in a court of law or in any other adversarial proceeding where such repres entation might defeat the official pub lic actions of an other public officer. 1991 Op. Att'y Gen. 91- 25.

RESEARCH REFERENCES Am. Jur. 2d. -- 63A Am. Jur. 2d, Public Officers and Employees, ss 312- 325.

110

C.J.S. -- 67 C.J.S., Officers and Public Employees, ss 204, 257. Code, 45-10-20 GA ST 45-10-20 END OF DOCUMENT

111

APPENDIX E

CODE OF GEORGIA TITLE 45. PUBLIC OFFICERS AND EMPLOYEES

CHAPTER 10. CODES OF ETHICS AND CONFLICTS OF INTEREST

ARTICLE 2. CONFLICTS OF INTEREST PART 1. GENERAL PROVISIONS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through

1999 General Assembly 45-10-21 Legislative declarations, purposes, and intent. (a) It is essential to the proper operation of democratic go vernment that public officials be independent and im partial, that governm ental decisions and policy be m ade in the proper channels of the governm ental structure, that public office not be used for private gain other than the remuneration provided by la w, and that there be public confidence in the integrity of governm ent. The attainm ent of one or m ore of these ends is im paired whenever there exists a conflict between the pr ivate interests of an elected official or a government employee and his duties as such. T he public interest, therefore, requires that the law pr otect against such conf licts of interest and e stablish appropriate ethical standards with respect to the conduct of el ected officials and governm ent employees in situations where conflicts exist. (b) It is also essential to the proper opera tion of government that those best qualified be encouraged to serve the govern ment. Accordingly, legal safe guards against conflicts of interest must be so designed as not unn ecessarily or unreasonably to im pede the recruitment and rete ntion by the government of those m en and wom en who are best qualified to serve it. An essential principl e underlying the staffing of our governm ent structure is that its elected officials and employees should not be denied the opportunity, available to all other citizens, to acquire and retain privat e economic and other interests, except where conflicts with the responsibility of such elected officials and employees to the public cannot be avoided. (c) The General Assembly declares that the operation of responsible dem ocratic government requires that the fullest opportunity be afforded to the people to petition their government for the redress of grievances and to express freely to i ndividual members of the General Assembly, to committees of the General Assembly, and to officials of the executive branch their opinions on legisl ation, on pending execu tive actions, and on current issues and that, to preserv e and m aintain the integrity of the legis lative and administrative processes, it is nece ssary that the identity, expenditures, and activities of certain persons who engage in efforts to pe rsuade members of the General Assem bly or the executive branch to take specif ic actions, either by direct comm unication to such officials, or by solicitation of others to engage in such effor ts, be publicly and regularly disclosed. The provisions of this article shall be liberally construed to promote complete

112

disclosure of such inf ormation so as to assur e that th e public interest will b e fully protected. (d) It is the policy and purpose of this article to implement these objectives of protecting the integrity of all gove rnmental units of this state and of facilitating the recruitment and retention of qualified personnel by prescribing essen tial restrictions against conflicts of interest in state government without creating unnecessary barriers to the public service. CREDIT (Code 1981, s 45-10-21, enacted by Ga. L. 1983, p. 1326, s 1.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS Law reviews. -- For a rticle "Conflicts of Interests of Public Officers and Em ployees," see 13 Ga. St. B.J. 64 (1976). RESEARCH REFERENCES Am. Jur. 2d. -- 63A Am. Jur. 2d, Public Officers and Employees, s 323. C.J.S. -- 67 C.J.S., Officers and Public Employees, ss 204, 257. Code, 45-10-21 GA ST 45-10-21 END OF DOCUMENT

113

APPENDIX F

TITLE 36. LOCAL GOVERNMENT PROVISIONS APPLICABLE TO COUNTIES AND MUNICIPAL

CORPORATIONS CHAPTER 62A. CONDUCT OF MEMBERS OF LOCAL

AUTHORITIES ARTICLE 1. GENERAL PROVISIONS

O.C.G.A. § 36-62A-1 (2010) § 36-62A-1. Ethics; conflicts of interest (a) (1) All directors and members of any downtown development authority created pursuant to Chapter 42 of this title, known as the "Downtown Development Authorities Law," or of any authority created by or pursuant to a local constitutional amendment, whether for the purpose of promoting the development of trade, commerce, industry, and employment opportunities or for other purposes, to the extent that the Constitution of Georgia authorizes the General Assembly by law to define further and to enlarge or restrict the powers and duties of any such authority created by or pursuant to a local constitutional amendment shall comply with the provisions of Code Section 45-10-3, relating to a code of ethics of members of boards, commissions, and authorities and shall not engage in any transaction with the authority. (2) The provisions of paragraph (9) of Code Section 45-10-3 and of paragraph (1) of this subsection shall be deemed to have been complied with and any such authority may purchase from, sell to, borrow from, loan to, contract with, or otherwise deal with any director or member or any organization or person with which any director or member of said authority is in any way interested or involved, provided (1) that any interest or involvement by such director or member is disclosed in advance to the directors or members of the authority and is recorded in the minutes of the authority, (2) that any interest or involvement by such director with a value in excess of $200.00 per calendar quarter is published by the authority one time in the legal organ in which notices of sheriffs' sales are published in each county affected by such interest, at least 30 days in advance of consummating such transaction, (3) that no director having a substantial interest or involvement may be present at that portion of an authority meeting during which discussion of any matter is conducted involving any such organization or person, and (4) that no director having a substantial interest or involvement may participate in any decision of the authority relating to any matter involving such organization or person. As used in this subsection, a "substantial interest or involvement" means any interest or involvement which reasonably may be expected to result in a direct financial benefit to such director or member as determined by the authority, which determination shall be final and not subject to review.

114

(b) Nothing contained in subsection (a) of this Code section or in Code Section 45-10-3 shall be deemed to prohibit any director who is present at any decision of the authority from providing legal services in connection with any of the undertakings of the authority or from being paid for such services. HISTORY: Ga. L. 1982, p. 1726, § 1; Code 1981, § 36-62A-1, enacted by Ga. L. 1982, p. 1726, § 2; Ga. L. 1983, p. 1346, § 5; Ga. L. 1984, p. 22, § 36; Ga. L. 2010, p. 834, § 3/SB 456.

115

APPENDIX G

CONFLICT OF INTEREST RESOLUTION OF THE BOARD OF

DEVELOPMENT AUTHORITY OF CLAYTON COUNTY WHEREAS, it is the policy of the DEVELOPMENT AUTHORITY OF CLA YTON COUNTY, (hereinafter the. " Authority"', that no Board Member be prevented, or appear to be prevented, from making an unbiased decision with respect to matters involving the governance of the Authority by personal interest of the Board Member in the subject matter under consideration; and WHEREAS, it is the desire of the Authority to adopt a written policy regarding potential conflicts of interest in order to prevent such situations from arising. NOW, THEREFORE, IT IS RESOL VED: That the following be the policy of the Authority regarding the conflicts of interest of its Board Members and Officers:

I. GIFTS

No Board Member shall accept gifts, entertainment, other personal favor, or financial Benefit having a value in excess of FIFTY DOLLARS ($50.00), from, or give the same to, any person, or organization with whom or with which the Authority has, may have, or is likely to have business dealings.

2. COMPETING ENTITIES

(a) No Board Member shall become connected, directly or indirectly, with any competing,

entity or other competitor of the activities and ventures of the Authority during his/her tenure as a Board Member or Officer.

116

(b) No Board Member shall become involved, either directly or indirectly, in

activities or organizations, which the Authority deems may have an adverse affect on the Authority or activities of the Authority.

3. CONFIDENTIALITY

No Board Member shall disclose to anyone, either during or after his/her tenure as

a Board Member, any confidential information obtained by him/her as a result of serving as a Board Member or Officer, without first obtaining the consent of the Authority.

4. DUTY TO DISCLOSE

Each Board Member shall disclose to the Authority any outside activities or

interests of the Board Member that conflict or suggest a potential conflict with the best interest of the Authority .

5. DEALING WITH THE AUTHORITY

[0. C. G. A. §36-62-5 (e)(2)(B)]

No Board Member nor any organization or person with which any Board Member is in any way interested or involved, may purchase, sell to, borrow from, loan to, contract with, or otherwise deal with the Authority unless the following procedures are complied with, to-wit:

(a) Any interest or involvement by such Board Member is disclosed in advance to the Authority and is recorded in the minutes of the Authority;

117

(b) No Board Member having an interest or involvement may be present at that portion of a Board meeting during which discussion of any matter is conducted involving any such organization or person; and

(c) No Board Member having an interest or involvement may participate in any decision of the Authority or relating to any matter involving such organization or person.

As used herein, an "interest" shall mean any interest or involvement, which reasonably may be expected to result in a direct financial benefit to such Board Member or to a member of the Board Member's family.

BE IT FURTHER RESOLVED that the Authority shall require that all Board Members, present and future, shall, in writing, agree to uphold the policies herein stated. SO RESOLVED at a meeting of the DEVELOPMENT AUTHORITY OF CLAYTON COUNTY on the day of ,1999.

DEVELOPMENT AUTHORITY OF CLA YTON COUNTY

118

APPENDIX H

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 14. OPEN AND PUBLIC MEETINGS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

50-14-1 Meetings to be open to public; limitation on action to contest agency action; recording; notice of time and place; access to minutes; telecommunications conferences. (a) As used in this chapter, the term: (1) "Agency" means: (A) Every state department, agency, board, bureau, comm ission, public corporation, and authority; (B) Every county, municipal corporation, school district, or other political subdivision of this state; (C) Every department, agency, board, bureau, commission, authority, or similar body of each such county, municipal corporation, or other political subdivision of the state; (D) Every city, county, regional, or othe r authority established pursuant to the laws of this state; and (E) Any nonprofit organization to which ther e is a direct allocation of tax funds m ade by the governing authority of any agency as defined in this paragraph and whic h allocation constitutes more than 33 1/3 percent of the f unds from all sources of such organization; provided, however, this subpara graph shall not include hospitals, nursing homes, dispensers of pharmaceutical products, or any other type organization, person, or firm furnishing m edical or health servic es to a citizen for which they re ceive reimbursement from the state whether directly or indirectly; nor shall this term include a subagency or affiliate of such a nonprofit o rganization from or through which the allocation of tax funds is made. (2) "Meeting" means the gathering of a quorum of the m embers of the governing body of an agency or of any comm ittee of its members created by such governing body, whether standing or special, pursuant to sche dule, call, or notice of or from such governing body or committee or an authorized member, at a designated time and place at which any public m atter, official business, or policy of the agency is to be discussed or presented or at which official action is to be taken or, in the cas e of a comm ittee, recommendations on any public matter, official business, or policy to the governing body are to be formulated, presented, or discussed. The assembling together of a quorum of the members of a governing body or c ommittee for the purpos e of making inspection s of physical facilities under the juri sdiction of such ag ency or for the purposes of m eeting with the governing bodies, officers, agents, or employees of other ag encies at places

119

outside the geographical jurisdiction of an agency and at w hich no final official action is to be taken shall not be deemed a "meeting." (b) Except as otherwise provided by law, all meetings as defined in subsection (a) of this Code section shall be open to the public. A ny resolution, rule, regulation, ordinance, or other official action of an agency adopted, taken, or made at a meeting which is not open to the public as requ ired by this chapter shall not be binding. Any action contesting a resolution, rule, regulation, ordinance, or othe r formal action of an agency based on an alleged violation of this provi sion must be commenced within 90 days of the date such contested action was taken, provided that an y action under this chapter contesting a zoning decision of a local governing author ity shall be commenced within the tim e allowed by law for appeal of such zoning decision. (c) The public at a ll times shall be af forded access to m eetings declared open to th e public pursuant to subsection (b) of this Code section. V isual, sound, and visual and sound recording during open meetings shall be permitted. (d) Every agency shall prescribe the tim e, place, and dates of regular m eetings of the agency. Such information shall be available to the general public and a notice containing such information shall be posted and m aintained in a conspicuous place available to the public at the regular m eeting place of the agency. Mee tings shall be held in ac cordance with a regu lar schedule, but no thing in this subsection shall p reclude an agency from canceling or postponing any regularly sche duled meeting. W henever any m eeting required to be open to the public is to be held at a time or place other than at the time and place prescribed for regular m eetings, the agen cy shall giv e due notice thereof. "Due notice" shall be the posting of a written notic e for at least 24 hours at the place of regular meetings and giving of written or oral notice at least 24 hours in advance of the m eeting to the legal organ in which not ices of sheriff' s sales are published in the county where regular meetings are held or at the option of the agency to a newspaper having a general circulation in said county at least equal to th at of the legal organ; provided, however, that in counties where the legal organ is publishe d less often than four tim es weekly "due notice" shall be the posting of a written notic e for at least 24 hours at the place of regular meetings and, upon written request from any local broadcast or print m edia outlet whose place of business and ph ysical facilities are located in the co unty, notice by telephone or facsimile to that requesting media outlet at least 24 hour s in advance of the called meeting. When special circum stances occur and are so declared by an agency, that agency may hold a meeting with less than 24 hours' notice upon giving such notice of the meeting and subjects expected to be consider ed at the meeting as is reasonable under the circumstances including notice to said c ounty legal organ or a newspaper having a general circulation in the county at least equal to that of the legal organ, in which event the reason for holding the m eeting within 24 hour s and the nature of the notice shall be recorded in the m inutes. Whenever notice is given to a legal organ or other newspaper, that publication shall im mediately make th e information available upon inquiry to any member of the public. Any oral no tice required or permitted by this su bsection may be given by telephone. (e) (1) Prior to any meeting, the agency holding such meeting shall make available an agenda of all m atters expected to come before the agency at such meeting. The agenda shall be available upon request and shall be pos ted at the meeting site, as far in advance of the meeting as reasonably possible, but shall not be required to be available m ore than

120

two weeks prior to the m eeting and shall be posted, at a m inimum, at some time during the two-week period im mediately prior to the meeting. Failure to include on the agenda an item which becomes nece ssary to address during the c ourse of a m eeting shall not preclude considering and acting upon such item. (2) A summary of the subjects acted on a nd those members present at a meeting of any agency shall be written and m ade available to the public for inspection within two business days of the adjournm ent of a meeting of any agency. The m inutes of a meeting of any agen cy shall b e promptly recorded and such reco rds shall b e open to p ublic inspection once approved as official by the agen cy, but in no case later than imm ediately following the next regular m eeting of the agency; provided, however, nothing contained in this chap ter shall pr ohibit the earlier release of m inutes, whether approved by the agency or n ot. Said m inutes shall, as a minimum, include the nam es of the m embers present at the meeting, a description of each motion or other proposal made, and a record of all votes. In the case o f a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance un less the minutes reflect the name of the persons voting against the proposal or abstaining. (f) An agency with state-wide ju risdiction shall be authorized to conduct m eetings by telecommunications conference, provided that any such m eeting is conducted in compliance with this chapter. CREDIT (Code 1981, s 50-14-1, enacted by Ga. L. 1988, p. 235, s 1; Ga. L. 1992, p. 1061, ss 1, 2; Ga. L. 1993, p. 784, s 1; Ga. L. 1999, p. 549, ss 1, 2.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1999 am endment, effective July 1, 1999, inserted "public corporation," in subparagraph (a)(1)(A); in pa ragraph (2) of subsection (a), in the first sentence, substituted "any public m atter, official bu siness," for "official bu siness" in two places, inserted "or presented", and inserted ", pres ented, " near the end; and, in subsection (e), designated the existing provisions as paragr aph (2), substituted "A summary" for "An agenda" at the beginning of that paragraph, and added paragraph (1). Code commission notes. -- Pursuant to Code Section 28-9-5, in 1988, "at which" was inserted following "time and place" in the fi rst sentence of paragraph (2) of subsection (a). Pursuant to Code Section 28-9-5, in 1993, in paragraph (2) of subsection (a), the period at the end was moved inside the quotation marks. Pursuant to Code Section 28-9-5, in 1999, "two-week" was substitu ted for "two week" in paragraph (1) of subsection (e). Law reviews. -- For article discussing pr ovisions opening local government meetings to

121

the public, see 13 Ga. L. Rev. 97 (1978). For article discussing Georgia' s open government provisions with respect to land us e planning, in light of Evans v. Just Open Gov't, 242 Ga. 834, 251 S.E.2d 546 (1979), see 31 Mercer L. Rev. 89 (1979). For article, "Georgia's Open Records and Open Meetings Laws: A Continued March Toward Government in the Sunshine," see 40 Mercer L. Rev. 1 (1988). For annual survey of local government law, see 44 Mercer L. Rev. 309 (1992). For note discussing Georgia' s Sunshine Law requiring m eetings by state and local governmental authorities to be open to the public, see 10 Ga. St. B.J. 598 (1974). For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 324 (1989). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992). JUDICIAL DECISIONS Applicability of Act. -- The test for a pplicability of the Open Meetings Act is two-pronged: first, is the m eeting one of a "governing body of an agency" or any committee thereof?; and second, is the m eeting one "at which official business or policy of the agency is to be discussed or at whic h official action is to be taken?" Crosland v. Butts County Bd. of Zoning Appeals, 214 Ga. App. 295, 448 S.E.2d 454 (1994). Construction of act. -- The Open Meetings Act must be broadly co nstrued to effect its purpose of protecting the public and individuals from closed door meetings. Jersawitz v. Fortson, 213 Ga. App. 796, 446 S .E.2d 206 (1994) ; Crosland v. Butts County B d. of Zoning Appeals, 214 Ga. App. 295, 448 S.E.2d 454 (1994). Although the county board of commissioners met the technical requirements of subsection (d), posting notice of the m eeting in which the waste ordinance was adopted on the door of the county office building was not adequate as a m atter of law since the board knew that the ord inance would affect the landfill operator's business in operating the landfill and notice was not published in the legal orga n of the county because the meeting occurred before publication was pos sible. Diamond W aste, Inc. v. Monroe County, 796 F. Supp. 1511 (M.D. Ga. 1992). The language of this section is clear. It applies to the meetings of the var iously described bodies which are empowered to act officially for the state and at which such official action is taken. McLarty v. Bo ard of Regents of Univ. Sys., 231 Ga. 22, 200 S.E.2d 117 (1973). Unauthorized groups. -- This section does not encompass the innumerable groups which are organized and m eet for the purpos e of collecting inform ation, making recommendations, and rendering advice bu t which have no authority to m ake governmental decisions and act for the state. McLarty v. Board of Regents of Univ. Sys., 231 Ga. 22, 200 S.E.2d 117 (1973). A committee of the University of Georgia which was organized by the dean of student affairs primarily for the purpose of revi ewing the stud ent senate's recommended allocation of student activity funds does not come within the purview of this section. McLarty v. Board of Regents of Univ. Sys., 231 Ga. 22, 200 S.E.2d 117 (1973).

122

Inapplicable to legislature. -- Th is chapter is applicable to the departments, agencies, boards, bureaus, etc. of this state and its polit ical subdivisions. It is not applicable to the General Assembly. Coggin v. Davey, 233 Ga. 407, 211 S.E.2d 708 (1975). Inapplicable to public officer dismissals. -- The Open Meetings Act is not applicable when the dismissal of a public officer, such as a county attorney, is under consideration, in accordance with s 50-14-3(6 ). Brennan v. Chatham County Co mm'rs, 209 Ga. App. 177, 433 S.E.2d 597 (1993). Inapplicable to advisory group. -- The A tlanta City Council can not constitutionally delegate subpoena power, power to punish by contem pt, and the power to require sworn testimony before a court reporter , to a purely private, adviso ry group (the Administrative Review Panel), and the attem pt by the city coun cil to do so is void. Accordingly, since the purported delegation of official power to the panel is constitutionally infirm, the panel has no lawful official power, and is a purely advisory group, not subject to the provisions of this ch apter. Atlanta Journal v. Hill, 257 Ga. 398, 359 S.E.2d 913 (1987) (decided prior to 1988 repeal and reenactment). Construed with Recall Act. -- The conduct o f a public official who participates in a closed meeting that is required by law to be open can become a "ground for recall" under the Recall Act if the circumstances of that participation come within the def inition of "grounds for recall." Steele v. Honea, 261 Ga. 644, 409 S.E.2d 652 (1991). Openness of governmental meetings. -- The "sunshine law" under this section does not require notice to public of govern mental meetings; rather, it merely requires meetings to be open to the public. Dozier v. Norris, 241 Ga. 230, 244 S.E.2d 853 (1978). Scope of section. -- T his section deals wi th the openness of public meetings, not with notice of such meetings. Harms v. Adams, 238 Ga. 186, 232 S.E.2d 61 (1977). This section seeks to eliminate closed meetings which engender in the people a distrust of its officials who are clothed with the power to act in their name. McLarty v. Board of Regents of Univ. Sys., 231 Ga. 22, 200 S.E.2d 117 (1973). "Official action" defined. -- Official action is action which is taken by virtue of power granted by law, or by virtue of the office held, to act for and in behalf of the state. McLarty v. Board of Regents of Univ. Sys., 231 Ga. 22, 200 S.E.2d 117 (1973). Immunity for action within s cope of official duties. -- Actions taken by m embers of county airport authority which m ay have viol ated the Open Meetings Act did not lose their character as actio ns taken within the sco pe of the members' official duties for purposes of immunity. Atlanta Airmotive, Inc. v. Royal, 214 Ga. App. 760, 449 S.E.2d 315 (1994). Some meetings closed to public. -- A c ounty board of education m ay have unofficial meetings or meetings closed to the public to discuss and decide questions that fall within the enumerated exceptions of this chap ter. Deriso v. Cooper, 245 Ga. 786, 267 S.E.2d

123

217 (1980). Actions at nonpublic m eetings violative of section. -- Where there was conflicting evidence whether the s ubstantive merits of a petition for a special land use perm it to develop a solid waste landfill were discusse d at nonpublic m eetings of county board of zoning appeal, summary judgment for the board was precluded. Crosland v. Butts County Bd. of Zoning Appeals, 214 Ga. App. 295, 448 S.E.2d 454 (1994). Prior improper meetings. -- The Open Meetings Act contains no provision authorizing a court to invalidate an ordinance on the ground that the subject m atter of the ordinance was previously discussed at meetings that violate the act. Board of Comm'rs v. Levetan , 270 Ga. 544, 512 S.E.2d 627 (1999). Committee meeting within purview of act . -- The Oly mpic Task Force Selection Committee of the Atlanta Housing Authority (AHA), for med with the knowledge and approval of AHA and c onsisting of several AHA decisionmakers, was a vehicle for the agency to carry out its responsibilities and, thus, a meeting of the committee was within the purview of the Open Meetings Act. Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994). A coroner's inquest co nstitutes a "m eeting" within the m eaning of subsection (a)(2). Kilgore v. R.W. Page Corp., 261 Ga. 410, 405 S.E.2d 655 (1991). Private, nonprofit hospital co rporations that served as vehicles through which public hospital authorities carried out their official responsibilitie s were subject to the Open Meetings Act and the Open Records Act. No rthwest Ga. Health Sys. v. Tim es-Journal, Inc., 218 Ga. App. 336, 461 S.E.2d 297 (1995). Student organization court hearings open. -- The trial court erred in concluding that the hearings of the student-run organization court w ere not subject to th is act given that the court was the official vehicle by which the un iversity carried out its responsibility, as directed by the Board of Regents, to regulate social organizations. Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993). Where inquest was closed to public. -- Re lief sought in a news paper publisher's suit against a coroner to prohibit him from closing to the public a sc heduled inquest was governed by the Open Meetings Law and the Open Records Law. Kilgore v. R.W . Page Corp., 259 Ga. 556, 385 S.E.2d 406 (1989). Provision of videotape of meeting is not compliance. -- The Atlanta Housing Authority did not substantially comply w ith the statute by providing a ci tizen with a videotape of a meeting of the Olym pic Task Force Selec tion Committee after the agency accepted the recommendation of the comm ittee. Jersawitz v. Fortson, 213 Ga. App. 796, 446 S.E.2d 206 (1994). Cited in Georgia Real Estate Co mm'n v. Horne, 141 Ga. App. 226, 233 S.E.2d 16

124

(1977); Worthy v. Paulding County Hosp. Auth., 243 Ga. 851, 257 S.E.2d 271 (1979); Irvin v. Macon Tel. Publishing Co., 253 Ga . 43, 316 S.E.2d 449 (1984); Atlanta Journal v. Babush, 257 Ga. 790, 364 S.E.2d 560 (1988); W alker v. City of W arner Robins, 262 Ga. 551, 422 S.E.2d 555 (1992); Guthrie v. Dalton City Sch. Dist., 213 Ga. App. 849, 446 S.E.2d 526 (1994). OPINIONS OF THE ATTORNEY GENERAL Applicability of section. -- This section, the "sunshine law," does not cover m eetings at which no official action may be taken. 1978 Op. Att'y Gen. No. U78-2. County board of tax assessors and county board of equalization are subject to the Georgia Open Meetings Law. 1995 Op. Att'y Gen. No. U95-22. Ad hoc "public record " evaluation. -- Questio n of whether spec ific investigation or inspection report is "public r ecord" must be answered on a case-by-case basis. 1980 Op. Att'y Gen. No. 80-105. Inspection of board-initiated investigation files. -- Unless files reflecting board-initiated investigation meet definition of subsection (b ) of this s ection, citizen does not h ave a right to inspect such a file as a public r ecord under s 50-18-70. 1980 Op. Att'y Gen. No. 80-84. Written memorials of final action disclosable. -- Investigative materials that ar e not prepared and kept as written memorials of final board actio n should not be disclosed to the public. However, those portions of board meeting minutes which deal with final action taken as to a particular applicant may be disclosed. 1980 Op. Att'y Gen. No. 80-84. Insurer's individual loss ratio experience. -- Unless statistical information as to insurer's individual loss ratio experience submitted to Insurance Commissioner constitutes "written memorials of a final action" taken by the Insurance Department, a citizen does not have right to in spect the infor mation submitted as a public record and the In surance Commissioner is not required to release it. 1981 Op. Att'y Gen. No. 81-66. Meetings of Organized Crim e Prevention Council. -- Since the Organized Crime Prevention Council is a law enforcem ent agency, its proceedings and m eetings are not required to be open to the public under th e Georgia Open Meetings Statute. 1986 Op. Att'y Gen. No. U86-35 (decided prior to 1988 repeal and reenactment). School board meetings regarding personnel matters. -- School board m ay not close any meeting devoted to the airing of grievanc es about school personnel by interested members of the public; further, should the boa rd conduct an inquiry into the actions of school personnel, any evidence or argum ent presented to the board must be held in an open meeting, but the board m ay close that portion of the m eeting consisting of deliberation or discussion of disciplin ary action upon proper com pliance with the statutory closure provisions. 1995 Op. Att'y Gen. No. U95-15.

125

Student disciplinary hearings before local boards of edu cation, including any deliberations of the board at which f inal action is taken or discussed, are required to be open to the public. 1983 Op. Att'y Gen. No. 83-9. Meetings by telephone conference call. -- Meetings of the Stone Mountain Mem orial Association may be conducted by speaker te lephone conference where public access is provided. 1985 Op. Att'y Gen. No. 85-26, modifying 1970 Op. Att'y Gen. No. 70-122. Utilization of a telephonic conference is permissible for a regular meeting of the State Properties Commission; such a m eeting may be conducted to m eet the requirements of the Open and Public Meetings Act, and m embers participating by telephonic m eans in such a meeting may be counted to reach a quorum. 1994 Op. Att'y Gen. No. 94-11. State Ethics Comm ission is an "agency" as contemplated by this chapter. 1989 Op. Att'y Gen. No. 89-6. The State Ethics Commission activ ities conducted in accordance with s 21-5- 6(b)(10)(A), including c onvening a quorum to hear testim ony, taking evidence, considering argument of the parties, deliber ating, and im posing penalties, constitute a "meeting" within the m eaning of Open Me etings Law. Accordingly, the commission must conduct all of these activities regard ing the resolution of a contested case in accordance with the dictates of the Open Meetings Law. 1989 Op. Att'y Gen. No. 89-6. Private Industry Councils are "agencies" for purposes of the Open M eetings Law, and records generally maintained by such PIC' s are subject to the Open Records Law. 1989 Op. Att'y Gen. No. 89-5. RESEARCH REFERENCES ALR. -- Validity, constructi on, and application of statut es making public proceedings open to the public, 34 ALR5th 591. Emergency exception under state law making proceedings by public bodies open to the public, 33 ALR5th 731. Attorney-client exception under state law making proceedings by public bodies open to the public, 34 ALR5th 591. Code, 50-14-1 GA ST 50-14-1 END OF DOCUMENT

126

APPENDIX I

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 14. OPEN AND PUBLIC MEETINGS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

50-14-3 Excluded proceedings. This chapter shall not apply to the following: (1) Staff m eetings held for investiga tive purposes under dutie s or responsibilities imposed by law; (2) The deliberations and voting of the State Board of P ardons and Paroles; and in addition said board may close a meeting held for the purpose of receiving information or evidence for or agains t clemency or in revoc ation proceedings if it determ ines that the receipt of such information or evidence in open meeting would present a substantial risk of harm or injury to a witness; (3) Meetings of the Georgia Bureau of Investigation or any other law enforcem ent agency in the state, including grand jury meetings; (4) Meetings when any agency is discussing the future acquisition of real estate, except that such meetings shall be subject to the re quirements of this chapter for the giving of the notice of such a m eeting to the public a nd preparing the m inutes of such a m eeting; provided, however, the disclosure of such porti ons of the minutes as would identify real estate to be acquir ed may be delayed until such time as the acquis ition of the real e state has been completed, terminated, or abandoned or court proceedings with respect th ereto initiated; (5) Meetings of the governing au thority of a public hospital or any co mmittee thereof when discussing the granting, restriction, or re vocation of staff privileges or the granting of abortions under state or federal law; (6) Meetings when discussing or deliberating upon the appointm ent, employment, compensation, hiring, disciplinary action or dism issal, or periodic evaluation or rating of a public officer or em ployee but not when receiving evidence or hearing argum ent on charges filed to deter mine disciplinary action or dism issal of a public of ficer or employee. The vote on any matter covered by this paragraph shall be taken in public and minutes of the meeting as provided in this chap ter shall be made available. Meetings by an agency to discuss or take action on the filling of a vacancy in the membership of the agency itself shall at all times be open to the public as provided in this chapter; (7) Adoptions and proceedings related thereto; and (8) Meetings of the board of trustees or the investm ent committee of any public retirement system created by Title 47 when such board or comm ittee is discussing matters pertaining to in vestment securities trading or investment portfolio positions and composition.

127

CREDIT (Code 1981, s 50-14-3, enacted by Ga. L. 1988, p. 235, s 1; Ga. L. 1992, p. 1061, s 3; Ga. L. 1997, p. 44, s 2.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1997 amendment, effective March 11, 1997, deleted "and" at the end of paragraph (6); substituted "; and" for a period at the end of paragraph (7); and added paragraph (8). Code commission notes. -- Pursuant to C ode Section 28-9-5, in 1992, "paragraph" was substituted for "subsection" in paragraph (6). Law reviews. -- For note on 1992 am endment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992). JUDICIAL DECISIONS There is no exception for pending crim inal investigations. Kilgore v. R.W. Page Corp., 261 Ga. 410, 405 S.E.2d 655 (1991). Dismissal of a public officer. -- This chapter is not applicable when the dism issal of a public officer is under consideration. Br ennan v. Chatham County Comm'rs, 209 Ga. App. 177, 433 S.E.2d 597 (1993). A coroner does not constitu te a "law en forcement agency" within the m eaning of paragraph (3). Kilgore v. R.W. Page Corp., 261 Ga. 410, 405 S.E.2d 655 (1991). Cited in A thens Observer, Inc. v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980); Saleem v. Snow, 217 Ga. App. 883, 460 S.E.2d 104 (1995). OPINIONS OF THE ATTORNEY GENERAL Applicability of chapter. -- This ch apter was not meant to apply and does not apply to every governmental entity. 1979 Op. Att'y Gen. No. 79-25. Chapter does not apply to entities within judicial branch of state government, as nothing in the chapter contradicts this conclusion; th e law contains no reference to the jud icial branch, any of its parts, or any judicial function. 1979 Op. Att'y Gen. No. 79-25. State Ethics Commission sessions not excluded. -- There is no statutory provision in this section or the Georgia Adm inistrative Procedure Act whic h would authorize the S tate Ethics Commission to deliberate in closed session after hearing evidence in a con tested case. 1989 Op. Att'y Gen. No. 89-6.

128

Chapter does not apply to Board of C ourt Reporting or any other agency. -- Chapter does not apply to Board of Court Reporting or a ny other agency of the judicial branch of government. 1979 Op. Att'y Gen. No. 79-25. The Advisory Comm ittee on Area Planning and Development is sub ject to Geo rgia's Open Meetings Law. Op. Att'y Gen. No. U85-42. Subsequent Injury Trust Fund Board m eetings. -- The portion of Subsequent Injury Trust Fund Board m eetings in w hich the me dical and rehabilitation records of an individual are discussed are not subject to th e Open Meetings Law. 1991 Op. Att 'y Gen. No. 91-8. The portions of Subsequent Injury Tr ust Fund Board m eetings in which personnel matters are discussed are not subject to th e Open Meetin gs Law, unless the board is conducting an evidentiary hearing or entertaining argument in a disciplinary proceeding. 1991 Op. Att'y Gen. 91-8. Executive sessions. -- Portions of official meeting m ay be closed or conducted in "executive" sessions under specific circumstances if the proper procedu res are followed. 1998 Op. Att'y Gen. No. U98-3. There is no lim itation on who m ay be invi ted into executive sessions. 1998 Op. Att' y Gen. No. U98-3. Prior public notice that a portion of a properly advertised open meeting will be closed is not required. 1998 Op. Att'y Gen. No. U98-3. A county board can discuss or deliberat e on the appointm ent of a county attorney, county physician, or county adm inistrator in closed session, but must vote on the appointment in public. 1998 Op. Att'y Gen. No. U98-3. Provisions as to executive sessions apply to cities, and to public hospita l authorities when they are conducting "strategic planning sessions." 1998 Op. Att'y Gen. No. U98-3. There are no requirem ents regarding the taking of m inutes of proceedings in an executive session. 1998 Op. Att'y Gen. No. U98-3. Code, 50-14-3 GA ST 50-14-3 END OF DOCUMENT

129

APPENDIX J

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 14. OPEN AND PUBLIC MEETINGS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

50-14-4 Procedure when meeting closed. (a) When any meeting of an agency is clos ed to the public pursuant to any provision of this chapter, the specific reasons for such closure shall be entered upon the official minutes, the m eeting shall not be closed to the public except by a majority vote of a quorum present for the m eeting, the m inutes shall reflect the na mes of the m embers present and the nam es of those voting for closur e, and that part of the m inutes shall be made available to the p ublic as any other m inutes. Where a m eeting of an agency is devoted in part to m atters within the ex ceptions provided by law, any portion of the meeting not subject to any such exception, privilege, or confidentiality shall be o pen to the public, and the m inutes of such portions not s ubject to any such exception shall be taken, recorded, and open to public inspecti on as provided in subsection (e) of Code Section 50-14-1. (b) When any meeting of an agency is clos ed to the public pursuant to subsection (a) of this Code section, the chairperson or othe r person presiding over such m eeting shall execute and file with the official m inutes of the m eeting a no tarized affidavit stating under oath that the subject m atter of the meeting or the closed portion thereof was devoted to m atters within the exceptions provided by law and id entifying the s pecific relevant exception. CREDIT (Code 1981, s 50-14-4, enacted by Ga. L. 1988, p. 235, s 1; Ga. L. 1999, p. 549, s 3.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1999 am endment, effective July 1, 1999 , designated the ex isting provisions as subsection (a), substituted "provided by law" for "set forth in this chapter" in th e second sentence of that subsection and added subsection (b). JUDICIAL DECISIONS Cited in Atlanta Journal v. Babush, 257 Ga. 790, 364 S.E.2d 560 (1988).

130

OPINIONS OF THE ATTORNEY GENERAL Notice provisions for closed m eetings. -- An agency m ust comply with the no tice provisions of the Open Meetings Law when a meeting, as defined in the law, is to be held in closed session. Minutes available to the publ ic are limited to the reasons for closure, the names of the m embers present and the na mes of those voting for closure. 1988 Op. Att'y Gen. No. U88-30. Open Meetings Law does not apply to judi cial branch. -- The legislature did not intend for the Open Meetings Law to apply to the judicial branch of gove rnment. Therefore, a judicial commission is not subject to this chapter. Fathers Are Parents Too, Inc. v. Hunstein, 202 Ga. App. 716, 415 S.E.2d 322 (1992).

RESEARCH REFERENCES ALR. -- Emergency exception under state law making proceedings by public bodies open to the public, 33 ALR5th 731. Code, 50-14-4 GA ST 50-14-4 END OF DOCUMENT

131

APPENDIX K

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 14. OPEN AND PUBLIC MEETINGS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through 1999 General Assembly

50-14-6 Violation of chapter; penalty. Any person knowingly and willfully conducting or participating in a meeting in violation of this chapter shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $500.00. CREDIT (Code 1981, s 50-14-6, enacted by Ga. L. 1988, p. 235, s 1.)

<General Materials (GM) - References, Annotations, or Tables> Code, 50-14-6 GA ST 50-14-6 END OF DOCUMENT

132

APPENDIX L

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 18. STATE PRINTING AND DOCUMENTS ARTICLE 4. INSPECTION OF PUBLIC RECORDS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through

1999 General Assembly 50-18-70 Inspection of public records; printing of computerized indexes of county real estate deed records; time for determination of whether requested records are subject to access; electronic access to records. (a) As used in this ar ticle, the term "public record" shall mean all documents, papers, letters, maps, books, tapes, photographs, com puter based or generated inform ation, or similar material prepared and maintained or received in the course of the operation of a public office or agency. "Public record " shall also m ean such item s received or maintained by a private person or entity on behalf of a public office or ag ency which are not otherwise subject to protection from disclosure; provided, however, this Code section shall be construed to disallow an agency's placing or causing such items to be placed in the hands of a private person or entity for the purpose of avoiding disclosure. Records received or maintained by a private person, firm, corporation, or ot her private entity in the performance of a service or function for or on behalf of an agency, a public agency, or a public office shall be subject to disclosure to the same extent that such records would be subject to disclosu re if received or m aintained by such agency, p ublic agency, or public office. As used in this article, the te rm "agency" or "public agency" or "public office" shall have th e same meaning and application as provided for in the definition of the term "agency" in paragraph (1) of subs ection (a) of Code Sec tion 50-14-1 and shall additionally include any association, corporation, or other similar organization which: (1) has a m embership or ownership body com posed primarily of counties, m unicipal corporations, or school districts of this state or their officers or any com bination thereof; and (2) derives a substantial portion of its general operating budget from paym ents from such political subdivisions. (b) All public records of an agency as defined in subsec tion (a) of this Code section, except those which by order of a court of this state or by law are proh ibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a re asonable time and place; and those in charge of such records shall not refuse this privilege to any citizen. (c) Any computerized index of a county real estate deed records shall be printed for purposes of public inspection no less than every 30 days and any correction made on such index shall be m ade a part of the printout and shall ref lect the time and date th at said index was corrected. (d) No pu blic officer or agency shall be required to prepare reports, summ aries, or

133

compilations not in existence at the time of the request. (e) In a pending proceeding under Chapter 13 of this title, the "G eorgia Administrative Procedure Act," or under any other adm inistrative proceeding authorized under Georgia law, a party m ay not access public records pe rtaining to the subj ect of the proceeding pursuant to this article wit hout the prior approval of th e presiding adm inistrative law judge, who shall consider such open record request in the same manner as any other request for information put forth by a party in such a pr oceeding. This subsection shall not apply to any proceeding unde r Chapter 13 of this title, relating to the revocation, suspension, annulment, withdrawal, or denial of a professi onal education certificate, as defined in Code Section 20-2-200, or any pe rsonnel proceeding authorized under Part 7 and Part 11 of Article 17 and Article 25 of Chapter 2 of Title 20. (f) The individual in control of such public record or records sh all have a reasonable amount of time to determine whether or not the record or records requested are subject to access under this article and to permit inspection and copying. In no event shall this time exceed three business days. W here responsive records exist but are not available within three business days of the request, a written de scription of such records, together with a timetable for their inspection and copying, shall be provided within that period; provided, however, that records not subj ect to inspection under this article need not be m ade available for inspection and copying or described other than as required by subsection (h) of Code Se ction 50-18-72, and no records ne ed be m ade available f or inspection or copying if the public of ficer or agency in c ontrol of such records shall have obtained, within that period of three business days, an order based on an exception in this article of a superior court of this state staying or refusing the requested access to such records. (g) At the request of the person, fir m, corporation, or other entity requesting such records, records m aintained by com puter shall be m ade available where practicable by electronic means, including Intern et access, subject to reasonable security restrictions preventing access to nonrequested or nonavailable records. CREDIT (Ga. L. 1959, p. 88, s 1; Code 1981, s 50-18-70; Ga. L. 1982, p. 1789, s 1; Ga. L. 1988, p. 243, s 1; Ga. L. 1992, p. 1061, s 5; Ga. L. 1992, p. 1545, s 1; Ga. L. 1992, p. 2829, s 2; Ga. L. 1993, p. 1394, s 2; Ga. L. 1993, p. 1436, ss 1, 2; Ga. L. 1994, p. 618, s 1; Ga. L. 1998, p. 128, s 50; Ga. L. 1999, p. 552, ss 1, 2.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1998 amendment, effective March 27, 1998, part of an Act to correct errors and omissions in the Code, substitu ted "disclosure; provided, however," for "disclosure. Provided, further," in subsection (a) and inserted "of this Code section" in subsection (b). The 1999 amendment, effective July 1, 1999, added the third sentence in subsection (a); in subsection (f), added "and to perm it inspection and copying" at the end of the first sentence and added the last sentence; and added subsection (g).

134

Cross references. -- Right of shareholders to inspect books and reco rds of corporations, s 14-2-1602. Confidentiality of records rela ting to adoption proceed ings, s 19-8 -18. Opening of primary and election records of Secretary of State for inspection by public, s 21-2-51. Opening of prim ary and election r ecords of election superintendents for inspection by public, s 21-2-72. Disclosure and publication of vital records, s 31-10-25. Inspection of motor vehicle reco rds, s 40-3- 24. Confidentiality of reports, files, etc., relating to probation, s 42-8-40. Confidentiality of records of State Board of Pardons and Paroles, s 42-9-53. Confidentiality of income tax information, ss 48-7-60, 48-7-61. Code commission notes. -- Ga. L. 1992, p. 1061, s 5, added new subsections (d) and (e). Ga. L. 1992, p. 1545, s 1, added new subsection (c) and redesignated form er subsection (c) as subsection (d). Ga. L. 1992, p. 2829, s 2, added a new subsection (d). Pursuant to Code Section 28-9-5, in 1992, fo rmer subsection (c) was redesignated as subsection (f), and the new subsectio n added by Ga. L. 1992, p. 2829, s 2, was redesignated as subsection (g). Law reviews. -- For article discu ssing the right of access to pub lic records of local government, see 13 Ga. L. Rev. 97 (1978). For ar ticle, "Informational Privacy Under the Open Records Act," see 32 Mercer L. Rev. 393 (1980). For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For annual survey on local governm ent law, see 42 Mercer L. Rev. 359 (1990). For annual survey of local government law, see 44 Mercer L. Rev. 309 (1992). For note on 1992 am endment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992). For note on the 1994 am endment of this C ode section, see 11 Ga. St. U.L. Rev. 265 (1994). JUDICIAL DECISIONS ANALYSIS General Consideration Public Records Balancing of Interests Exceptions General Consideration Legislative intent. -- Intent of General Assembly was to afford to public at la rge access to public records, with the exceptions of certain inform ation which is exem pt from disclosure. Griffin-Spalding County Hosp. Auth. v. Radi o Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978). The General Assembly did not intend that all public records of law enforcement officers and officials be open for inspection by a citi zen as soon as such records are prepared.

135

Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976). The purpose of this article is not only to encourage public access to information in order that the public can evaluate the expenditure of public funds and the effi cient and proper functioning of its instituti ons, but also to foster conf idence in governm ent through openness to the public. Athens Observer, In c. v. Anderson, 245 Ga . 63, 263 S.E.2d 128 (1980). The purpose of the Open Records Act is to encourage public access to governm ent information and to foster confidence in governm ent through openness to the public. McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992). Actions to enjoin disclosure of information authorized. -- The Open Records A ct (s 50-18-70 et seq.) provides the ju risdictional basis for a cause of action by individuals to enjoin the disclosure of legally protect ed information. Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995). Construction of statutory exemptions. -- Any purported statutory exem ption from disclosure under the Open Records Act m ust be narrowly construed. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992). Inquiries under Open Records Act. -- In suits under the Open R ecords Act, the first inquiry is whether the records are "public records"; if they are, the second inquiry is whether they are protected from disclosure under the list of exemptions or under any other statute; if they are not exempt, then the question is whether they should be protected by court order, but only if there is a clai m that disclosure would invade individual privacy. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992). Reasonable access to files. -- A c ustodian of public records com plies with an open records request when he grants reasonable ac cess to the files in hi s custody; he is not required to comb through the files and locate, inspect and produce the documents sought. Felker v. Lukemire, 267 Ga. 296, 477 S.E.2d 23 (1996). Meaning of administrative proceedings. -- The procedures set forth in s 31-6- 40 et seq., for consideration of a certificate of need by the Health Planning Agency and appeal to the Health Planning Review Board, establish adm inistrative proceedings within the meaning of subsection (d). Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 430 S.E.2d 89 (1993). Standing to recover loaned FBI documents. -- United States had standing to bring suit in a federal court to recove r FBI docum ents loaned to a city during a hom icide investigation, even though a state court had ordered disclosure of the documents pursuant to the Geo rgia Open Records Act, and som e documents had already been dis closed. United States v. Napper, 887 F.2d 1528 (11th Cir. 1989). Burden on custodian to explain denial of access. -- If th ere has been a request for identifiable public records within the possession of the custodian thereof, the burden is

136

cast on that party to explain why the record s should not be furnished. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987). Effect of pendency of habeas-corpus pe tition. -- Pendency of a habeas-corpus petition filed by the defendant who was convicted of tw o of the "Atlanta child murders" did not justify a blanket nondisclosure of the files of other victim s which had been introduced to demonstrate a "pattern" am ong the murders. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987). Board of Regents is subject. -- The Boar d of Regents of the Un iversity System of Georgia is subject to the Open Records Act, s ince it is an agency of the state. Board of Regents v. Atlanta Journal, 259 Ga. 214, 378 S.E.2d 305 (1989). Private, nonprofit hospital co rporations that served as vehicles through which public hospital authorities carried out their official responsibilitie s were subject to the Open Meetings Act and the Open Records Act. No rthwest Ga. Health Sys. v. Tim es-Journal, Inc., 218 Ga. App. 336, 461 S.E.2d 297 (1995). Proposed inquest closed to public. -- Relief sought in a newspaper publisher' s suit against a coroner to prohibit him from closing to the public a sc heduled inquest was governed by the Open Meetings Law and the Open Records Law. Kilgore v. R.W . Page Corp., 259 Ga. 556, 385 S.E.2d 406 (1989). Access by personal com puter not required. -- Although database of real estate deed records was a public record within the m eaning of the Open Records Act, the clerk of court was not required to create a new program to provide public access with personal computers. Jersawitz v. Hicks, 264 Ga. 553, 448 S.E.2d 352 (1994). Applicability of 1989 am endment to in surance code. -- A 1989 am endment to the insurance code, which exempts certain documents from the open records law, applied to a case which was on appeal at the tim e the amendment became effective. Evans v. Belth, 193 Ga. App. 757, 388 S.E.2d 914 (1989). Cited in R entz v. City of Moultrie , 231 Ga. 579, 203 S.E.2d 216 (1974); Morton v. Skrine, 242 Ga. 844, 252 S.E.2d 408 (1979); D oe v. Sears, 245 Ga. 83, 263 S.E.2d 119 (1980); Bennett v. State, 158 Ga. App. 421, 280 S.E.2d 429 (1981); Price v. F ulton County Comm'n, 170 Ga. App. 736, 318 S.E.2d 153 (1984); City of Atlanta v. Pacific & S. Co., 257 Ga. 587, 361 S.E.2d 484 (1987); C onklin v. Zant, 263 Ga. 165, 430 S.E.2d 589 (1993); Ford v. City of Oakwood, 905 F. Supp. 1063 (N.D. Ga. 1995). Public Records "Public records" defined. -- Documents, pa pers, and records prepared and maintained in the course of the operation of a public office are "public records" wi thin the meaning of this section, and it is immaterial that su ch documents, papers, and records were not required to be prepared and m aintained pursuant to a statu te or o rdinance. Houston v.

137

Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976); Irv in v. Macon Tel. Publishing Co., 253 Ga. 43, 316 S.E.2d 449 (1984). The 1980 am endment of the defin ition of "public records" in s 50-1 4-1(b) does not indicate a legislativ e intent to m odify the definition of "public records" set forth in Houston v. Ruthledge, 237 Ga. 764, 229 S. E.2d 624 (1976). Irvin v. Macon Tel. Publishing Co., 253 Ga. 43, 316 S.E.2d 449 (1984). Communications to county officials from attorney are county records under this section, and, therefore, are not privil eged communications between an attorney and his client. Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff'd, 457 F.2d 788 (5th Cir. 1972). Report to state university. -- A repor t representing the final analysis and recommendations after study by paid consulta nts to a state univer sity, evaluating the mathematical departments, is a public record under this section. Athens Observer, Inc. v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980). Applications for position of university president. -- Applications submitted by candidates for the position of Georg ia State University p resident, and the resumes and vitae, which were products of the applican ts themselves, although they were m aterials upon which, in part, "confidential evaluations" were based, were not evaluations. Hence they were not exempt from disclosure. Board of Regents v. Atlanta Journal, 259 Ga. 214, 378 S.E.2d 305 (1989). Financial records of University of Ge orgia Athletic Association. -- Becaus e the president of the Univer sity of Georgia is charged with co ntrolling the intercollegiate sports program at the univers ity and because the maintenance of documents relating to the assets, liabilities, incom e, and e xpenses of the intercollegiate sports program is an integral part thereof, regardless of whether the documents are prepared by employees of a private Athletic Association or by the president as tr easurer of that association, it is clear that they are documents, papers, and records prepared and maintained in the course of the operation of a public office, and are therefor e "public records" unde r the Open Records Act, s 50-18-70 et seq. Macon Tel. Publishing Co. v. Board of Regents, 256 Ga. 443, 350 S.E.2d 23 (1986). Records pertaining to Univ ersity of Georgia athle tics. -- W ith respect to inf ormation pertaining to athletics at th e University of Georgia, th e following are public records: initial reports, prepared by co aches, of outside incom e; contracts between coaches and suppliers of equipm ent and apparel for athl etes; and inform ation related to radio and television broadcasts, w hether produced by the university or as part of the university' s exclusive rights to broadcast football and basketball games. However, contracts between individual coaches and outside en tities to make speaking appearances or to provide commentary during certain basketball broadcas ts, were not public reco rds, where there was no evidence that the documents related to athletic events involving the un iversity. Dooley v. Davidson, 260 Ga. 577, 397 S.E.2d 922 (1990). Student organization court records of the University of Georgia concerning alleged

138

university rule and regulations violations on th e part of fratern ities and sororities were "public records" subject to this act, not exempted by s 50-18-72(a) by virtue of any federal legislation. Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993). The consultant appearance contract of a uni versity athletic coach relates to a private activity, is not a public record, and need not be disclosed. Cremins v. Atlanta Journal, 261 Ga. 496, 405 S.E.2d 675 (1991). Personnel records of school bus drivers in the possession of a private com pany transporting pupils under a contract with a city school system were "public records" subject to the Open Record s Act. Hackworth v. Boar d of Educ., 214 Ga. App. 17, 447 S.E.2d 78 (1994). Private corporation's records were public. -- Despite private status of corporations created as part of a reorga nization of county hospital aut hority, when assets of the authority were transferred to one or more of the corporations, and the records of all of the corporations remained in the possession and control of the au thority, the private corporations were subject to this act, and the requested documents were "public records" under this act. Clayton County Hosp. Auth. v. Webb, 208 Ga. App. 91, 430 S.E.2d 89 (1993). Real property ad valorem digests, returns, and related records, not having been m ade confidential by law, are subjec t to inspection under this s ection. Pensyl v. Peach County, 252 Ga. 450, 314 S.E.2d 434 (1984). Records of criminal investigations fall within the p rovisions of this section if the criminal investigation has been completed. Cox Enters., Inc. v. Harris, 256 Ga. 299, 348 S.E.2d 448 (1986). Investigatory reports. -- An investigatory report concerning cl aims of m isconduct against an employee of the State Board of Pa rdons and Paroles was a public record, and was not exempt from disclosure under s 50-18-72. Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998). Records of Georgia Bureau of Investig ation's investigation of Departm ent of Agriculture employees and administrative law judge's order reviewing that investigation were public records subject to disclosure. Irvin v. Macon Tel. Publishing Co., 253 Ga. 43, 316 S.E.2d 449 (1984). Retrial possibility not grounds f or nondisclosure of investigatory files. -- When a murder conviction and death sentence resulting from the prosecution have been affirm ed on appeal, but a rape conviction has been reve rsed on a ground that leaves the state free to retry the defendant, the possible retrial of the defendant does not warrant nondisclosure to him of criminal investigatory files, wher e the agency cu stodians of the files at issue failed to carry th eir burden of showing an imminent proceeding on the rape charge

139

against defendant to exem pt such files fr om disclosure pursuant to s 50-18-72(a)(4). Parker v. Lee, 259 Ga. 195, 378 S.E.2d 677 (1989). Information incorporated into investigatory case file. -- Although motor vehicle records used by police dur ing the "Atlan ta child murders" case were not open for public inspection under the Public Records Act, this did not preclude public disclosure where a law-enforcement officer who had inspected the records incorpo rated information therefrom into an investigatory case f ile. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987). Records of Georgia DOT. -- Neither the "state matter" privilege nor the "secret of state" privilege exempted cost estimates of the DOT from disclosure under the Open Records Act. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992). Disclosure by bank that custom er was i nvolved with som e motor vehicles finance d through the bank was not an invasion of priv acy based on public disclosure of private facts, as, at the tim e of the dis closure, motor vehicle certificates of title we re public records open to pub lic inspection. Williams v. Coffee County Bank, 1 68 Ga. App. 149, 308 S.E.2d 430 (1983). Peer review reports construed. -- The repor ts generated as part of the state' s hospital licensing activities rather than as peer review records are no t protected f rom disclosure under the Open Records Act by s 31-7-15(d). Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990). Hospital accreditation review organization records. -- Hospital accreditation records generated by a nonprofit organizat ion are not protected from di sclosure as the records of a confidential review organization under s 31-7-133 because the organization is not a "review organization" com prised primarily of "professional health care providers" as those terms are defined by s 31-7-131. Georgia Hosp. A ss'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990). Because hospital accreditation surveys do not fit in to any of the categories of records exempted from disclosure, the policy underl ying the Open Records Act m andates their release. The public has a legitimate interest in the records which make up the Department of Human Resources' hospital licensing decisions. Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990). Records available for public inspection. -- Public records pr epared and maintained in a concluded investigation of alleged or actua l criminal activity should be available for public inspection. Houston v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976). Police reports concerning rape were public records obtainable by a student newspaper; the reports were not exem pt under s 50-18-72 since they were not the subject of a pending investigation and involved a matter which had been terminated. Doe v. Board of Regents, 215 Ga. App. 684, 452 S.E.2d 776 (1994).

140

Applicability of rape victim confidentiality statute. -- A campus newspaper was entitle d to university police reports concerning an incident of alleged rape but, in accordance with the rape victim confidentiality statute (s 16-6- 23), with the victim's name and identifying information redacted. Doe v. Board of Regents, 215 Ga. App. 684, 452 S.E.2d 776 (1994). Confidential tax inform ation not disclosa ble. -- Conf idential tax in formation in an investigative file of the Attorney General was not subject to disclosure under this section. Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995). Agreement not to use requested inform ation. -- If the requesting pa rty signs a statement agreeing not to use the requested inform ation for commercial purposes, there is no basis under this section to deny access to the records. Clayton County Hosp. Auth. v. W ebb, 208 Ga. App. 91, 430 S.E.2d 89 (1993). Testimony given at public inquest. -- When a coroner, who is a public official, makes an inquest and opens it to the public, and the testimony given at the public inquest is recorded and transcribed at publ ic expense, the coroner has waived any right to contend that the transcript is not a public record. R.W . Page Corp. v. Kilgore, 257 Ga. 179, 356 S.E.2d 870 (1987). Balancing of Interests Judicial determination of necessity for inspection. -- When a controversy arises between a citizen and a public official, the judiciary has the rather important duty of determining whether inspection or noninspection of the publ ic records is in th e public interest; the judiciary must balance the interest of the public in favor of inspection against the interest of the public in favor of noninspection in deci ding this issue. Athens Observer, Inc. v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980); Atchison v. Hospital Auth., 245 Ga. 494, 265 S.E.2d 801 (1980). Trial court m ust weigh factors for and ag ainst inspection. -- In determ ining whether allowing members of the public to inspect records would be in the public interest, the trial court must weigh factors militating in favor of inspection (i.e., the interest of the citizens in knowing what their g overnment officials are doing) against factors militating against inspection (i.e., whether this would unduly disrupt the state activity involved). In this regard, the court m ust weigh benef its accruing to the governm ent from nondisclosure against the harm which may result to the public if such records are not made available for inspection. Northside Realty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978). Court need not review disclosed records. -- There is nothing in the Open Records Act which imposes a duty on the trial court to make a supervisory review of records disclosed under the Act. Trammel v. Martin, 200 Ga. App. 435, 408 S.E.2d 477 (1991). Degree of citizens' right to inspection of al l public records. The judiciary must balance

141

the interest of the public in fa vor of inspection agai nst the interest of the public in favor of noninspection in deciding whether inspection or noninspection of the public records is in the public interest. Nort hside Realty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978). Burden shifts to defendant to show reasons for nondisclosure. -- Where it was found that plaintiff (citizen) had made a request for identifiable public records w ithin defendant's (police department's) possession, the burden was cast on defendant to explain why the records should not be f urnished. Brown v. Minter, 243 Ga. 397, 254 S .E.2d 326, cert. denied, 444 U.S. 844, 100 S. Ct. 88, 62 L. Ed. 2d 57 (1979). Special or personal interest not required. -- Under this section, a citizen seeking an opportunity to copy and inspect a public reco rd need not show any special or personal interest therein. Northside Realty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978). Courts are not authorized to deny m embers of the public requests to inspect documents merely because those m aking requests have no special or personal interest in the documents. Northside R ealty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978). Disclosure of county hospital employees' occupational information. -- The disclosure of the names, salaries, and job titles of county hospital employees is not an invasion of personal privacy as contemplated by the General Assembly to permit an exemption from disclosure, nor is the public interest in disclosure outweighed by be nefits to the hospital accruing from nondisclosure. Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984). Effect of employment at nonresident cor poration. -- Neither this section nor any other provision of the law disqualifies a citizen of this state from exercising his rights under this section because he happens to be an employee of a nonresident corporation and may share the information received with his em ployer. Atchison v. Hospital Auth., 245 Ga. 494, 265 S.E.2d 801 (1980). Exceptions Exceptions generally. -- Exception s permitted under this section inclu de disclosure of information regarding on-going investigatio ns, the nam es of inform ants, and in exceptional and necessarily limited cases, the names of complainants. Brown v. Minter, 243 Ga. 397, 254 S.E.2d 326, cert. denied, 444 U.S. 844, 100 S. Ct. 88, 62 L. Ed. 2d 57 (1979). Records not open for public inspection. -- The public records that are prepared and maintained in a current and continuing inves tigation of possible criminal activity should not be open for public inspection. Houst on v. Rutledge, 237 Ga. 764, 229 S.E.2d 624 (1976).

142

Personnel records. -- Mere placem ent of r ecords of Georgia Bureau of Investigation' s investigation in the personnel file of an investigated pub lic employee did not transfor m the records into personnel-rel ated records. Irvin v. Macon Tel. Publishing Co., 253 Ga. 43, 316 S.E.2d 449 (1984). Clinical records. -- The disclosure provisions of subsection (b) do not apply to clinical records as defined by s 37-3-1(2). Southeas tern Legal Found., Inc. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991). Mental health records of a person who allegedly shot a number of people in a shopping mall were "clinical records" within the meaning of s 37-3-1(2), and therefore not subject to inspection under the Open Records Act. Southeastern Legal Found., Inc. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991). Medical review commi ttee findings provide d for in s 31-7-143, in the control of any government agency, is not subject to inspect ion or release under th e provisions of this section and any such material should be red acted from any reports which the agency is otherwise required to make available for inspection or release to the public. Em ory Univ. Hosp. v. Sweeney, 220 Ga. App. 502, 469 S.E.2d 772 (1996). OPINIONS OF THE ATTORNEY GENERAL "Public record" defined. -- A public record is one made by a public officer in pursuance of a duty, the imm ediate purpose of which is to disseminate information to the public or to serve as a m emorial of official transactions for public reference. 1971 Op. Att' y Gen. No. U71-9. Aspect which m akes documents subject to public scrutiny. -- Th e mere fact that a document is deposited or filed in a public offi ce, or with a public of ficer, or is in the custody of a public officer, does not m ake it a public record; the crucial aspect which makes applications and related m aterials subject to public scrutiny is th e necessity for a board to keep these documents in the discharge of their proper duty. 1976 Op. Att' y Gen. No. 76-126. Georgia courts have adopted a balancing te st in construing this section. 1981 Op. Att' y Gen. No. U81-47. Use of term "law" in this section likely encompasses agency rules and regulations. 1981 Op. Att'y Gen. No. 81-50. Files inspectable only if they m eet definition in s 50-14-1(b). -- Unless files reflecting board-initiated investigation meet definition of subsection (b) of s 50-14-1, citizen does not have a right to inspect such a file as a public record under this section. 1980 Op. Att'y Gen. No. 80-84. Subpoena not required for in spection or copying. -- Citize n requesting to inspect and copy public records subject to th is article cannot be required to first obtain a subpoena.

143

1980 Op. Att'y Gen. No. 80-105. Requests for computer-generated information. -- Information does not fall outside the scope of the Open Records Act because it is stored by means of magnetic tape or diskette rather than in more traditional form. Where the requested information can be retrieved by a minimal computer search, an agency m ust comply. The param eters of the Open Records Act cannot be altered by contract and any such provisions are unenforceable. 1989 Op. Att'y Gen. 89- 32. Grand jury lists are public records. -- Under th is section and s 45-6-6, grand jury lists are public records and as such are m atters which are open to inspection by citizens at a reasonable time and place; any citizen, even a newspaper publisher, m ay copy same and also publish them in a newspaper, if he so desires. 1967 Op. Att'y Gen. No. 67-371. Suits on account, notes, m ortgage foreclosures, and garnishments are "public records" within this section since they are re quired by law to be kept, as well as within s 45 -6-6, since they are contained in books kept by a public officer under the laws of Georgia. Therefore, as public records these m atters should be open to insp ection by citizens at a reasonable time and place. 1967 Op. Att'y Gen. No. 67-340. Section 8 housing docum ents. -- Docum ents pertaining to insp ection of Section 8 housing are subject to open records requests. 1991 Op. Att'y Gen. No. 91- 33. Investigative report may be withheld from inspection. -- A policem an's investigative report prepared for submission to his superiors is not a record which must be available for inspection or copying pursuant to this article. 1975 Op. Att'y Gen. No. U75-92. Personnel records of local board need not be available for public inspection. -- This section does not require personne l records of a local board of education to be m ade available to the general public for inspection or copying, and should they so desire, local school boards m ay lawfully m aintain a policy of confidentiality concerning such files. 1977 Op. Att'y Gen. No. 77- 56. Personnel records of employees of university system are state records within meaning of this section. 1965-66 Op. Att'y Gen. No. 66-88. State employees accept conditions imposed by law of salary disclosure. -- As for those employees who m ight not des ire to have salary information disclosed, in accepting employment by the state, they necessarily accepted the conditions im posed by law u pon that employment. 1965-66 Op. Att'y Gen. No. 66-88. Daily records, diaries, summaries, and computation sheets are not subject to inspection or copying under this section; the Departm ent of Trans portation may deny requests to examine or copy such papers. 1973 Op. Att'y Gen. No. 73-55. Inspection of public utilities tax infor mation. -- W hen this section and s 48-2-15 are

144

considered together, it is readily apparent, there being no prohibition by court order or by law of the state aga inst the pub lic inspection of public u tilities tax inf ormation at the county level, that the infor mation incident to the assessm ent of ad va lorem taxes on public utilities furnished by the state revenue commissioner to the counties is not covered by the secrecy provision of s 48-2-15, and that release of sa me to the public by the commissioner would not be in violation of such section. However, any inform ation obtained by the commissioner which in the regular course of business is not furnished to the county in the process of assessing the ta x would not be the subject m atter of a public document in the county office, and, therefore, would re main covered by the secrecy provision of s 48-2-15. 1963- 65 Op. Att'y Gen. p. 277. Trade secrets and other c onfidential business inform ation. -- Trade secrets and other confidential business in formation received by the state en ergy office from the federal government and businesses in the private sect or are not within the purview of this section, and may be treated as confidential by that state agency. 1974 Op. Att'y Gen. No. U74-113. No duty for board to initiate furnishing of public records. -- This article prov ides for inspection and copying of public records by citi zens, but does not re quire Department of Education to itself prepare and furnish copies of public records to interested persons. 1976 Op. Att'y Gen. No. U76-43. No absolute right of parent to in spect child's records. -- This se ction is gene rally interpreted to intend that records kept on beha lf of the public shall be open and that those kept for the benefit of an individual sha ll not. Common sense and good judgment should prevail, but there is no absolute leg al right on the part of a parent to inspect his m inor child's school records. 1972 Op. Att'y Gen. No. U72-74. Records available to nonresidents. -- Reco rds should be made available for inspection upon request by any nonresident of Georgia unless disclosure is prohibited by court order or otherwise exempted by law. 1993 Op. Att'y Gen. No. 93-27. Records of justice of peace are op en. -- The records in the office of the justice of the peace are p ublic records of a court and are op en for inspection by th e general pu blic, including a notary public, ex officio justice of the peace. 1962 Op. Att'y Gen. p. 101. Licensure applications are public records. -- Licensure applications submitted to the State Board of Registration of Use d Car D ealers and their necessary parts are public records and, therefore, application s and rela ted material become state records op en to public scrutiny when they are received by the board; financial statements submitted are a necessary part of this app lication and are, therefore, open for public inspection, and it would not be permissible for the board to retu rn the financial statements to the applicant without subjecting them to public scrutiny. 1976 Op. Att'y Gen. No. 76-126. Licensure of nursing hom e programs is subject to this section. 1965-66 Op. Att 'y Gen. No. 65-93.

145

No disclosure of inform ation from records by telephone. -- Records m ay be m ade available for inspection by m embers of th e public who m ight come in and m ake a request, but no such information is to be given by telephone. 1965-66 Op. Att'y Gen. No. 66-88. Access to information on electors. -- The na mes, addresses, and zip codes of electors must be furnished upon request for the f ees set forth in s 21-2-234. Any additio nal identifying information as may be collected and maintained must also be m ade available for inspection and copying and a reasonable fee may be charged for expenses incurred for copies furnished. 1984 Op. Att'y Gen. No. 84-39. Inmate records. -- This section does not m andate that inmate records are to be open for public inspection since Depart ment of Offender Rehabilita tion (now Departm ent of Corrections) rules and regulations, which have force and effect of law, require that inmate records not be open for public inspection. 1981 Op. Att'y Gen. No. 81-50. Department of Offender Rehabilitation (now Department of Corrections) m ay properly release to Social Security Administration (SSA) inmate records necessary to enable SSA to perform its statutory duties ; so long as in formation released is neces sary for SSA to carry out its statutorily prescribed duties, the department will not be liable for invasion of an inmate's privacy. 1981 Op. Att'y Gen. No. 81-50. Contents of personnel files not o rdinarily available. -- W ritings of sort traditionally found in personnel files, as well as such re lated writings as interoffice communications concerning performance of a specific em ployee, would not ordinarily be available to general public by virtue of this section. 1981 Op. Att'y Gen. No. 81-71. Student evaluations of academic courses or faculty instruction are subject to dis closure under Georgia's Open Records Law, regardless of the fact that a faculty committee, board or agency may have passed a resolution requiring the evaluation d ata be maintained in strict confidence. 1988 Op. Att'y Gen. No. 88-3. Disclosure of medical payments. -- Department of Medical Assistance (now Department of Community Health) must di sclose maximum payments available to providers under the various reimbursement schedules. 1980 Op. Att'y Gen. No. 80-50. Criminal history confidential. -- Infor mation obtained pursuant to crim inal history background check under s 16- 11-129 is confidential. Info rmation obtained pursuant to criminal history background check, required by s 16-11- 129, from taking of fingerprints and checking of these fingerprin ts with t hose presently on file with Georgia Crim e Information Center is of a confidential nature and prohibited from public disclosure. 1981 Op. Att'y Gen. No. U81-47. Revolver permits. -- Only nam es of persons issued perm its to carry revolvers and date of issuance are matters of public record. 1981 Op. Att'y Gen. No. U81- 47.

146

Utility accounts of a municipa lity are not exempt from disclosure under Open Records Law. 1982 Op. Att'y Gen. No. U82-36. Alcohol beverage invo ices submitted for ta x purposes. -- Invoices reflecting s ales of alcohol beverages by wholesalers to local retailers furnished to a local governing authority for the purpose of computing local alcohol excise tax are public records under s 50-18-70 and should be disclosed. 1985 Op. Att'y Gen. No. U85-44. Copying copyrighted records on file. -- C opying of copyrighted m anuals, rates, and rules which must be filed with the insurance commissioner would not constitute an unfair use and hence would not amount to an infringement but, to the contrary, would constitute a fair use within the purpose f or which th e filing was m ade with the comm issioner. 1965-66 Op. Att'y Gen. No. 66-178. Notices of plant closings received from private employers by the Georgia Department of Labor pursuant to the "Worker Adjustm ent and Retraining Notification Act" are su bject to public disclosure under the Georgia Open Records Law. 1989 Op. Att'y Gen. 89-38. Official's personal storage of tax records. -- It is not proper for county tax commissioner to store tax records in his home. 1975 Op. Att'y Gen. No. U75- 75. Members of the General Assembly have no greater right than any other citizen to inspect records deemed confidential under the Open Record s Act. 1988 Op. Att' y Gen. No. U88-33. Workers' compensation records. -- All records of th e State Board of W orkers' Compensation pertaining to accidents, injuri es, and settlements are confidential, unless a party can meet the statutory requirements for access or has authority pursuant to the Child Support Recovery Act. 1991 Op. Att'y Gen. No. 91-5. Records of the State Board of Workers' Compensation Fraud and Compliance Division are subject to disclosure under the Open Records Act, except where such disclosure is exempted by the Act, prohibited by law, or prohibited by court order. 1997 Op. Att'y Gen. No. 97-20. Job training bid documents. -- Documents used in the competitive bidding process under the federal Job Training Partne rship Act of 1982 are subject to the Open Records Act. 1991 Op. Att'y Gen. No. 91-11. Salary and expense inform ation of nonprof it contractors receiving "arts grants" funds through the Office of Planning and Budge t based upon the recommendation of the Georgia Council for the Arts m ust be m ade available for public inspection. 1995 Op. Att'y Gen. No. 95-31. RESEARCH REFERENCES

147

Am. Jur. 2d. -- 66 Am. Jur. 2d, Records and Recording Laws, ss 12, 15, 19 et seq. C.J.S. -- 76 C.J.S., Records, s 35 et seq. ALR. -- Right to examine records or documents of municipality relating to public utility conducted by it, 102 ALR 756. Enforceability by mandamus of right to inspect public records, 169 ALR 653. Validity, construction, and application of statutory provisi ons relating to public access to police records, 82 ALR3d 19. Restricting access to records of disciplina ry proceedings against attorn eys, 83 ALR3d 749. Discovery or inspection of st ate bar records of complaints against or investig ations of attorneys, 83 ALR3d 777. Restricting access to judicial reco rds of concluded adoption proceedings, 83 ALR3d 800. Accused's right to discovery or inspection of "rap sheets" or similar police records about prosecution witnesses, 95 ALR3d 832. What constitutes preliminary drafts or notes provided by or f or state or local governmental agency, or intra-agency m emorandums, exempt from disclosure or inspection under state freedom of information acts, 26 ALR4th 639. Patient's right to disclosure of his or her own medical records under state freedom of information act, 26 ALR4th 701. What are "records" of agency which m ust be m ade available under state freedom of information act, 27 ALR4th 680. What constitutes an agency subject to application of state freedom of information act, 27 ALR4th 742. What constitutes "trade secrets" exem pt from disclosure under state freedo m of information act, 27 ALR4th 773. State freedom of inform ation act requests: right to receive inform ation in particular medium or format, 86 ALR4th 786. Propriety of publishing identity of sexual assault victim, 40 ALR5th 787. What are "reco rds" of agency which m ust be m ade available under Freedom of Information Act (5 USCA s 552(a)(3)), 153 ALR Fed. 571. Code, 50-18-70 GA ST 50-18-70 END OF DOCUMENT

148

APPENDIX M

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 18. STATE PRINTING AND DOCUMENTS ARTICLE 4. INSPECTION OF PUBLIC RECORDS

Copyright (C) 1982-1999 by The State of Georgia.

All rights reserved. Current through 1999 General Assembly 50-18-71.2 Estimate of copying fees as condition for assessment. Any agency receiving a request for public records shall be required to notify the party making the request of the estim ated cost of the copying, search, retrieval, and other administrative fees authorized by C ode Section 50-18-71 as a condition of com pliance with the pr ovisions of this a rticle prior to fulfilling the re quest as a c ondition for the assessment of any fee; provided, however, th at no new fees other than those directly attributable to provid ing access sh all be a ssessed where records are m ade available by electronic means. CREDIT (Code 1981, s 50-18-71.2, enacted by Ga. L. 1996, p. 313, s 2; Ga. L. 1999, p. 552, s 3.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS Effective date. -- This Code section became effective July 1, 1996. The 1999 amendment, effective July 1, 1999, added the proviso at the end of this C ode section. Code, 50-18-71.2 GA ST 50-18-71.2

149

APPENDIX N

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 18. STATE PRINTING AND DOCUMENTS ARTICLE 4. INSPECTION OF PUBLIC RECORDS

Copyright (C) 1982-1999 by The State of Georgia.

All rights reserved. Current through 1999 General Assembly

50-18-71 Right of access to make photographs or reproductions. (a) In all cases where an interested m ember of the public has a righ t to inspect or take extracts or m ake copies from any public re cords, instruments, or docum ents, any such person shall have the right of acces s to the records, documents, or in struments for the purpose of m aking photographs or reproductions of the sam e while in the possession, custody, and control of the lawful custodian th ereof, or his authorized deputy. Such work shall be done under the supervision of the lawful custodian of the records, who shall have the right to adopt and enforce reasonable rules governing the work. The work shall be done in the room where the records, docum ents, or instruments are kept by law. While the work is in progress, th e custodian may charge the person m aking the photographs or reproductions of the records, docum ents, or instruments at a rate of compensation to be agreed upon by the person m aking the photographs and the custodian for his services or the services of a deputy in supervising the work. (b) Where fees for certified copies or other copies or records are specifically authorized or otherwise prescribed by law, such specific fee shall apply. (c) Where no fee is otherwise provided by law, the agency m ay charge and collect a uniform copying fee not to exceed 25 cents per page. (d) In addition, a reasonable charge m ay be collected for search, retrieval, and other direct administrative costs for complying w ith a reques t under this Code section. The hourly charge shall not exceed the salary of the lowest paid full-tim e employee who, in the discretion of the cu stodian of the reco rds, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour. (e) An agency shall utilize the most economical means available for providing copies of public records. (f) Where information requested is maintained by computer, an agency may charge the public its actual cost of a computer disk or tape onto which the information is transferred and may charge for the adm inistrative time involved as set forth in subsection (d) of this Code section. (g) Whenever any person has requested one or more copies of a public record and such person does not pay the copying charges and charge s for search, retrieval, or other direct administrative costs in accordance with the provisions of this Code section: (1) A county or a departm ent, agency, board, bureau, commission, authority, or similar

150

body of a c ounty is authorized to collect su ch charges in any m anner authorized by law for the collection of taxes, fees, or assessments owed to the county; (2) A m unicipal corporation or a de partment, agency, board, bureau, comm ission, authority, or similar body of a municipal corporation is authorized to collect such charges in any manner authorized by law for the collecti on of taxes, fees, or assessments owed to the municipal corporation; (3) A consolidated governm ent or a department, agency, boa rd, bureau, comm ission, authority, or sim ilar body of a consolidated government is authorized to collect s uch charges in any manner authorized by law for th e collection of taxes, fees, or assessments owed to the consolidated government; (4) A county school board or a depart ment, agency, board, bureau, comm ission, authority, or similar body of a county school board is authorized to collect such charges in any manner authorized by law for the collecti on of taxes, fees, or assessments owed to the county; (5) An independent school board or a de partment, agency, board, bureau, comm ission, authority, or similar body of an independent sc hool board is authori zed to collect such charges in any manner authorized by law for th e collection of taxes, fees, or assessments owed to the municipal corporation; and (6) A joint or regional authority or inst rumentality which serves one or m ore counties and one or more municipal corporations, two or more counties, or two or more municipal corporations is authorized to collect such charges in any manner authorized by law for the collection of taxes, fees, or assessments owed to the county if a c ounty is involved with the authority or instrumentality or in any m anner authorized by law for the collection of taxes, fees, or assessments owed to the m unicipal corporation if a m unicipal corporation is involved with the authority or instrumentality. This subsection shall apply whether or not th e person requesting the copies has appeared to receive the copies. CREDIT (Ga. L. 1959, p. 88, s 2; Ga. L. 1982, p. 1789, s 1; Ga. L. 1988, p. 243, s 2; Ga. L. 1992, p. 1061, s 6; Ga. L. 1996, p. 313, s 1.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1996 amendment, effective July 1, 1996, added subsection (g). Law reviews. -- For note on 1992 am endment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992). JUDICIAL DECISIONS Intent of General Assem bly was to afford to public at large acce ss to public reco rds, with the e xceptions of certain information which is exem pt from disclosure.

151

Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978). Reasonable access to files. -- A c ustodian of public records com plies with an open records request when he grants reasonable ac cess to the files in hi s custody; he is not required to comb through the files and locate, inspect and produce the documents sought. Felker v. Lukemire, 267 Ga. 296, 477 S.E.2d 23 (1996). Consideration of cost of disclosing information. -- Case was rem anded for further determination of the most econom ical cost for providing information, where the record did not establish that county used the most economical means for providing copies of at least part of the information requested. Trammel v. Martin, 200 Ga. App. 435, 408 S.E.2d 477 (1991). Fees. -- The imposition of a fee is allowed only when the citizen seeking access requests copies of docum ents or requests action by the custodian that involves an unusual administrative cost or burden. Thus, a fee may not be imposed under this section when a citizen seeks only to inspect r ecords that are routinely subj ect to public inspection, such as deeds, city ordinances or zoning maps. McFrugal Rental of Riverdale, Inc. v. Garr, 262 Ga. 369, 418 S.E.2d 60 (1992). Section 15-6-96 prevails over this section and any other part of the Open Records Act to the extent they conf lict with the a bility of superior court clerks to contract to m arket records of their offices for profit. Powell v. VonCanon, 219 Ga. App. 840, 467 S.E.2d 193 (1996). County tax commissioner, tax assessor, an d commissioner could charge no more than the actual cost of a computer disk or tape and an hourly charge for administrative costs of no more than the sa lary of the lowest pa id full-time employee who could perform the request for information on public real estate records. Powell v. VonCanon, 219 Ga. App. 840, 467 S.E.2d 193 (1996). Indigents. -- There is no provision in this Code section for the excusal of the payment of fees upon filing a paup er's affidavit. McBride v. W etherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991). Cited in Northside Realty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978); Atchison v. Hospital Auth., 245 Ga. 494, 265 S.E.2d 801 (1980). OPINIONS OF THE ATTORNEY GENERAL Requests for computer-generated information. -- Information does not fall outside the scope of the Open Records Act because it is stored by means of magnetic tape or diskette rather than in more traditional form. Where the requested information can be retrieved by a minimal computer search, an agency m ust comply. The param eters of the Open Records Act cannot be altered by contract and any such provisions are unenforceable. 1989 Op. Att'y Gen. 89- 32.

152

Prison inmate's medical records. -- Depa rtment of Offender Re habilitation (now Department of Corrections) may supply copies of former inmate's prison medical records to person other than inm ate who i s neither a doctor nor the agent of a hospital. As a condition precedent to delivery of such records, however, the department should demand proof of the requesting party's authority and might also condition delivery upon tender of payment sufficient to cover the departm ent's expenses in copying the m aterial requested. 1973 Op. Att'y Gen. No. 73-77. Sale of surplus voter lists perm issible. -- Since this section authorizes the custodian of public records to m ake a charge agains t anyone desiring a c opy, and since s 21-2-242 makes voter registration lists open to inspect ion by the public, a board of registrars m ay sell surplus voter lists. 1971 Op. Att'y Gen. No. U71-140. No obligation for board of regents. -- Neit her board of regents nor any of its m ember institutions is under any obligation under this section to make or furnish copies of any public record to a person requesting sam e; the board a nd member institutions may prepare and furnish copies to requesting parties free or for a fee, if they want to. 1981 Op. Att'y Gen. No. 81-71. No disclosure of inform ation from records by telephone. -- Records m ay be m ade available for inspection by m embers of th e public who m ight come in and m ake a request, but no such information is to be given by telephone. 1965-66 Op. Att'y Gen. No. 66-88.

RESEARCH REFERENCES Am. Jur. 2d. -- 66 Am. Jur. 2d, Records and Recording Laws, ss 13, 14. C.J.S. -- 76 C.J.S., Records, ss 35, 38. Code, 50-18-71 GA ST 50-18-71

153

APPENDIX O

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 18. STATE PRINTING AND DOCUMENTS ARTICLE 4. INSPECTION OF PUBLIC RECORDS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through

1999 General Assembly 50-18-72 When public disclosure not required; disclosure of exempting legal authority. (a) Public disclosure shall not be required for records that are: (1) Specifically required by the federal government to be kept confidential; (2) Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy; (3) Except as otherwise provided by law, records com piled for law enforcem ent or prosecution purposes to the extent that production of such records would disclose the identity of a conf idential source, disclose confidential investigative or p rosecution material which would endanger the life or physical safety of any person or persons, or disclose the existence of a confidential surveillance or investigation; (4) Records of law enforcem ent, prosecution, or regulatory ag encies in any pending investigation or prosecution of crim inal or unlawful activity, other than initial police arrest reports and initia l incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated; (4.1) Individual Georgia Uniform Moto r Vehicle Accident Reports, except upon the submission of a written statement of need by the reques ting party, such statement to be provided to the custodian of records and to set forth the need for the report pursuant to this Code section; provided, however, that any person or entity whose name or identifying information is contained in a Georgia Uniform Motor Vehicle Accident Report shall be entitled, either personally or through a lawyer or other representative, to receive a copy of such report; and provided, further, that Georgia Uniform Motor Vehicle Accident Reports shall not be available in bulk for inspection or copying by any person absent a written statem ent showing the n eed for each such report pursuant to the requirements of this Code section. For the pur poses of this subsection, the term "need" means that the natu ral person o r legal en tity who is requesting in person or by representative to inspect or copy the Georgia Uniform Motor Vehicle Accident Report: (A) Has a personal, professional, or business connection with a party to the accident; (B) Owns or leases an interes t in property allegedly or actually da maged in the accident; (C) Was allegedly or actually injured by the accident; (D) Was a witness to the accident;

154

(E) Is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident; (F) Is a prosecutor or a publicly employed law enforcement officer; (G) Is alleged to be liable to another party as a result of the accident; (H) Is an attorney stating that he or she needs the requested reports as part of a criminal case, or an investigation of a potential cl aim involving contentions that a roadway, railroad crossing, or intersection is unsafe; (I) Is gathering information as a representative of a news media organization; or (J) Is co nducting research in th e public interest for su ch purposes as accident prevention, prevention of injuries o r damages in accidents, determination of fault in an accident or acciden ts, or other sim ilar purposes; provided, however, th is subparagraph will apply only to accident reports on accidents that occurred more than 30 days prio r to the request and which shall have the nam e, street address, telephone number and driver' s license number redacted; (5) Records that consist of confidential evaluations submitted to, or exam inations prepared by, a governmental agency and prepared in connection with the appointm ent or hiring of a public officer or em ployee; and records consisting of m aterial obtained in investigations related to the suspension, firi ng, or investigation of com plaints against public officers or em ployees until ten days after the sam e has been p resented to the agency or an officer for action o r the investigation is otherwise concluded or terminated, provided that this paragraph sh all not be interpreted to make such investigatory records privileged; (6) Real estate appraisals, engineering or feasibility estimates, or other records made for or by the state or a local agency relative to the acquisition of real property until such time as the property has been acquired or the pr oposed transaction has been term inated or abandoned and engineers' cost estimates and rejected or deferred bid proposals until such time as the final award is m ade, either received or prepared by the Departm ent of Transportation pursuant to Article 4 of Ch apter 2 of Title 32, by a county pursuant to Article 3 of Chapter 4 of Title 32, or by a municipality pursuant to Article 4 of Chapter 4 of Title 32; (7) Notwithstanding any other provision of th is article, an agency shall not be requ ired to release those portions of records whic h would identify persons applying for or under consideration for employment or appointment as executive head of an agency as that term is defined in paragraph (1) of subsection (a) of Code Secti on 50-14-1, or of a unit of the University System of Georgia; provided, however, that at least 14 calendar days prior to the meeting at which final action or vote is to be taken on the position, the agency shall release all documents which came into its po ssession with respect to as m any as three persons under consideration whom the agency has determined to be the best qualified for the position and from among whom the agency intends to fill the pos ition. Prior to the release of these documents, an ag ency may allow such a person to declin e being considered further for the position rather than have documents pertaining to the person released. In that event, the agency shall release the documents of the next most qualified person under consideration who does not decline the position. If an agency has conducted its hiring or appointment process open to the public, it shall not be re quired to delay 14 days to take final action on the position. The ag ency shall not be required to release such records with respect to other applicants or persons under consid eration, except at the

155

request of any such person. Upon request, the hiring agency shall furnish the num ber of applicants and the composition of the lis t by such factors as race and sex. Provided, further, the agency shall not be allo wed to avoid the provisions of this paragraph by the employment of a private person or agency to assist with the search or application process; (8) Related to the provision of staff serv ices to ind ividual members of the Gen eral Assembly by the Legislative and Congressi onal Reapportionment Office, the Senate Research Office, or the House Res earch Office, provided that this exception shall not have any application with respect to records related to the provision of staff services to any committee or sub committee or to any re cords which are or have been previously publicly disclosed by or pursuant to the direc tion of an individual member of the General Assembly; (9) Records that are of historical resear ch value which are given or sold to public archival institutions, public libraries, or libraries of a unit of the Board of Regents of the University System of Georgia when the owne r or donor of s uch records wishes to place restrictions on access to the records. No restriction on access, however, may extend more than 75 years from the date of donation or sale. This exemption sh all not apply to any records prepared in the course of the operati on of state or local governm ents of the State of Georgia; (10) Records that contain inform ation from the D epartment of Natural Resources inventory and register relating to the location and character of a historic property or of historic properties as those terms are defined in Code Sections 12-3-50.1 and 12-3-50.2 if the Department of Natural Resources th rough its Division of Hi storic Preservation determines that disclosure will create a substantial risk of harm, theft, or destruction to the property or properties or the area or p lace where th e property or properties are located; (11) Records that contain site specific information regarding the occurrence of rare species of plants or an imals or the location of sensitiv e natural habitats on public or private property if the Department of Natural Resources d etermines that disclosure will create a substantial risk of harm, theft, or destruction to the species or habitats or the area or place where the species or hab itats are located; provided, however, that the own er or owners of private property upon which rare sp ecies of plants or anim als occur or upon which sensitive natural habitats are located shall be entitled to such inform ation pursuant to this article; (11.1) An individual's social security number and insurance or medical information in personnel records, which may be redacted from such records; (12) Public records containing infor mation that would disclose or might lead to the disclosure of any com ponent in the process used to ex ecute or adopt an electronic signature, if such disclosure would or m ight cause the electronic signature to cease being under the sole control of the person using it . For purposes of this paragraph, the term "electronic signature" has the sam e meaning as that term is defined in Code Sec tion 10-12-3; or (13) Records that would reveal the hom e address or telephone num ber, social security number, or insurance or m edical information of law enforcem ent officers, judges, scientists employed by the Division of Fore nsic Sciences of the Georgia Bureau of Investigation, correctional em ployees, and pr osecutors or identification of imme diate family members or dependents thereof.

156

(b) This article shall not be applicable to: (1) Any trade secrets obtained f rom a person or business ent ity which are of a privileged or confidential natu re and required by law to be subm itted to a governm ent agency or to data, records, or inform ation of a proprietary nature, produced or collected by or for fa culty or staff of state in stitutions of higher learning, or oth er governmental agencies, in the conduct of or as a result of , study or research on comm ercial, scientific, technical, or scholarly issues, whether s ponsored by th e institution alone or in conjunction with a governm ental body or privat e concern, where such data, records, or information has not been publicly released, published, copyrighted, or patented; or (2) Any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of an institution of higher education or any public or private entity supporting o r participating in the activities of an in stitution of hig her education in the conduct of, or as a result of, study or research on m edical, scientific, technical, scholarly, or artistic issues, whet her sponsored by the institution alone or in conjunction with a governm ental body or private en tity until such information is published, patented, otherwise publicly diss eminated, or released to an ag ency whereupon the request must be made to the agency. This subsection applies to, but is not limited to, infor mation provided by participan ts in rese arch, research notes and data, discoveries, research projects, methodologies, protocols, and creative works. These limitations shall not be inter preted by any court of law to include or otherwise exempt from inspection the r ecords of any athletic associ ation or other nonprofit entity promoting intercollegiate athletics. (c) (1) All public records of hospital authorities shall be subject to this article except for those otherwise excepted by this article or any other provision of law. (2) All state officers and em ployees shall have a privile ge to ref use to disclose the identity or personally identifiable information of any person particip ating in research on commercial, scientific, technical, medical, scholarly, or artistic issues conducted by the Department of Human Resources or a stat e institution of higher education w hether sponsored by the institution alone or in conjunction with a governm ental body or private entity. Personally identifiable information shall mean any information which if disclosed might reasonably reveal the identity of su ch person inc luding but no t limited to the person's name, address, and social s ecurity number. The identity of such informant shall not be adm issible in evidence in an y court of the state unless the court finds that the identity of the informant already has been disclosed otherwise. (d) This article shall not be applicable to any application submitted to or any permanent records maintained by a judge of the probate court pursuant to Code Section 16-11-129, relating to licenses to ca rry pistols or revolvers, or pursuant to any other requirem ent for maintaining records relative to the possession of firearm s. This subsection shall not preclude law enforcement agencies from obt aining records relating to licensing and possession of firearms as provided by law. (e) This article shall not be construed to repeal: (1) The attorney-client privilege recognized by state law to the extent that a record pertains to the requesting or giving of legal advice or the disclosure of facts concerning or pertaining to pending or pot ential litigation, settlement, claims, administrative proceedings, or other judicial actions brought or to be brought by or against the agency or any officer or employee; provided, however, attorney-client information may be obtained

157

in a proceeding under Code Section 50-18-73 to prove justification or lack thereof in refusing disclosure of documents under this Code section provided the judge of the court in which said proceed ing is pending shall fi rst determine by an in camera examination that such disclosure would be relevant on that issue; (2) The confidentiality of attorney work product; or (3) State laws making certain tax matters confidential. (f) (1) As used in this article, the term: (A) "Computer program" means a set of instructions, statements, or related data that, in actual or modified form, is capable of causing a computer or computer system to perform specified functions. (B) "Computer software" means one or more computer programs, existing in any form, or any associated operational procedures, manuals, or other documentation. (2) This article shall not be applicable to any computer program or computer software used or maintained in the course of operation of a public office or agency. (g) This Code section shall be interpreted narrowly so as to exclude from disclosure only that portion of a pu blic record to which an exclusion is directly applicable. It shall be the duty of the agency having custody of a record to provide all other portions of a record for public inspection or copying. (h) Within the three b usiness days applicable to response to a request for access to records under this article, the public officer or agency having control of such record or records, if access to such record or records is denied in whole or in part, shall specify in writing the specific legal authority exempting such record or records from disclosure, by Code section, subsection, and paragraph. N o addition to or am endment of such designation shall be permitted thereafter or in any proceeding to enforce the terms of this article; provided, however, that such desi gnation may be amended or supplemented one time within five days of discovery of an error in such designation or within five days of the institution of an action to enforce this chapter, whichever is sooner; provided, further, that the right to amend or supplement based upon discovery of an error may be exercised on only one occasion. In the event that such designation includes provisions not relevant to the subject matter of the request, costs and reasonable attorney's fees may be awarded pursuant to Code Section 50-18-73. CREDIT (Ga. L. 1967, p. 455, s 1; Ga. L. 1970, p. 163, s 1; Code 1981, s 50-18-72, enacted by Ga. L. 1982, p. 1789, s 1; Ga. L. 1986, p. 1090, s 2; Ga. L. 1987, p. 377, s 1; Ga. L. 1988, p. 13, s 50; Ga. L. 1988, p. 243, s 3; Ga. L. 1989, p. 553, s 2; Ga. L. 1989, p. 827, s 1; Ga. L. 1990, p. 341, s 1; Ga . L. 1992, p. 1061, s 8; Ga. L. 1993, p. 968, s 1; Ga. L. 1993, p. 1336, s 1; Ga. L. 1993, p. 1669, s 1; Ga. L. 1995, p. 704, s 1; Ga. L. 1996, p. 6, s 50; Ga. L. 1997, p. 1052, s 2; Ga. L. 1998, p. 1652, s 1; Ga. L. 1999, p. 552, ss 4, 4.1; Ga. L. 1999, p. 809, ss 4, 5; Ga. L. 1999, p. 1222, ss 1, 2.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS

158

The 1996 amendment, effective February 12, 1996, part of an Act to correct errors and omissions in the Code , substituted "Division of Historic Preser vation" for "Historic Preservation Section" in paragraph (10) of subsection (a). The 1997 amendment, effective April 22, 1997, in subsection (a), deleted "or" at the end of paragraph (10), substituted "; or" for a pe riod at the end of para graph (11), and added paragraph (12). The 1998 amendment, effective July 1, 1998, in subsection (a), deleted "or" at the end of paragraph (11), substituted a sem icolon for a period and inserted "or" at the end of paragraph (12), and added paragraph (13). The 1999 am endments. -- The first 1999 am endment, effective July 1, 1999, added paragraph (11.1) of subsection (a) and added subsection (h). The second 1999 amendment, effective J uly 1, 1999 , in subs ection (a), sub stituted "and initial inciden t reports;" for ", accident reports, and incident reports;" in the middle of paragraph (4) and added paragraph (4.1). The third 1999 a mendment, effective July 1, 1999, in subsection (a), in paragraph (6), deleted "Departm ent of Transportation" preceding "engineers"' , substituted "until such time as the final award is made," for ", except for the total amount of the bid,", inserted "by the Departm ent of Transportation", and added the language beginning ", by a county pursuant to" at the end, and added paragraph (11.1). Cross references. -- Privilege from testifying generally, s 24-9-20 et seq. Confidentiality of records of m edical peer review groups, s 31-7-133. C onfidentiality of portions of license applications directed to joint- secretary, s 43-1-2(k). Code commission notes. -- Pursuant to Code Section 28-9-5, in 1988, a comm a was substituted for a se micolon following "conclu ded or terminated" in paragraph (5) of subsection (a). Pursuant to Code Section 28-9-5, in 1993, a comma was added following "scholarly" in the first sentence of paragraph (2) of subsection (b). Pursuant to Code Section 28-9-5, in 1995, "Historic Preser vation Section" was substituted for "Division of Historic Preservation" in paragraph (10) of subsection (a). Pursuant to Code Section 28-9-5, in 1999, in subsection (a), a comm a was inserted in two places in the introductory paragraph of paragraph (4.1) and punctuation was revised at the end of subparagraph (a)(4.1)(J). Editor's notes. -- Ga. L. 1999, p. 809, s 1, not codified by the General Assembly, provides that the social security numbers on dr iver's licenses and other pertinent personal identifying information appearing on Georgi a Uniform Motor Vehicle Accident Reports is often used for fraudulent purposes and for invading the privacy of individuals; therefore, access to the Ge orgia Uniform Motor Vehicle Accident Reports should be restricted. Ga. L. 1999, p. 1222 and Ga. L. 1999, p. 552 both amended this Code section by adding new paragraph (11.1) in subsect ion (a). However, the para graph (11.1) added by Ga. L. 1999, p. 1222 supersedes Ga. L. 1999, p. 552. Th is Code section, as set out above,

159

contains the paragraph (11.1) of subection (a) as added by Ga. L. 1999, p. 1222. Law reviews. -- For article comm enting on the 1997 amendment of this section, see 14 Ga. L. Rev. 25 (1997). For note on 1989 am endment to this Code section, see 6 Ga. St . U.L. Rev. 324 (1989). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992). For comment, "Confidentiality and Diss emination of Personal Inf ormation: An Examination of State Laws Governing Data Protection," see 41 Emory L.J. 1185 (1992). JUDICIAL DECISIONS Intent of General Assem bly was to afford to public at large acce ss to public reco rds, with the exception s of certain inf ormation which this article exem pts from disclosure. Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 241 S.E.2d 196 (1978). This section manifests the intent of the General Assembly that reports which include the elements of the tort of invasion of privacy are to be exempted from the disclosure requirements of this article; the right of privacy, protectable in tort, however extends only to unnecessary public scrutiny. Athens Observer, Inc. v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980). Construction of statutory exemptions. -- Any purported statutory exem ption from disclosure under the Open Records Act m ust be narrowly construed. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992); C ity of Brunswick v. Atlanta Journal & Constitution, 214 Ga. App. 150, 447 S.E.2d 41 (1994). Inquiries under Open Records Act. -- In suits under the Open R ecords Act, the first inquiry is whether the records are "public records"; if they are, the second inquiry is whether they are protected from disclosure under the list of exemptions or under any other statute; if they are not exempt, then the question is whether they should be protected by court order, but only if there is a clai m that disclosure would invade individual privacy. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992). Records open to public inspection unless closed by specific exception. -- The underlying implication of this section is that all records of all state, county, and municipal authorities are open to public inspection unless closed by a specific exception, and that the records of hospital authorities are not in any respect different from those of other authorities when the issue is one of whether the particular record is open to public inspection under the general provisions of this article or is closed to public insp ection under a specific statutory exception. Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119, appeal dismissed and cert. denied, 446 U.S. 979, 100 S. Ct. 2958, 64 L. Ed. 2d 836 (1980). Construed with 42 USC s 1395bb(a). -- There is no requirement under this section that a report generated by or used by the state for st ate purposes be exem pted from disclosure merely because that report would be kept confidential if generated or used by the federal government for federal purposes. Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396

160

S.E.2d 488 (1990). Right to privacy determined by examining tort of invasion of privacy. -- The invasion of personal privacy encompassed as an exception to the right of the public to access is to be determined by an exam ination of the tort of invasion of privacy. Harris v. Cox Enters., Inc., 256 Ga. 299, 348 S.E.2d 448 (1986). Limits of right of privacy. -- The right of privacy does not prohibit the communication of any m atter though of a private natu re, when the publication is m ade under circumstances which would render it a privileged communication according to the law of libel and slander. Dennis v. Adcock, 138 Ga. App. 425, 226 S.E.2d 292 (1976). Privacy rights of a private transporta tion company and school bus drivers could not outweigh the public interest in the disclo sure of infor mation in personnel records regarding the drivers. H ackworth v. Board of Educ., 214 Ga. App. 17, 447 S.E.2d 78 (1994). Confidential tax inform ation not disclosa ble. -- Conf idential tax in formation in an invesitgative file of the Attorney General was not subject to disclosure under this section. Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995). Law enforcement records. -- In cident reports of a city police depa rtment were exempt from disclosure under paragra ph (3) of subsection (a) to the extent they contained confidential information, even though the reports would not be exem pted under paragraph (4) of subs ection (a) as not be ing part of a pendi ng investigation or prosecution. Atlanta Jo urnal & Constitu tion v. City of Br unswick, 265 Ga. 413, 457 S.E.2d 176 (1995). In an action by newspapers for disclosure of certain inc ident reports of a city polic e department, it was not error to bar the news papers from an ex parte hearing held to determine the exten t to which the reports m ight contain confidential information that would be exem pt from disclosure; affirm ing City of Brunswick v. Atlanta Journal & Constitution, 214 Ga. App. 150, 447 S.E.2d 41 ( 1994). Atlanta Journal & Constitution v. City of Brunswick, 265 Ga. 413, 457 S.E.2d 176 (1995). Incident reports maintained by a city on a series of sexual assau lts could be exempted from disclosure if disclosure would reveal confidential info rmation or endanger the lives of various individuals. City of Brunswick v. Atlanta Jou rnal & Constitu tion, 214 Ga. App. 150, 447 S.E.2d 41 (1994), aff'd, 265 Ga. 413, 457 S.E.2d 176 (1995). Police reports concerning rape were not protected by th e "similar file" exemption of paragraph (a)(2), because the do cuments were express ly governed by paragraph (a)(4) and concerned a subject of "legitimate public inquiry." Doe v. Board of Regents, 215 Ga. App. 684, 452 S.E.2d 776 (1994). University police reports concerning inci dent of alleged rape were public records obtainable by a student newspaper; the repor ts were not exem pt under paragraph (a)(4), since they were not the subj ect of a pending investigation and involved a m atter which had been terminated. Doe v. Board of Regents, 215 Ga. App. 684, 452 S.E.2d 776 (1994).

161

Use of records in relevant court proceedings. -- Although unauthor ized publicity of the contents of hospital records, a patient's health, his anatomical debilities, and the opinions, diagnoses, and tests of his docto rs would fall within the restri ction of this section, this section does not preclude the use of the record s in relevant court proceedings, nor does it provide a basis for a tort actio n for invasion of privacy when such m aterial is admitted into evidence. Dennis v. Adcock, 138 Ga. App. 425, 226 S.E.2d 292 (1976). Discovery request of voir dire notes prem ature. -- Defendant' s petition for a writ of mandamus pursuant to this act seeking discovery of district attorney's voir dire notes was premature, as he still retained the right to do so in his habeas pro ceeding. Hall v. Madison, 263 Ga. 73, 428 S.E.2d 345 (1993). Private information protected. -- Various factors weigh on the question of whether personal privacy protects inform ation from disclosure. Among other things, the court should consider whether the inform ation is unsubstantiated and based on hearsay, whether it does not relate or relates only incidentally to the subjec t matter of the public record, and the rem oteness in time of the even ts referred to. Harris v. Cox Enters., Inc., 256 Ga. 299, 348 S.E.2d 448 (1986). Eminent domain cases. -- Property has been "acquired" for purposes of the exem ption set forth in subsection (a)(6) on ly after condemnation proceedings, including any litigation, have been completed. Real estate appraisals obtained by the Departm ent of Transportation were not subjec t to disclosure when only th e declaration of taking was filed and money was paid into court. Black v. Georgia DOT, 262 Ga. 342, 417 S.E.2d 655 (1992). The pending-prosecution exemption of paragraph (a)(4) refers to imminent adjudicatory proceedings of finite duration. The last phras e of that exemption is but one example of when a prosecution should not be considered "pending" for purposes of the exception. Parker v. Lee, 259 Ga. 195, 378 S.E.2d 677 (1989). Invasion of privacy rights of m urder victims. -- In determining whether an invasion of the privacy rights of murder victim s is wa rranted or unwarranted, the question can be stated in terms of whether the p rivacy interests of the d eceased are ou tweighed by the interests of the public favor ing disclosure. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987). "Investigative notes" not releasable. -- "Investigative notes" are not within the category of law enforcement and prosecutorial documents authorized for release under the Georgia Open Records Act; investigative notes are "no tes" not "reports," and cannot be classified as police arrest reports, accident reports, or incident reports. Lebis v. State, 212 Ga. App. 481, 442 S.E.2d 786 (1994). Investigatory reports. -- An investigatory report concerning cl aims of m isconduct against an employee of the State Board of Pa rdons and Paroles was a public record, and

162

was not exempt from disclosure under this section. Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998). Retrial possibility not grounds f or nondisclosure of investigatory files. -- When a murder conviction and death sentence resulting from the prosecution have been affirm ed on appeal, but a rape conviction has been reve rsed on a ground that leaves the state free to retry the defendant, the possible retrial of the defendant does not warrant nondisclosure to him of criminal investigatory files, wher e the agency cu stodians of the files at issue failed to carry th eir burden of showing an imminent proceeding on the rape charge against defendant to exem pt such files from disclosure pursuant to paragraph (a)(4). Parker v. Lee, 259 Ga. 195, 378 S.E.2d 677 (1989). Tenants' rights of privacy protected from disclosure of certain inform ation. -- This section forbids disclosure to the general public from housing authority records or files of any information which would invade the cons titutional, statutory, or common-law rights of the tenants to privacy. Doe v. Sears, 245 Ga. 83, 263 S.E.2d 119, appeal dism issed and cert. denied, 446 U.S. 979, 100 S. Ct. 2958, 64 L. Ed. 2d 836 (1980). Ad valorem property tax records not confid ential. -- Ad valorem property tax records are not similar to medical records for the purpo se of this section and are not required to be kept confidential. Pensyl v. Peach County, 252 Ga. 450, 314 S.E.2d 434 (1984). County hospital em ployees' information disclosure. -- The disclosure of the na mes, salaries, and job titles of county hospital employees is not an invasion of personal privacy as contemplated by the General Assembly to permit an exemption from disclosure, nor is the public interes t in disclosur e outweighed by benefits to the hospital accruing from nondisclosure. Richmond County H osp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984). Mere placement of records of Georgia Bure au of Investigation's investigation in the personnel file of an investig ated public em ployee did not transform the records int o personnel-related records. Irv in v. Macon Tel. Publishi ng Co., 253 Ga. 43, 316 S.E.2d 449 (1984). Records of Georgia DOT. -- Neither the "state matter" privilege nor the "secret of state" privilege exempted cost estimates of the DOT from disclosure under the Open Records Act. Hardaway Co. v. Rives, 262 Ga. 631, 422 S.E.2d 854 (1992). Applications for position of university president. -- Applications submitted by candidates for the position of Georg ia State University p resident, and the resumes and vitae, which were products of the applican ts themselves, although they were m aterials upon which, in part, "confidential evaluations" were based, were not evaluations. Hence they were not exempt from disclosure. Board of Regents v. Atlanta Journal, 259 Ga. 214, 378 S.E.2d 305 (1989). Records containing city cellular telephone bills, including num bers assigned to city

163

cellular telephones, were not exem pt from disclosure under paragraph (2) of subsection (a). Dortch v. Atlanta Journal, 261 Ga. 350, 405 S.E.2d 43 (1991). Cited in Northside Realty Assocs. v. Community Relations Comm'n, 240 Ga. 432, 241 S.E.2d 189 (1978); Atchison v. Hospital Auth., 245 Ga. 494, 265 S.E.2d 801 (1980); City of Atlanta v. Pacific & S. Co., 257 Ga. 587, 361 S.E.2d 484 (1987); McBride v. Wetherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991). OPINIONS OF THE ATTORNEY GENERAL Trade secrets and confidential busine ss information. -- Trade secrets and other confidential business in formation received by the state en ergy office from the federal government and businesses in the private sector are not within the purview of this article, and may be treated as confidential by that state agency. 1974 Op. Att' y Gen. No. U74-113. Disclosure requirements applicable to state trade secrets. -- The trade secrets of any state department, agency, board, bureau , commission or authority are not exempt from public disclosure under the Open R ecords Act, although inform ation in the possession of such entity which is a trade secret of others must be protected from disclosure. If it is not clear that the requested information constitutes a trade secret of another, the entity contending that the information is a trade secret m ay exercise its rights to protec t the inf ormation pursuant to O.C.G.A. s 10-1-762. 1994 Op. Att'y Gen. No. 94- 15. Former prison inm ate's prison m edical records. -- Departm ent of Offender Rehabilitation (now Corrections) m ay supply c opies of form er inmate's prison m edical records to person other than inmate who is neither a doctor nor the agent of a hospital. As a condition precedent to deliv ery of such records, however, the d epartment should demand proof of the requesting party' s authority and might also condition delivery upon tender of payment sufficient to cover the department's expenses in copying the material requested. 1973 Op. Att'y Gen. No. 73-77. Reports prepared in evaluating disability claim. -- If the m edical board of the Employees' Retirement System determines that the exam ining physician has m et the criteria of s 31-33-2(c) in recommending nondisclosure of m edical records prepared in the evaluation of a claim for di sability retirement benefits, it is app ropriate to refuse copies of those reports to the applican t who was exam ined. 1992 Op. Att' y Gen. No. 92-19. Department of Natural Resources' satellite imagery database. -- The Department of Natural Resources is not required to provide public access to raw or unenhanced satellite data purchased from EOSAT (a firm that markets unenhanced satellite data), but it must provide public access to the enhanced databa se of satellite imagery. 1992 Op. Att'y Gen. No. 92-13. Voter registration cards. -- Construing s 21-2-242 with ss 21-2-217(a), 21-2- 234, and

164

50-18-70 et seq., registration card s must be subject to disclo sure in accordance with the provisions of the Open Records Act. However, in accord ance with the federal Priv acy Act of 1974, Section 7(b) (5 U.S.C. s 552 as note), if a registrar is going to require disclosure of a social secu rity number on a voter regi stration card, the individual registering to vote should be inform ed as to whether the disclosure is m andatory or voluntary, under what statutory authority the d isclosure is requested, and the uses to which the disclosure will be put. 1990 Op. Att'y Gen. No. 90-5. The social security number of a voter is required by s 21-2-217(a) to be recorded on a voter registration card, if it is known at the time of application, and must be disclosed under an Open Records Act request. 1990 Op. Att'y Gen. No. 90-5. Voter's unlisted telephone number included on voter registration card. -- Voter registrars have no authority to request the inclusion of a telephone nu mber on a voter registration card, and in the absence of statuto ry authority either to r equire or to request that an elector provide a telephone num ber, whether listed or unli sted, for a voter registration card, the disclosure of an unlisted num ber pursuant to an Open Records Act request m ay constitute an unwarranted invasion of privacy. Hence, a voter' s unlisted telephone number should not be disclosed by voter regi strars under an Open Records Act request. 1990 Op. Att'y Gen. No. 90-5. Prerequisites to disclosure of inform ation in medical files. -- No inf ormation contained in confidential medical files should be rele ased to a requesting party, unless som e prior assurance is given that the reque sting party is either the subject of the file in question or that he has in fact b een authorized by that person to receive the information which he seeks. 1973 Op. Att'y Gen. No. 73-77. Subsequent Injury Trust Fund Board m eetings. -- The portion of Subsequent Injury Trust Fund Board m eetings in w hich the me dical and rehabilitation records of an individual are discussed are not subject to th e Open Meetings Law. 1991 Op. Att 'y Gen. No. 91-8. Public project records exempt from disclosure. -- W hen a public agency is assembling more than one parcel of real p roperty for a public pro ject, records relative to that "transaction" and "property" as a whole are exem pt from disclosure under paragraph (a)(6) until all the property to be acquired is acquired or is abandoned or terminated from the project. 1995 Op. Att'y Gen. No. 95-10. Community development block grant prog ram information. -- Information provided to the Department of Community Af fairs in connection with the comm unity development block grant program is not exempt from disclosure under this section unless such information constitutes a trade secret. 1989 Op. Att'y Gen. 89-35. Burden of explaining why public records not subject to disclosure. -- If there is a request for identifiable public records, the burden is cast upon the custodian of those records to explain why the records should not be disclosed. 1990 Op. Att'y Gen. No. 90-5.

165

RESEARCH REFERENCES Am. Jur. 2d. -- 66 Am. Jur. 2d, Records and Recording Laws, s 36 et seq. ALR. -- Validity, construction, and applicati on of statutory provisions relating to public access to police records, 82 ALR3d 19. When are government records "similar files" exempt from disclosure under Freedom of Information Act provision (5 USCS s 552(b)(6 )) exempting certain personnel, m edical, and "similar" files, 106 ALR Fed. 94. What is agency subject to Privacy Act Provisions (5 USCA s 552a), 150 ALR Fed. 521. What are "reco rds" of agency which m ust be m ade available under Freedom of Information Act (5 USCA s 552(a)(3)), 153 ALR Fed. 571. Code, 50-18-72 GA ST 50-18-72

166

APPENDIX P

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 18. STATE PRINTING AND DOCUMENTS ARTICLE 4. INSPECTION OF PUBLIC RECORDS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through

1999 General Assembly 50-18-73 Jurisdiction to enforce article; attorney's fees and litigation expenses; good faith reliance as defense to action. (a) The superior courts of this state sh all have jurisdiction in law a nd in equ ity to entertain actions against persons or agencies having custody of records open to the public under this article to enf orce compliance with the provisions of this article. Such actions may be brought by any person, firm , corporation, or oth er entity. In addition, the Attorney General shall have authority to bring such actions, either civil or criminal, in his or her discretion as may be appropriate to enforce compliance with this article. (b) In any action brought to enforce the pr ovisions of this chapte r in which the c ourt determines that either party acted without substantial justification either in not complying with this chapter or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the co mplaining party reasonable attorney's fees and other litigation costs reasonably incurre d. Whether the position of the com plaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought. (c) Any agency or person who provides acc ess to information in good faith reliance on the requirements of this chap ter shall not be lia ble in any action on account of having provided access to such information. CREDIT (Code 1981, s 50-18-73, enacted by Ga. L. 1982, p. 1789, s 1; Ga. L. 1988, p. 243, s 4; Ga. L. 1992, p. 1061, s 9; Ga. L. 1998, p. 595, s 2.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1998 amendment, effective July 1, 1998, added the third sentence in subsection (a). Code commission notes. -- Pursuant to Code Section 28-9-5, in 1992, "it" was substituted for "if" in subsection (b).

167

Law reviews. -- For review of 1998 legisl ation relating to state government, see 15 Ga. St. U. L. Rev. 242 (1998). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 344 (1992). JUDICIAL DECISIONS Actions to enjoin disclosure of information authorized. -- The Open Records A ct (s 50-18-70 et seq.) provides the ju risdictional basis for a cause of action by individuals to enjoin the disclosure of legally protect ed information. Bowers v. Shelton, 265 Ga. 247, 453 S.E.2d 741 (1995). The award of attorney's fees is discretiona ry under this section and the decision of the superior court will be interfered with only where this discre tion has been ab used. Richmond County Hosp. Auth. v. Southeas tern Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984); GMS Air Conditioning, Inc. v. Department of Human Resources, 201 Ga. App. 136, 410 S.E.2d 341 (1991). Compensatory and punitive damages unauthorized. -- This Code section author izes an award of attorney' s fees and expenses of litigation in actions brough t to enforce the statute only if the court determ ines that the actio n constituting a violation of the statute was completely without merit as to law or fact. Compensatory and/or punitive damages are not authorized. McBride v. Wetherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991). Cited in Pensyl v. Peach County, 252 Ga. 450, 314 S.E.2d 434 (1984). Code, 50-18-73 GA ST 50-18-73

168

APPENDIX Q

CODE OF GEORGIA TITLE 50. STATE GOVERNMENT

CHAPTER 18. STATE PRINTING AND DOCUMENTS ARTICLE 4. INSPECTION OF PUBLIC RECORDS

Copyright (C) 1982-1999 by The State of Georgia. All rights reserved. Current through

1999 General Assembly 50-18-74 Penalty for violations; procedure for commencement of prosecution. (a) Any person knowingly and willfully violating the provisions of this article by failing or refusing to provide access to records not su bject to exemption from this article or by failing or refusing to provide access to such records within the time limits set forth in this article shall be guilty of a m isdemeanor and upon conviction shall be punished by a fine not to exceed $100.00. (b) A prosecution under this Code secti on may only be comm enced by issuance of a citation in the sam e manner as an arres t warrant for a peace officer pursuant to Code Section 17-4-40, which citation shall be personally served upon the accused. The defendant shall not be arrested prior to the time of trial, except that a defendant who fails to appear for arraignment or trial may thereafter be arrested pursuant to a bench warrant and required to post a bond for his or her future appearance. CREDIT (Code 1981, s 50-18-74, enacted by Ga. L. 1999, p. 552, s 5.) <General Materials (GM) - References, Annotations, or Tables> NOTES, REFERENCES, AND ANNOTATIONS The 1999 amendment, effective July 1, 1999, s ubstituted the present provisions of this Code section for "Reserved." Editor's notes. -- The former Code section, relating to unlawful refusal to provide access to public records or to allow copying of such records, was based on Ga. L. 1982, p. 1789, s 1. The former Code section, relating to unlawful refusal to provide access to public records or to allow copying of such records, was based on Ga. L. 1982, p. 1789, s 1, and was repealed by Ga. L. 1992, p. 1061, s 10.

169

Code, 50-18-74 GA ST 50-18-74

170

Georgia's Historic Preservation Division: Protecting Historic and Archaeological Resources Throughout Georgia, people in cities, towns and rural areas use historic preservation as an extraordinary tool for planning, community revitalization and economic development. Preservation activities result in historic buildings, districts and archaeological sites being recognized for their significance and returned to active use within the community. Since 1966, the National Historic Preservation Act, coupled with state and local legislation, has provided an effective framework of laws and programs at the national, state and local levels to assist citizens with their preservation goals and to protect historic and archaeological resources for this and future generations. Within the Georgia Department of Natural Resources, the Historic Preservation Division serves as the state historic preservation office, the state agency responsible for implementing the national program in Georgia. Each state's historic preservation office receives financial assistance through the Historic Preservation Fund of the National Park Service, Department of the Interior, and provides matching state funds to carry out the nation's preservation partnership. The National Park Service establishes broad policies, programs and standards for state and local participation in the national program. Preservation incentives, such as the National Register of Historic Places, tax credits and grants, as well as compliance requirements established through the National Historic Preservation Act and other federal legislation, encourage preservation activity. States enact programs and services that complement the national program and address the special character and needs of their state. In Georgia, the General Assembly mandates a number of specific preservation programs such as a state property tax freeze, state rehabilitation grants, archaeology protection and stewardship of state-owned buildings.

With the advice and direction of the Board of Natural Resources and the Georgia National Register Review Board, the Historic Preservation Division administers the following programs: historic structures and archaeological site surveys National and Georgia Registers of Historic Places matching federal and state grants for rehabilitation and preservation activities federal and state tax incentives for rehabilitation of historic properties federal and state compliance affecting historic resources archaeology protection and education programs certified local governments community preservation planning assistance regional preservation planning services comprehensive statewide preservation planning architectural technical assistance African American programs preservation information and education

171

The Historic Preservation Division actively works in partnership with federal and state agencies, local governments, preservation organizations, community groups and individuals to achieve a greater appreciation and use of historic resources in the context of everyday life. Working at the state level, the Historic Preservation Division helps bring together national, regional and local interests to support community and economic development throughout Georgia. Georgia's state preservation program encourages regional and local planning, neighborhood conservation, downtown revitalization, economic development, heritage tourism and archaeological site protection. During times of rapid change, when historic and archaeological sites are too often lost, communities realize the benefits of preserving historic resources. When working with public agencies, nonprofit organizations, businesses and others, the Historic Preservation Division encourages the identification, recognition and use of historic resources. By emphasizing incentives and partnerships, along with regulatory compliance, a broad range of services and programs are available to support awareness and innovation in historic preservation. Saving, re-using and learning about our remaining historic resources gives us a greater awareness of our state's history and an appreciation of its unique qualities. Rehabilitated historic buildings increase the tax base, enhance property values, generate sales of goods and services, and create jobs. Preserving archaeological sites and artifacts provides valuable scientific, educational and recreational benefits. Thanks to an active statewide grassroots and professional preservation network, Georgia consistently ranks as a leader in preservation activities, especially in the number of National Register listings, tax projects and certified local governments. The Historic Preservation Division supports these accomplishments with a professional staff, including architects, planners, historians, archaeologists and program administrators. Information about individual program areas, special projects, "how to" preservation information and technical assistance is available. Please contact the Historic Preservation Division for more information on how to make your community a better place through the preservation of historic resources.

For more information, visit our Web site at www.gashpo.org or call 404-656-2840.

revised December 2009

172

Certified Local Government Program: Preservation Through Local Planning Any historic resource is important in the history of a particular community. Preservation activity occurs first at the local level; therefore, a community is in the best position to identify and protect its own resources. The Certified Local Government (CLG) program assists local governments with integrating historic preservation concerns with local planning decisions. Joining the CLG program is an important and effective way to preserve Georgia's historic places. The Historic Preservation Division (HPD) of the Georgia Department of Natural Resources coordinates the CLG program through the Public Service and Outreach Office at the University of Georgia. This partnership provides assistance to CLGs and historic preservation commissions throughout Georgia. Historic preservation has been a part of local government planning in this country since the 1930s. However, only a few communities took advantage of this early opportunity to include preservation as part of their planning process. With the National Historic Preservation Act of 1966, a federal and state partnership was initiated that developed into a nationwide preservation program. As this program matured, the need for relating federal and state activities to local efforts became apparent. The CLG program extends the federal and state preservation partnership to the local level. It enhances the local government role in preservation by strengthening a community’s preservation program and its link with HPD. In Georgia, the CLG program builds upon the longstanding working relationship between HPD and the local governments by expanding the scope of local responsibilities and opportunities for preservation. Any city, town, or county that has enacted a historic preservation ordinance, enforces that ordinance through a local preservation commission, and has met requirements outlined in the Procedures for Georgia’s Certified Local Government Program is eligible to become a CLG.

What are the benefits of becoming a CLG? • Once certified, a local government becomes eligible to apply for federal historic preservation grant funds that are available only to CLGs. • A CLG participates directly in the National Register of Historic Places program by reviewing local nominations prior to their consideration by the Georgia National Register Review Board. • Opportunities for technical assistance in historic preservation are available in the form of training sessions, information material, statewide meetings, workshops and conferences. • Communication and coordination are increased among local, state, and federal preservation activities, as well as with other CLGs.

173

There are five broad standards that must be met by a local government in order to become a CLG:

1. Enforce appropriate state or local legislation for the designation and protection of historic properties. A local government must adopt a preservation ordinance that complies with the Georgia Historic Preservation Act, the state’s enabling legislation for designating and protecting historic buildings, sites, and neighborhoods.

2. Establish an adequate and qualified historic preservation review commission by state or

local legislation. A preservation review commission is a locally appointed board that reviews design changes in designated historic districts in order to maintain the district’s special and irreplaceable qualities.

3. Maintain a system for survey and inventory of historic properties that furthers the

purpose of the National Historic Preservation Act. A survey identifies properties that have historic significance and are therefore worthy of protection. The survey is the basis for the identification, designation, and protection of local historic districts and properties.

4. Provide for adequate public participation in the local historic preservation program,

including the process for recommending properties for nomination to the National Register of Historic Places. A local government must encourage the public’s participation in its preservation efforts by having meetings that are open to all local residents, by sponsoring community-wide information and education activities and by encouraging National Register nominations.

5. Satisfactorily perform the responsibilities delegated to it under the National Historic

Preservation Act. HPD works closely with a CLG to help it meet local needs and interests and to fully participate in the CLG program.

For more information, visit our Web site at www.gashpo.org or contact

Leigh Burns, Certified Local Government Coordinator at, 404-651-5181 or Leigh.Burns@dnr.state.ga.us

revised December 2009

174

What’s the Difference Between a National Register Historic District and a Local Historic District?

A National Register District Identifies; a Local District Protects. Both National Register district and locally designated historic districts can be used as effective preservation tools, either independently or together, to help preserve a community’s historic resources. For example, the National Register program might be used as a convenient and credible way to identify a community’s historic resources, followed by local district designation, which would further protect and enhance those resources through the process of design review. Conversely, a local survey to establish a local historic district might also be used as the basis for a National Register district nomination, which would afford additional preservation incentives, including rehabilitation tax credits, to properties protected in the local district. Local district designation might also be used to selectively protect portions of National Register districts considered especially significant to a community or subject to particularly strong development pressures. Local designation also might be afforded to an area larger than a National Register district to provide an even greater degree of protection to the historic resources within the National Register district. Some community’s preservation needs may be met entirely with either a locally designated district or a National Register district; there are many examples in Georgia of both situations. Other communities may believe that a package involving both types of districts works best. Remember: local districts and National Register districts are different, but complementary, and can work effectively by themselves or together to meet a community’s historic preservation needs.

For further information, visit our Web site at www.gashpo.org or contact: Gretchen Brock, National Register & Survey Program Manager

at 404-651-6782 or gretchen.brock@dnr.state.ga.us or Leigh Burns, Preservation Planner & Certified Local Government Coordinator

at 404-651-5181 or leigh.burns@dnr.state.ga.us . Following is a detailed analysis of what both National Register districts and local historic districts are and the ways in which they can be used as preservation planning tool.

175

National Register District A National Register historic district is a historic district that is listed in the National Register of Historic Places. The National Register is our country’s official list of historic places worthy of preservation. It includes individual buildings, structures, sites, and objects as well as historic districts that are historically, architecturally, or archaeologically significant. National Register listing recognizes the significance of properties and districts. By doing so, it identifies significant historic resources in a community. Boundaries of National Register districts are tightly drawn to encompass only concentrated areas of historic properties. Information compiled to nominate a historic district can be used in a variety of planning and development activities. National Register listing also makes available specific preservation incentives and provides a limited degree of protection from the effects of federally funded, licensed, or permitted activities. The National Register is maintained by the U.S. Department of the Interior. In Georgia, the National Register program is administered by the Historic Preservation Division of the Department of Natural Resources. Districts and other properties are listed in the National Register through a 17-step process that involves identification, documentation, and evaluation. National Register historic districts most commonly encompass central business districts, residential neighborhoods, industrial areas, rural areas, and occasionally, entire communities.

Local Historic District A local historic district is a district designated by a local ordinance, which falls under the jurisdiction of a local historic preservation review commission. A local historic district is generally “overlaid” on the existing zoning classifications in a community. Therefore, a local district commission deals only with the appearance of the district, not with the uses of those properties. According to the 1980 Georgia Historic Preservation Act which makes such local designations possible, a local historic district is a “geographically definable area, urban or rural, which contains structures, sites, and/or works of art which have special historical or aesthetic interest or value; represent one or more periods or styles of architecture typical of one or more eras in the history of the municipality, county, state, or region; and cause that area to constitute a visibly perceptible section of the community.” The designation of a local district protects the significant properties and the historic character of the district. It provides communities with the means to make sure that growth, development, and change take place in ways that respect the important architectural, historical, and environmental characteristics within a district. Local designation encourages sensitive development in the district and discourages unsympathetic changes from occurring. This happens through a process called design review, whereby the historic preservation commission approves major changes that are planned for the district and issues Certificates of Appropriateness which allow the proposed changes to take place.

176

National Register District Identifies significant properties and districts for general planning purposes Analyzes and assesses the historic character and quality of the district Designates historic areas based on uniform national criteria and procedures Sets district boundaries tightly, based on the actual distribution pattern of intact historic properties in the area Makes available specific federal and state tax incentives for preservation purposes Provides a limited degree of protection from the effects of federally assisted undertakings Qualifies property owners for federal and state grants for preservation purposes, when funds are available Does not restrict the use or disposition of property or obligate private property owners in any way Does not require conformance to design guidelines or preservation standards when property is rehabilitated unless specific preservation incentives (tax credits, grants) are involved Does not affect state and local government activities Does not prevent the demolition of historic buildings and structures within designated areas

Local Historic District Protects a community’s historic properties and areas through a design review process Protects the historic character and quality of the district with specific design controls Designates historic areas on the basis of local criteria and local procedures Sets district boundaries based on the distribution pattern of historic resources plus other preservation and community planning considerations Provides no tax incentives for preservation purposes unless such are provided by local tax law Provides no additional protection from the effects of federally assisted undertakings Does not qualify property owners for federal or state grants for preservation purposes Does not restrict the use to which property is put in the district or require property owners to make improvements to their property Requires local historic preservation commission review and approval, based on conformance to local design guidelines, before a building permit is issued for any “material changes” in appearance to the district Does not affect federal, state, or local government activities Provides for review of proposed demolitions within designated areas; may prevent or delay proposed demolitions for specific time periods to allow for preservation alternatives. revised March 2010

177

National Register of Historic Places: Recognizing and Preserving Our Historic Properties The National Register is our country's official list of historic buildings, structures, sites, objects, and districts worthy of preservation. The Historic Preservation Division (HPD) nominates eligible properties in Georgia to the National Register so they can receive preservation benefits and incentives. Currently, more than 75,000 historic buildings, structures, sites, and objects in Georgia are listed in the National Register. The National Register is maintained nationally by the U.S. Department of the Interior. Being listed in the National Register helps preserve historic properties. It provides formal recognition of a property's historical, architectural, or archaeological significance based on national standards used in every state. National Register designation identifies significant historic properties that can be taken into account in a broad range of preservation and development activities. It also insures that these properties will be considered in the planning of state or federally assisted projects. Properties listed in the National Register may qualify for specific preservation benefits and incentives, including:

state and federal preservation grants for planning and rehabilitation federal investment tax credits preservation easements to nonprofit organizations local property tax abatements fire and life safety code compliance alternatives reviewing permits for surface mining

National Register listing does not place obligations on private property owners, nor does it place restrictions on the use, treatment, transfer, or disposition of private property. National Register listing does not lead to public acquisition of property nor does it require public access to property.

To be eligible for listing in the National Register, a property must meet the National Register Criteria for Evaluation. These criteria require that a property be old enough to be considered historic (generally at least 50 years old) and that it still look much the way it was in the past. In addition, the property must: • be associated with events, activities, or developments that were important in the past; or • be associated with the lives of people who were important in the past; or • be significant in the areas of architectural history, landscape history, or engineering; or • have the potential to yield information through archaeological investigation that would answer questions about our past. Certain kinds of properties, such as moved or reconstructed buildings, are generally not eligible for National Register listing; exceptions are made if these properties meet special criteria.

178

The National Register Does . . . Identify significant buildings, structures,

sites, objects and districts according to the National Register Criteria.

Encourage the preservation of historic properties by documenting their significance.

Provide information about historic resources for planning purposes.

Facilitate the review of federally funded, licensed, or permitted projects to determine their effects on historic properties.

Assist state government agencies in determining whether their projects will affect historic properties.

Make owners of historic properties eligible to apply for federal grants for historic preservation projects.

Provide federal and state tax benefits to owners of taxable historic properties if they rehabilitate their properties according to preservation standards.

Insure that listed properties are considered in decisions to issue surface mining permits.

Allow consideration of fire and life safety code compliance alternatives when rehabilitating historic buildings.

List properties only if they meet the National Register criteria for evaluation.

The National Register Does Not . . Provide a marker or plaque for registered

properties (property owners may obtain markers or plaques at their own expense).

Restrict the rights of private property owners or require that properties be maintained, repaired or restored.

Automatically invoke local historic district zoning or local landmark designation.

Stop federally assisted government projects.

Stop state assisted development projects. Guarantee that grant funds will be

available for all properties or projects. Require property owners to follow

preservation standards when working on their properties, unless they wish to qualify for tax benefits.

Automatically stop the permitting of surface mining activities.

Mandate that special consideration be given to compliance with life safety and fire codes.

List individual properties if the owner objects, or districts if the majority of property owners object.

In Georgia, properties are nominated to the National Register by HPD. HPD invites nomination proposals from property owners, historical societies, preservation organizations, civic and business associations, governmental agencies, and other individuals or groups who are interested in using the National Register to preserve historic properties. Individuals, organizations, and agencies requesting National Register nominations carry out research and provide supporting documentation meeting state and federal standards with guidance and assistance from HPD. Proposed nominations are reviewed by HPD and the Georgia National Register Review Board. Approved nominations are submitted by HPD to the U.S. Department of the Interior in Washington, D.C. for final review and listing in the National Register. Properties listed in the National Register are automatically listed in the Georgia Register. Properties entered in the Georgia Register are not included in the National Register unless they are separately nominated through the National Register process.

For more information, visit our Web site at www.gashpo.org or contact Gretchen Brock, National Register Program Manager at 404-651-6782 or gretchen.brock@dnr.state.ga.us.

revised August 2010

179

HHiissttoorriicc PPrreesseerrvvaattiioonn TTaaxx IInncceennttiivveess

State and federal governm ent tax incentives are available for owne rs of a historic property who carry out a substantial rehabilitation. All propert ies must be listed in, or eligible for the National/Georgia Register of Historic Places, either individually or as part of a National /Georgia Register Historic District. Project work m ust meet the Secret ary of the Interior’s/Department of Natural Resources Standards for Rehabilitation. 1. Federal Rehabilitation Investment Tax Credit (RITC) – A federal income tax credit equal to 20% of rehabilitation expenses. Available ONLY for income-producing properties. The application is first reviewed by the Historic Preservation Division (HPD) then forwarded to the National Park Service for final decision. Program is available nationwide. 2. State Preferential Property Tax Assessment for Rehabilitated Historic Property – Freezes the county property tax assessment for over 8 years. Available for personal residences as well as income-producing properties. Owner must increase the fair market value of the building by 50 – 100%, depending on its new use. 3. State Income Tax Credit for Rehabilitated Historic Property – A state income tax credit of 25% of rehabilitation expenses. The credit is capped at $100,000 for residences and $300,000 for income-producing properties. This amended tax credit is allowed for the taxable year in which the certified rehabilitation is completed. The amended program’s percentages and caps are effective for projects completed after January 1, 2009. Important Facts: The application is a two/three part process, describing before and after rehabilitation.

Ideally, project work should be submitted before work begins and be completed within two years.

Applications for all three programs are sent to HPD, and must be reviewed and approved by HPD (and afterward NPS for the RITC.)

There are substantial cost tests that must be met to qualify for each program.

For more detailed information contact HPD’s Tax Incentives Coordinator at 404-651-5566, or visit our website www.gashpo.org.

December 2009

180

Georgia Heritage Grant Program Since 1994, the Georgia Heritage Program has offered matching funds on a statewide competitive basis to lo cal governments and nonpr ofit organizations for the pres ervation of Georgia Register and Na tional Register-eligible historic properties. E ach year, approxim ately twenty projects are selected for funding based on need, degree of threat to the resource, project planning, and comm unity benefit from the resource. Geographical and demographical distributions are also considered in award decisions. Funding is available through the Georgia Heritage Program to provide m atching grants for development and predevelopm ent projects. De velopment projects incl ude archaeological, stabilization, preservation, reha bilitation, and restoration activit ies. Predevelopment projects include plans and specifications, f easibility studies, historic structure reports, or other building-specific or site-specific preservation plans. The maximum grant amount that can be requested is $40,000 for development projects, and $20,000 for predevelopment projects. In order to be eligible for funding, applicants must be able to fulfill the following criteria:

be a local government or private secular nonprofit organization have documentation of matching funds (equal to at least 40% of the project cost) ensure that all grant assisted work m eets the applicable Secretary of the In terior’s

Standards for Archaeology and Rehabilitation of Historic Properties have properties that are listed in, o r eligible for listing in, the Na tional and Georgia

Registers of Historic Places, and be listed prior to reimbursement of funds agree to ex ecute a Covenant Agreem ent on the property to assure public access,

maintenance, and com pliance with preservation standards for five years (app lies to development projects only)

For more information, visit our Web site at www.gashpo.org or contact

Carole Moore, Grants Coordinator at 404-463-8434 or carole.moore@dnr.state.ga.us

revised November 2009

181

Georgia’s Regional Preservation Planning Services

Georgia has twelve Regional Commissions (RCs) that provide comprehensive assistance to local governments, individuals, and organizations. Eleven RCs employ historic preservation planners who provide preservation planning services in coordination with the Historic Preservation Division (HPD) of the Department of Natural Resources on either a full or part-time basis.

The Regional Preservation Planning Program was begun in Georgia in 1978 and based on a model that was in place in the planning regions of South Carolina. The purpose of the program was to provide more immediate technical assistance on all types of preservation issues and programs to governments, groups and individuals at the local level. Because many historic preservation activities span municipal boundaries, local governments must often work together on a regional level to accomplish their preservation goals. Especially in rural areas of the state, local expertise on historic preservation was not available. In its first year, only two of the RCs participated in the program, but its success can be measured by the fact that ten more regions joined the program by the next year. Currently, the Department of Natural Resources provides matching funds to the RCs and HPD administers the program. Participating RCs are required to have citizen advisory committees. This program has been extremely effective in bringing the programs of the HPD and other preservation related activities to regional and local constituents. With the passage of the Georgia Planning Act of 1989, the state has mandated that all communities create a comprehensive plan. Since RCs produce many of these plans, the regional preservation planners have the opportunity to integrate the preservation of historic resources into the planning process. The size of Georgia and the large and growing number of requests for assistance make it virtually impossible for HPD to provide all the assistance, visit all the projects, prepare all the plans, and respond to all the requests for help in Georgia. The Regional Preservation Planning Program is an essential element in Georgia’s preservation program.

For more information, visit our Web site at www.gashpo.org or contact Leigh Burns, Community Planning Coordinator, at 404-651-5181

or leigh.burns@dnr.state.ga.us

Revised December 2009

The RDC Preservation Planners provide services in the following areas: National Register of Historic Places Rehabilitation Tax Credit and

Abatement Programs Preservation Ordinances Environmental Review Project Administration Technical Assistance Design Assistance Heritage Tourism Grant Writing Heritage Education Historic Resources Survey Preservation Planning

182

GEORGIA REGIONAL COMMISSIONS ~ REGIONAL PRESERVATION PLANNING PROGRAM

CENTRAL SAVANNAH

RIVER AREA

COASTAL REGIONAL

COMMISSION OF GEORGIA

GEORGIA MOUNTAINS

Anne S. Floyd afloyd@csrarc.ga.gov

3023 Riverwatch Parkway, Suite A Augusta, Georgia 30907-2016

Ph: 706-210-2000, ext. 121 Fax: 706-210-2006

Director: Andy Crosson www.csrarc.ga.gov

Jason Kotarski jkotarski@crc.ga.gov

127 F Street Brunswick, Georgia 31520

Ph: 912-262-2877 Fax: 912-262-2313

Director: Allen Burns www.coastalgeorgiardc.org

Chip Wright cwright@gmrc.ga.gov

P.O. Box 1720 Gainesville, Georgia 30503

Ph: 770-538-2626 Fax: 770-538-2625

Director: W. Danny Lewis www.gmrdc.org

HEART OF GEORGIA ALTAMAHA MIDDLE GEORGIA NORTHEAST GEORGIA

Robin B. Nail rbnail@hogarc.org 331 West Parker St.

Baxley, Georgia 31513-0674 Ph: 912-367-3648 Fax: 912-367-3640

Director: Alan Mazza www.hogarc.org

Kristina Harpst kharpst@mg-rc.org

175 Emery Highway, Suite C Macon, Georgia 31217

Ph: 478-751-6160 Fax: 478-751-6517 Director: Ralph Nix

www.middlegeorgiarc.org

Burke Walker bwalker@negrc.org 305 Research Drive

Athens, Georgia 30605-2795 Ph: 706-369-5650 Fax: 706-369-5792

Director: James R. Dove www.negrc.org

NORTHWEST GEORGIA RIVER VALLEY SOUTHERN GEORGIA

Dan Latham

dlatham@nwgrc.org P.O. Box 1798

Rome, Georgia 30162-1798 Ph: 706-295-6485 Fax: 706-295-6665

Director: William R. Steiner www.nwgrc.org

Allison Slocum aslocum@rivervalleyrc.org

P.O. Box 1908. Columbus, Georgia 31902 Ph: 706-256-2910, ext. 126

Fax: 706-256-2908 Director: Patti Cullen www.rivervalleyrc.org

Michael Jacobs mvjacobs@segardc.org

1725 S. Georgia Parkway West Waycross, Georgia 31503

Ph: 912-285-6097 Fax: 912-285-6126

Director: John L. Leonard www.sgrc.us

SOUTHWEST GEORGIA

THREE RIVERS *ATLANTA REGIONAL

Paul Forgey pforgey@swgrc.org

P.O. Box 346 30 W. Broad St.

Camilla, Georgia 31730-0346 Ph: 229-522-3552 Fax: 229-522-3558

Director: Dan Bollinger, Sr. www.swgrdc.org

Lynne Miller lmiller@cfrdc.org

P.O. Box 1600 Franklin, Georgia 30217

Ph: 706-675-6721 ext. 226 770-854-6026

Fax: 706-675-0448 Director: Lanier Boatwright

www.cfrdc.org

Allison Duncan aduncan@atlantaregional.com

40 Courtland Street, N.E. Atlanta, GA 30303 Ph: 404-463-3305 Dir: 404-463-3254 Fax: 404-463-3105

Director: Chick Krautler *www.atlantaregional.com

*Non-participant in HPD regional preservation planning program. Revised June 29, 2010

183

1. Northwest Georgia Regional Commission 2. Georgia Mountains Regional Commission 3. Atlanta Regional Commission 4. Three Rivers Regional Commission 5. Northeast Georgia Regional Commission 6. Middle Georgia Regional Commission 7. Central Savannah River Area Regional Commission 8. River Valley Regional Commission 9. Heart of Georgia-Altamaha Regional Commission 10. Southwest Georgia Regional Commission 11. Southern Georgia Regional Commission 12. Coastal Regional Commission of Georgia

GEORGIA REGIONAL COMMISSIONS

Image provided by the Georgia Department of Community Affairs 184

Environmental Review Program: Planning for the Protection of Historic Resources Since 1966, the National Historic Preservation Act has defined the goals for protecting our heritage by creating a framework of laws and programs at the national, state, and local levels. The Historic Preservation Division (HPD) has the responsibility to assist federal agencies and their applicants in determining whether or not their projects will affect significant historic resources. The environmental review process provides the planning framework, which balances historic preservation values with the development needs, or goals of a Federal undertaking. HPD's role in this review is advisory and consultative, relying on established federal and state laws, and on the information that agencies and their applicants provide to HPD.

How Section 106 Review is Triggered Every year, thousands of construction projects affect historic properties in Georgia. Many of these projects are initiated by, or require permits or licenses from, government agencies. Section 106 of the National Historic Preservation Act requires that those federal agencies responsible for approving or funding such undertakings make a reasonable and good faith effort to identify and evaluate historic properties, to assess the project's effects when historic properties are found, and to offer the Advisory Council on Historic Preservation, the federal agency overseeing enforcement of the NHPA, the opportunity to comment. A federal undertaking is any project, activity, or program that can result in changes in the character or use of historic properties. Federal refers to being under the direct or indirect jurisdiction of a federal agency. An undertaking might include: actions directly carried out by, or on behalf of, a federal agency, actions carried out with federal financial assistance, actions requiring a federal license, permit or approval, or actions subject to state or local regulation administered or approved by a federal agency. A state or local government project, or a private project that is undertaken without federal funding licensing, or permits is not subject to Section 106 review, even if it affects historic properties. It may, however, be subject to state or local preservation regulations.

Section 106 states that federal agencies shall “prior to the approval of the expenditure of any Federal funds on the undertaking or the issuance of any license, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register and to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.”

185

The review process starts when a federal agency determines that a proposed undertaking may cause changes in the character or use of an historic property, regardless of whether an historic property is known to exist. The federal agency may initiate the review process before historic properties are identified. It is the nature of the project (that it is federally funded, licensed, or permitted), not the presence of an historic property, which triggers the process.

The Role of the Historic Preservation Division The responsibility of the HPD is to provide information and guidance in making recommendations to a federal agency on the potential effect of an undertaking; but the federal agency itself retains all decision-making authority. The Secretary of the Interior's Standards for Archaeology and Historic Preservation establishes the professional standard for the identification, evaluation, National Register eligibility, and treatment of historic properties. The Section 106 process used to review federal undertakings is a five-step process, and is outlined in the Advisory Council's regulations contained in 36 CFR Part 800. The HPD provides technical assistance and its comments to federal agencies and their applicants on: the National Register eligibility of historic and archaeological resources in the project's area of potential effects, the assessment of the project's effects upon these resources, and possible means to mitigate adverse effects or measures to minimize harm to these resources. In consultation with the HPD, it may be determined that an undertaking will have no effect on historic resources. If so, the project may proceed without further consultation. When HPD and the federal agency agree that a project may have an effect on historic resources, the federal agency must notify the Advisory Council if the effect is adverse, and seek ways to mitigate the adverse effect. In most review projects involving adverse effects, a Memorandum of Agreement (MOA) is developed which stipulates what measures will be used to mitigate the adverse effects to historic properties, and is signed by the consulting parties - the State Historic Preservation Officer (HPD), the federal agency or designee, and sometimes the Advisory Council. This process allows all parties involved to work together to reconcile varying public and private interests in any given project. Its success as a tool in planning depends entirely upon the willingness of involved federal agencies, applicants, community groups, and local governments to participate actively and openly in achieving a fair, timely, and acceptable resolution to all Section 106 cases.

For more information, visit our Web site at www.gashpo.org or contact Elizabeth Shirk, Environmental Review Coordinator

404/651-6624 or elizabeth.shirk@dnr.state.ga.us.

revised December 2009

186

What project could your CLG complete? Below is a list of past HPF grant projects. City of Athens-Clarke County - $3,680 to complete the Athens-Clarke Co. Commercial, Institutional, & Industrial design guidelines. City of Brunswick - $5,400 to complete a historic resources survey of the Old Town Brunswick Historic District. City of Hawkinsville - $3,000 to complete a National Register Historic District nomination for the city of Hawkinsville. City of Atlanta - $16,500 to complete two thematic studies for the city of Atlanta, including "Post-World War II Housing in the City of Atlanta" and "Agricultural/Rural Resources in the City of Atlanta." City of Kennesaw - $9,000 to produce a restoration plan for the Kennesaw City Cemetery.

Historic Preservation Fund Grants: Predevelopment, Survey and Planning The Historic Preservation Division receives funds annually from the National Park Service to carry out a statewide historic preservation program in participation with state and local governments, organizations, and the citizens of Georgia. Each year, 10% of that federal allocation is given out in the form of the grants to Georgia's Certified Local Governments.

Who Can Apply Certified Local Governments (CLG's) may apply for this grant funding. CLG's are assigned to categories by HPD based on the historic preservation work previously completed in their communities. CLGs in Category I have not completed a community-wide historic structural resources surveys and/or archaeological surveys, and are only eligible to apply for survey funding. Category II CLGs have completed a community-wide survey and may apply for any of the activities listed below.

Eligible Activities Predevelopment, Survey and Planning grants are awarded on an annual basis for projects which will enhance historic preservation in local communities or throughout the state. All grants are awarded on a 60% federal/40% local matching basis. Eligible activities include the following:

Historic resource surveys Preservation planning activities & studies National Register nominations Educational activities & publications Archaeological surveys and testing

Predevelopment (plans & specifications)

187

Grant Awards The Historic Preservation Fund grant funds are awarded once a year on a competitive basis. Approximately 10 grants are awarded annually, depending on the amount of the Historic Preservation Fund allocation. Grant amounts generally range from $1,000 to $15,000. Grant applications are rated according to objective selection criteria, and in relation to the quality of all the other applications received. The selection criteria emphasize the need for the project, sound project and financial administration, and proper preservation methodology. Also, geographical distribution and the selection of a variety of project types are factors in the award of grant funds.

Requirements The grantee is required to follow federal and state regulations that govern the use of federal grant funds. The grant must be matched by nonfederal funds. This match must be partially cash, but may include donated materials and labor, as well as staff and/or volunteers. All grant projects must be either conducted or supervised by personnel who meet recognized professional qualifications.

Application and Schedule Grant applications are distributed to all interested parties in mid November. Completed applications are accepted until February 1. Applicants are encouraged to discuss grants projects with the grants coordinator before submitting applications. Grant awards are announced in April.

For more information, visit our Web site at www.gashpo.org or contact: Carole Moore, Grants Coordinator at 404-463-8434 or carole.moore@dnr.state.ga.us

or Leigh Burns, Certified Local Government Coordinator

at 404-651-5181 or Leigh.Burns@dnr.state.ga.us

updated December 2009

188

Archaeology Section & the Office of the State Archaeologist

What We Do The Archaeology Section coordinates research for management and interpretive purposes on DNR managed lands, carries out underwater archaeology on our coast, performs technical reviews required under federal and state laws, and provides expertise to state and local government agencies and citizens. Some of our current projects include underwater archaeological investigations of a shipwreck thought to be USS/CSS Water Witch, co-sponsorship of research on Cherokee Trail of Tears sites by the Georgia Trail of Tears Chapter, excavations at a suspected Spanish Mission site on Sapelo Island, and development of a education programming focusing on Georgia’s American Indians in conjunction with the DNR Regional Education Centers. Most of the Archaeology Section activities are carried out in conjunction with various partner organizations throughout the state. Some of our most important public partners are the Georgia Council on American Indian Concerns, Fernbank Museum of Natural History, the Society for Georgia Archaeology, the Georgia Council of Professional Archaeologists, and the Georgia Archaeological Site File.

Who We Are Dr. David (Dave) Crass, Division Director & State Archaeologist 404-656-9344, david.crass@dnr.state.ga.us Dr. Bryan Tucker, Archaeology Section Chief & Deputy State Archaeologist-Terrestrial bryan.tucker@dnr.state.ga.us Chris McCabe, Deputy State Archaeologist – Underwater 912-598-3346, chris.mccabe@dnr.state.ga.us Robert (Bob) Entorf, Compliance Archaeologist 404-651-6775, robert.entorf@dnr.state.ga.us Jennifer Bedell, Staff Archaeologist 404-657-1042, jennifer.bedell@dnr.state.ga.us Vacant, Transportation Projects Review Archaeologist (Georgia DOT Liaison) 404-651-6433 revised May 2010

189

Georgia African American Historic Preservation Network: Preserving Georgia’s African American Heritage The Georgia African American Historic Preservation Network (GAAHPN) was established in January 1989. It is composed of representatives from neighborhood organizations and preservation groups throughout the state. GAAHPN was formed in response to a growing interest in preserving the cultural and ethnic diversity of Georgia’s African American heritage. This interest has translated into a number of efforts that emphasize greater recognition of African American culture and contributions to Georgia’s history. The GAAHPN Steering Committee meets regularly to plan and implement ways to develop programs that will foster heritage education, neighborhood revitalization, preservation and support community and economic development. The Network is an informal group of over 2,650 persons from around the state who have an interest in preservation. Members are briefed on the status of current and planned projects and are encouraged to offer ideas, comments and suggestions. The GAAHPN preservation conferences and meetings provide an opportunity to share and learn from the preservation experience of others and to receive technical information through workshops. Members receive the award-winning GAAHPN publication, Reflections, produced by African American programs for the Network. Membership in the Network is open to all.

Long Term Goals

Cultivate stronger ties with local educational institutions and take a leadership position by providing education and training activities to the citizens of Georgia.

Foster participation of Georgia’s African American communities in the statewide historic preservation movement.

Increase the use of historic preservation as a tool to stabilize historic African American communities by promoting economic development, neighborhood conservation, and heritage tourism.

Develop a comprehensive program to train and educate African Americans about historic preservation tools and techniques.

Seek funding for the protection of historic African American communities.

190

Georgia African American Historic Preservation Network Steering Committee Members Isaac Johnson, Augusta, Chair 706-738-1901 Linda Cooks, Stone Mountain, Vice-Chair 770-413-7212 Velmon Allen, Brunswick, Vice-Chair of Network 912-261-1898 Lillian Davis, Culloden 478-992-9562 Gerald & Barbara Golden, Morven 229-775-2941 Terry & Cynthia Hayes, Savannah 912-495-0591 Richard Laub, Atlanta 404-413-6365 Christine Miller-Betts, Augusta 706-724-3576 Kenneth Rollins, Perry 478-550-5371

For more information, visit our Web site at www.gashpo.org or contact: Jeanne Cyriaque, African American Programs Coordinator

at 404-656-4768 or via e-mail at jeanne.cyriaque@dnr.state.ga.us

revised November 2009

191

Georgia Historic Resources Survey: Identifying Properties for Preservation The Historic Preservation Division is responsible for identifying and protecting the state’s historic architectural and archaeological resources. Prior to preserving the significant historic resources in our state, these resources must be identified. It is estimated that there are approximately 175,000 historic buildings in Georgia at this time. The Georgia Historic Resources Survey, an ongoing statewide survey of older buildings and structures, has collected information on approximately 90,000 buildings. This initial step plays an essential role in a community's preservation efforts and facilitates wise decisions about preserving buildings and sites. The Historic Resources Survey collects and records information about extant historic buildings on a countywide or community-wide basis. This information includes an architectural description of the structure and its age, history, setting, and location. The information is entered in a statewide web-accessible computer database. Other records produced in the survey are photographs of buildings, topographical location maps, and reports analyzing the results of the survey and evaluating the significance of the surveyed properties. The Georgia Survey Manual, available at www.gashpo.org, describes how the survey data is recorded and details the systematic process of fieldwork methodology used to gather information. The methods used in Georgia surveys are designed to satisfy information needs throughout the state and to meet the Secretary of the Interior's Standards and Guidelines for Identification.

Completed surveys can be used to:

identify individual buildings and

districts for possible listing in the National Register or Georgia Register of Historic Places;

assist preservation efforts of Georgia's Certified Local Governments;

support local designations of buildings and districts;

expedite environmental review by governmental agencies;

aid preservation and land-use planning;

promote research of the state's history and architecture; and

increase awareness of, and interest in, a community's historic buildings.

192

The goal of the Georgia Historic Resources Survey is to collect, as uniformly and reliably as possible, a minimum level of information needed statewide for preservation activities. This basic survey is the standard, common denominator that creates a uniform database and makes it possible to compare or contrast buildings in one area with those in another area. The basic survey does not gather all the kinds of information needed in local preservation planning, environmental review, National Register nominations, or historical research, but it does serve as a foundation of information needed for these preservation activities. Supplemental information may be gathered during the survey to meet any special requirements a community might have in meeting its preservation goals. Suggestions for the kinds of information that might be added to the basic survey are found in the survey manual. The web-accessible database where the survey information is stored is available to general users at www.itos.uga.edu/nahrgis.

For more information, visit our Web site at www.gashpo.org or contact Lynn Speno, National Register and Survey Specialist

at 404-651-5911 or Lynn.speno@dnr.state.ga.us

revised April 2010

193

254 Washington Street, SW | Ground Level | Atlanta,

Georgia 30334-9007

404.656.2840 | Fax 404.657.1368 | www.gashpo.org

GEORGIA CENTENNIAL FARM PROGRAM

194

INTRODUCTION Do you currently own a working farm that has been in your family for over 100 years, or that is at least 100 years ol d and listed in the National Register of Historic Places? Then you may be interested in receiving special recognition for your farm. The Georgia Centennial Farm Program honors Georgia’s farmers for t heir contributions to o ur state’s agricul tural heritage and encourages preservation of agricultural resources for future generations. Recognition is given to farmers through one of three distinguishing awards: the Centennial Heritage Farm Award, the Centennial Farm Award, and the Centennial Family Farm Award. Eac h of these awards honors exceptional achievement. Refer to the Award Qualifications section on the following page for details.

AWARDS Participants who qualify for a cen tennial award are honored each year at the Georgia National Fair in October. During a special recognition program, farm owners receive a Georgia Ce ntennial Farm Certificate of Honor signed by the Governor. A bronze Georgia Centennial Farm plaque is also presented to those farms listed in the National Register of Historic Places. Photographs of selected farms are exhibited at special events throughout the year and during the Georgia National Fair.

SPONSORS The Georgia Centennial Farm Program is administered by the Historic Preservation Division, Georgia Department of Na tural Resources in cooperation with the Georgia Farm Bureau Federation; the Georgia Department of Agriculture; the University of Georgia, College of Agriculture and Environmental Sciences; the Georgia Forestry Commission; and the Georgia National Fairgrounds and Agricenter. The Centennial Farm Committee is comprised of representatives from each of these organizations.

INFORMATION Information about the program can be obt ained from: Historic Preservation Division, Georgia Department of Natural Resources, 254 Washington Street, SW, Ground Level, Atlanta, GA 30334-9007. (404) 656-2840.

AWARD QUALIFICATIONS To qualify, your farm must be a wo rking farm with a minimum of 10 acres actively involved in agricultural production or $ 1,000 annual farm generated income. Additional requirements for each of the three awa rd categories are as follows: Centennial Heritage Farm Award is the first category. Farms must be: Owned by members of the same family for 100 years or more,* Listed in the National Register of Historic Places. Centennial Farm Award is the second category and does not require continual family ownership; however, farms must be: At least 100 years old, Listed in the National Register of Historic Places. Centennial Family Farm Award is the third category and includes farms: Owned by members of the same family for 100 years or more,* Not listed in the National Register of Historic Places. *The line of ownership from the first family member owning the land may be through wives and h usbands, children (adopted included), brothers, sisters, nephews, and nieces. Farm land used for tree farming can qualify as a working farm only if the farm operates from a forest management plan written by a registered forester, has at least 10 acres of forest land, and will have forest products harvested at some scheduled time in the future.

AWARD SELECTION Applications are approved and selections made by the Centennial Farm Committee. Once a farm has received a centennial farm award, it w ill not qualify for another centennial farm award category. Only one certificate will be issued for each farm. E xceptions will be m ade for Centennial Family Farms that are listed in the National Register of Histor ic Places at a later date. These farms may reapply for the Centennial Heritage Farm Award category after they have been listed in the National Register. Applications for the Centennial Farm Awards must be postmarked by March 1st of the award year.

195

HPD’s Financial & Technical Assistance Programs The Georgia Heritage Grant Program offers matching funds on a statewide competitive basis to local governments and nonprofit organizations for the preservation of Georgia/National Register-eligible historic properties. Each year, approximately eight to twelve projects are selected for funding; based on need, degree of threat to the resource, project planning, and community benefit from the resource. Geographical and demographical distribution and variety of resource types and uses are also considered in award decisions. Contact: Carole Moore, Grants Coordinator at 404-463-8434; carole.moore@dnr.state.ga.us The Historic Preservation Fund is appropriated annually from Congress through the National Park Service to the state historic preservation offices. The Historic Preservation Division reserves ten percent, of each year’s appropriation for grants to Certified Local Governments in Georgia. The matching grants enable cities, towns and rural areas to undertake projects that aid in the preservation of historic properties and for preservation planning. Contact: Carole Moore, Grants Coordinator at 404-463-8434; carole.moore@dnr.state.ga.us The Historic Preservation Division administers federal and state tax incentives programs that encourage the adaptive use of historic buildings, and the revitalization of historic neighborhoods and commercial areas. The Federal Rehabilitation Investment Tax Credit provides owners of income-producing historic structures a federal income tax credit equal to twenty percent of the rehabilitation cost. The State Preferential Property Tax Assessment Program offers owners of income-producing and residential historic properties a property tax assessment freeze for over eight years; and the Georgia State Income Tax Credit Program provides property owners of income producing and residential historic properties a state income tax credit of 25% of their rehabilitation expenses, capped at $100,000 for residential, and $300,000 for income producing properties. All rehabilitation work must be in accordance with federal and state rehabilitation guidelines. Technical assistance is available. Contact: Ced Dolder, Tax Incentives Coordinator at 404-651-5567; ced.dolder@dnr.state.ga.us The Certified Local Government (CLG) program assists local governments to integrate historic preservation concerns with local planning decisions. Any city, town, or county that enacts a historic preservation ordinance enforced through a local preservation commission and has met requirements outlined in the Procedures for Georgia’s Certified Local Government Program is eligible to become a CLG. CLG status qualifies local governments for federal Historic Preservation Fund grants and technical assistance in historic preservation in the form of training sessions, information material, statewide meetings, workshops and conferences. Contact: Leigh Burns, Certified Local Government Coordinator at 404-651-5181; leigh.burns@dnr.state.ga.us The National Register of Historic Places is the official list of historic buildings, structures, sites, objects or districts worthy of preservation. National Register listing provides recognition of a property’s architectural, historical or archaeological significance. Listing in the National Register identifies historic properties for local, state and federal planning purposes and encourages their preservation through public awareness and preservation incentives, including preferential tax treatments and grants. Georgia

196

properties listed in the National Register are automatically listed in the Georgia Register of Historic Places. Contact: Gretchen Brock, National Register Coordinator at 404-651-6782; gretchen.brock@dnr.state.ga.us Knowing about historic properties through surveys is an essential first step in a community's preservation efforts and facilitates wise decisions about preserving individual buildings and neighborhoods. HPD's historic resources survey program coordinates the funding of local surveys through federal grants and state contracts with community sponsors. In addition to HPD's established historic resources survey program, the new FindIT program, a partnership between the Historic Preservation Division, the Georgia Transmission Corporation and the University of Georgia's College of Environment and Design, documents cultural resources throughout Georgia. The survey work is conducted by UGA historic preservation graduate students and funded by GTC. Contact: Richard Cloues, Survey & Register Unit Manager/Deputy SHPO at 404-651-5983; Richard.Cloues@dnr.state.ga.us Georgia is divided into twelve Regional Commissions (GRCs) that provide comprehensive assistance to local governments, individuals and organizations. Eleven GRCs employ preservation planners who provide preservation planning services in coordination with the Historic Preservation Division. Because many historic preservation activities span municipal boundaries, local governments must work together on a regional level to accomplish their preservation goals. Regional preservation planners provide technical assistance on a variety of preservation issues and programs at the local level. Contact: Leigh Burns, Community Planning Coordinator at 404-651-5181; leigh.burns@dnr.state.ga.us Historic Preservation Division (HPD) staff provides architectural technical assistance to communities, organizations and individuals across the state that are concerned about protecting and using their historic resources. HPD also provides guidance on rehabilitation issues by distributing technical information, participating in project consultations, making presentations and undertaking site visits. Contact: Bill Hover, Architectural Reviewer at 404-651-5288; william.hover@dnr.state.ga.us The Historic Preservation Division’s (HPD) Archaeology Protection and Education programs provide assistance to the public, offering technical advice, information, and educational opportunities related to all aspects of archaeology. We strive to protect sites throughout Georgia by reviewing the development projects that are required under state and federal laws to consider their impacts to archaeological resources. We work closely with other agencies and organizations both inside and outside state government. HPD’s archaeological services unit staff regularly handle inquiries regarding archaeology laws, ethics, site and artifact identification, American Indian issues, underwater/submerged archaeology issues and burials/cemeteries. Contact: Dave Crass, Acting Division Director and State Archaeologist at 404-656-9344; david.crass@dnr.state.ga.us The Historic Preservation Division (HPD) is responsible for assisting federal and state agencies, and their applicants, in determining if their projects could potentially affect historic or archaeological resources. The environmental review and compliance process provides a planning framework that balances historic preservation values with the needs of federally and state funded projects, as well as federally licensed, or permitted projects. HPD's role in these review processes is advisory as outlined in the relevant legislation, with the final determination of project implementation being the decision of the federal or state agency involved. Contact: Elizabeth Shirk, Environmental Review Coordinator at 404-651-6624; elizabeth.shirk@dnr.state.ga.us Revised December 2009

197

198

Page 1 of 3

FACT SHEET

CONTACTS: Mark C. McDonald, President & CEO 404-885-7801 Email: mmcdonald@georgiatrust.org

Traci Clark, Director of Communications 404-885-7802 Email: tclark@georgiatrust.org

The Georgia Trust for Historic Preservation, chartered in 1973, is one of the country’s largest statewide, nonprofit preservation organizations.

Committed to preserving and enhancing Georgia’s communities and their diverse historic resources for the education and enjoyment of all, The Georgia Trust generates community revitalization by finding buyers for buildings acquired by its Endangered Properties Revolving Fund; providing design assistance to 102 Georgia Main Street cities; and encouraging neighborhood revitalization; trains Georgia’s teachers to engage students in 63 Georgia school systems to discover state and national history through their local historic resources; and advocates for funding, tax incentives and other laws aiding preservation efforts.

The Georgia Trust is a recipient of the Trustees Award for Organizational Excellence from the National Trust for Historic Preservation.

GOALS Increase the number of historic buildings and places that are protected, preserved

and actively used in Georgia Broaden understanding of preservation’s enormous economic impact on

community revitalization and quality of life Expand support for preservation in Georgia by increasing public awareness,

forging partnerships, and building a strong and active membership Encourage good preservation practices by compiling and publicizing success

stories from around the state Promote historic buildings and places as the best means for understanding the

relevance of history to our daily lives PROPERTIES The Georgia Trust operates two historic house museums:

Hay House, 1859, Macon. This four-level Italian Renaissance Revival-style mansion is crowned by a three-story cupola, which is used in The Georgia Trust’s logo. “The Palace of the South” is a National Historic Landmark and has been featured on A&E’s America’s Castles.

The Georgia Trust  for Historic Preservation  1516 Peachtree Street, NW  Atlanta, GA 30309‐2916  Tel 404‐881‐9980  Fax 404‐875‐2205  www.georgiatrust.org 

199

Page 2 of 3

Rhodes Hall, 1904, Midtown Atlanta. Rhodes Hall, headquarters of The Georgia Trust, is a Romanesque Revival-style mansion built by furniture magnate Amos Rhodes. The “castle” is one of the few remaining palatial residences that once lined Peachtree Street. It is listed in the National Register of Historic Places.

PROGRAMS Advocacy – The Georgia Trust coordinates Georgians for Preservation Action (GaPA), a statewide network of preservation advocates to encourage state and national public policies that promote preservation of historic resources. The Trust’s local advocacy initiatives have helped protect threatened historic sites such as the Fox Theatre in Atlanta, Fort Frederica on St. Simons Island and Georgia Theatre in Athens.

Main Street Design Assistance – The Georgia Trust offers design and technical assistance to Georgia’s 107 designated Main Street cities, as well as to other communities throughout the state, in order to encourage rehabilitation and the revitalization of their historic downtowns. Since 1981, The Georgia Trust has helped more than 3,500 businesses rehabilitate their properties.

Endangered Properties Revolving Fund – This program enables the Trust to acquire significant historic properties that might otherwise be lost to demolition or neglect and sell them to preservation-minded buyers to rehabilitate. Talking Walls – Since 1991, the Trust’s heritage education program has helped teachers bring history home to their communities by training them to use local historic resources as teaching tools for the state’s curriculum. Recipient of a Governor’s Awards in the Humanities, Talking Walls has trained more than 1,800 teachers reaching 375,000, students in 61 school systems in 54 Georgia counties. Preservation and Community Assistance – The Trust provides technical assistance to more than 200 projects annually in communities throughout the state, as well as assistance and referrals to individual owners of historic properties. Preservation Awards & Scholarships – The Trust presents annual awards recognizing outstanding projects and individuals in the field of historic preservation, as well as two graduate school scholarships for preservation studies. Places in Peril – Launched in November 2005, this program identifies significant historic, archaeological and cultural properties threatened by demolition, deterioration, insensitive public policy or development, which have a demonstrable level of community interest, commitment and support. Each listed property also represents a category of historic resources that is threatened throughout Georgia.

PUBLICATIONS The Rambler – The Georgia Trust’s quarterly publication keeps members, media and others informed about preservation issues and activities in Georgia. J. Neel Reid, Architect – This book by William R. Mitchell, Jr., published by the Trust seeks to encourage the preservation of Reid’s great legacy to the classical architecture of Georgia and the South. Its sales fund the J. Neel Reid Prize, a fellowship to study classical architecture abroad awarded annually to an emerging architect with Georgia ties.

200

Page 3 of 3

EVENTS Rambles – Rambles feature educational visits and social events in historic properties. Offered as a benefit to Trust members, these trips are offered in the spring and fall. Annual Meeting & Preservation Awards – This weekend retreat is held in a different Georgia city each year. It includes: the Trust’s Annual Meeting and report to membership on its accomplishments; the Preservation & Scholarships Awards ceremony; and extensive rambling to local historic houses and institutional and commercial buildings. Fundraising Events – Almost 20 percent of The Georgia Trust’s annual operating revenue is raised from events held as benefits. The Preservation Gala and the Uptown Rhodes Race 5K are made possible by underwriting from more than 50 corporate sponsors, patron support and individual attendees. Study Tours – Tailored for small groups, study tours visit historic areas outside Georgia. The study tour is offered each year to Trust members. For more information about The Georgia Trust, please visit www.georgiatrust.org.

201

The Georgia Trust Department of Community Affairs Downtown Development 225 West Broad Street 675 Pulaski St., Suite 900

Athens, Georgia 30601 706-425-2926

ethibeault@georgiatrust.org

FACT SHEET The Georgia Trust offers design and technical assistance to Georgia’s 105 designated “Main Street” cities, as well as to other communities throughout the state, to encourage rehabilitation and the revitalization of Georgia’s downtowns. The program educates the public on how the appearance of any historic, non-historic, “non-contributing” or planned infill commercial structure is an irreplaceable individual piece of the overall character of each historic downtown.

How it works The Trust’s design manager schedules and conducts free site visits at the request of local Main Street Program directors, Downtown Development Authority directors and statewide regional offices to discuss with building owners appropriate rehabilitation alternatives for structures. Visits are usually arranged through the Department of Community Affairs Office of Downtown Development. The manager provides technical information on preservation techniques and products that would facilitate the rehabilitation work. In addition, for a nominal fee, the manager can produce a design concept consisting of a colored rendering of a building’s exterior with accompanying façade notes. Seminars, hands-on workshops, slide presentations and other materials are also offered by The Georgia Trust to inform Main Street programs, design committees, building owners, merchants and the general public about proper downtown design, historic preservation, and building maintenance.

Main Street Design Assistance is a much-utilized service that has become integral to economic revitalization efforts. The MSDA office is located within the offices of the Georgia Department of Community Affairs, Office of Downtown Development. The Georgia Main Street program is coordinated by the Georgia Department of Community Affairs, Office of Downtown Development. More than 3,200 businesses in cities around the state have benefited from The Georgia Trust’s design assistance, in the form of on-site consultations and drawings.

Design Manager: Evan Thibeault 706-425-2926 ethibeault@georgiatrust.org

Georgia Trust recommendations are based on The Secretary of the Interior’s Standards for Rehabilitation. The Standards are offered by the National Park Service and serve as the guide for the state historic preservation office – The Historic Preservation Division (HPD), Georgia Department of Natural Resources. HPD approves historic tax incentives, state and federal grants and environmental requirements. Assistance from The Georgia Trust at any level does not guarantee HPD approval for these programs. For further information on tax credit programs, state historic surveys and preservation grant programs contact HPD at 404-656-2840. For Main Street information or applications call The Georgia Department of Community Affairs at 404-679-0604.

01/06

GEORGIA MAIN STREET DESIGN ASSISTANCE (MSDA)

Existing facade before MSDA computer modeling.

Recommendations through a computerized rendering.

Hand rendered rehabilitation sketches include recommendations, paint and awning samples and technical information for a nominal fee.

The final rehabilitated structure after assistance.

Program made possible by a grant from The Georgia Department of Community Affairs, Office of Downtown Development

Additional community design services and landscape architecture provided through UGA and DCA.

202

TALKING WALLS The heritage education program of The Georgia Trust

FACT SHEET

Talking Walls, the Georgia Trust’s heritage education program since 1991, operates throughout Georgia, helping teachers bring history home to their communities by training them to use local historic resources as teaching tools in their lessons, including social studies, language arts and visual arts. These resources include historic properties, old documents and photographs, as well as living resources such as guest scholars and community members who can share their oral histories.

How it works The Georgia Trust selects counties for the program based on size, geographic location and level of community support, with the goal of involving all of Georgia in the program.

Partnering with school systems and community organizations, the Trust compiles extensive heritage resource guides for teachers, including historical documents, maps, photographs, information about local historic sites and other materials related to the cultural traditions and history of the community. Teachers also learn about and develop projects involving local historic resources through week-long, facilitated, hands-on workshops.

The goal of Talking Walls is to help students understand and appreciate:

their community’s local historic resources—sites, structures, artifacts, documents and cultural/folk traditions

the excitement that comes from discovering how history relates to their surroundings

the reflection and relationship of these local resources to global, national and state history as well as aspects of English/language arts and fine arts

character and citizenship education engendered by developing a sense of place and stewardship

Heritage education seeks to nurture a preservation ethic in the learner. Close examination of historic places allows for the expansion and increased understanding of the experiences and cultural expressions that build the foundation for our heritage. Citizen involvement is essential for heritage education because thoughtful decision-making for today and tomorrow is based on a comprehensive understanding of the past.

So far, Talking Walls has reached a network of over 2,050 teachers. Through these teachers, the program has reached more than 401,750 students in 63 school systems in 55 counties.

Contact: Kate Ryan 404-885-7817 kryan@georgiatrust.org

The Georgia Trust  for Historic Preservation 1516 Peachtree Street, NW Atlanta, GA 30309‐2916 Tel 404‐881‐9980 Fax 404‐875‐2205 www.georgiatrust.org 

203

PRESERVATION EASEMENTS

WHAT IS A PRESERVATION EASEMENT?A preservation easement is a legal interest which regulates changes to a historic building and its land and may be given or sold by a property owner to a charitable organization. Once recorded, an easement becomes part of the property’s chain of title and ‘runs with the land’ in perpetuity, thus binding not only the present owner who conveys it but all future owners as well.

A preservation easement gives The Georgia Trust for Historic Preservation the legal authority to enforce its terms. These terms create covenants prohibiting the owner from making alterations to the property without prior review, consultation and approval by The Georgia Trust. The easement also imposes positive covenants that require the owner to maintain it in a certain physical condition.

WHAT ARE THE BENEFITS OF DONATING AN EASEMENT?Donating an easement protects a signifi cant property even after an owner has sold or be-queathed it; provides income, gift, and estate tax advantages for the donor and in Georgia, property tax advantages; and enables preservation organizations and public agencies to protect properties against adverse changes through acquisition of a partial interest rather than assumption of the full burden of property ownership.

HOW DOES AN EASEMENT PROTECT PROPERTY?The easement holder has the right to review and approve proposed alterations to a structure or its setting and to enforce the easement terms in the event of a violation.

HOW IS AN EASEMENT VALUED?Valuation, made by a professional appraiser, is typically the difference between the fair mar-ket value of the property before and after the grant of an easement. An easement may reduce the market value of a property because it restricts development rights.

WHAT ARE THE POSSIBLE TAX CONSEQUENCES OF AN EASEMENT DONATION?For federal income tax purposes, the most important benefi t is that the value of the donated easement is deductible as a charitable contribution, generally not to exceed 30 percent of the taxpayer’s adjusted gross income, thereby reducing the donor’s taxable income; the value in excess of 30 percent may be carried over for fi ve succeeding tax years. In some cases the ceiling on deductibility can be increased to 50 percent of adjusted income, with a fi ve year carry-over. For federal estate tax purposes, the value of the estate will be reduced because of the easement’s development limitations.

For Georgia state income taxes, the Georgia Conservation Tax Credit Program allows a tax credit equal to the value of the easement donation, capped at 25% of the fair market value of the donated property, and not to exceed $250,000 for individual owners and $500,000 for corporate owners. An easement also may decrease a property’s local tax assessment and thus its local property taxes.

For more information, contact Kate Ryanat 404-885-7817 or kryan@georgiatrust.org.

Frequently Asked Questions

1516 Peachtree Street, NW | Atlanta, GA 30309 | 404-881-9980 | www.georgiatrust.org

204

HOW DOES A PROPERTY QUALIFY FOR AN EASEMENT DEDUCTION UNDER FEDERAL TAX LAW?The Tax Treatment Extension Act of 1980, implemented by federal regulations issued on January 14, 1986, made permanent the federal income, gift, and estate tax deductions for charitable contributions of partial interests, such as easements, in real property. Restrictions must be granted in perpetuity. Gifts of “qualifi ed real property interests” must be made to a “qualifi ed organization” and be “exclusively for conservation purposes,” which include pres-ervation of a “historically important” land structure. A “certifi ed historic structure” is a build-ing, structure, or land area, depreciable or nondepreciable, listed in the National Register of Historic Places or located in a registered historic district and certifi ed as being of signifi cance to the district.

HOW DOES A PROPERTY QUALIFY FOR AN EASEMENT TAX CREDIT UNDER GEORGIA LAW?The Georgia Conservation Tax Credit Program provides a fi nancial incentive, in the form of a state income tax credit, to landowners who place a permanent conservation easement on their property and make that donation to a qualifi ed charitable nonprofi t organization, such as The Georgia Trust.

HOW DO I GO ABOUT IT?Step 1: Contact The Georgia Trust to determine if your property is eligible for an easement donation. If TGT determines that the building is listed on the National Register of Historic Places and TGT states its interests in holding an easement, proceed to Step 2.

Step 2: Have the property appraised for tax purposes by a professional real estate appraiser.

Step 3: Contact The Georgia Trust to have a deed of Historic Preservation Easement drawn up. Provide The Georgia Trust with a copy of the legal description of your property and a copy of the appraisal. The Georgia Trust prepares a Baseline Documentation Report of the property.

Step 4: Execute the deed in consultation with The Georgia Trust: Original Executed Deed, (including a copy of Exhibit A Legal Description) and the Administrative Fee.

Step 5: The Georgia Trust has the deed recorded at the Courthouse; original of the document remains with The Georgia Trust, and a copy will be returned to the donor.

FEES

1. An application fee of $500 is charged by The Georgia Trust to prepare all the necessary documents for closing of the donation.2. A one-time administrative fee of two percent of the value of the tax deduction generated by the donation of the easement is charged by The Georgia Trust at the time of the dona-tion. For example, an easement which is valued as a $10,000.00 tax deduction will create an administrative fee of $200.00 For income-producing properties, this fee can be considered a business expense.This fee covers the cost of: 1) Review and acceptance of easement documents 2) Periodic and annual review of easement properties and requested changes to structures. The fee does not include the cost of legal and appraisal services for the donor which the donor arranges separately. The fee is placed in a Fund to assure the continued fi nancial in-tegrity of the organization and to meet future administrative responsibilities of the easement program.

PRESERVATION EASEMENTSFrequently Asked Questions

1516 Peachtree Street, NW | Atlanta, GA 30309 | 404-881-9980 | www.georgiatrust.org

The Georgia Trust’s EndangeredProperties Programincludes the Revolving Fund program and the Easements program. Since 1983, thirty-one easements have been acquired by donation and monitored by The Georgia Trust for Historic Preservation. Since 1990, twenty properties have been sold with protective covenants through The Georgia Trust’s Revolving Fund program.

For more informationabout The Georgia Trust’sEndangered Properties Programvisit www.georgiatrust.org.

Contact:Kate Ryan404-885-7817kryan@georgiatrust.org

We shape our buildings;

thereafter, our buildings shape us.

- Winston Churchill

205

Mary Ray Memorial School, Coweta County A 2009 Places in Peril site

Mary Ray Memorial School, c. 1920s-30s

The Georgia Trust

For Historic Preservation 1516 Peachtree Street, NW

Atlanta, GA 30309-2908 Tel 404-881-9980 Fax 404-875-2205

www.georgiatrust.org

Places in Peril Program The endangered properties program of The Georgia Trust

CONTACT: Jordan Poole, Field Services Manager

706-506-9864, jpoole@georgiatrust.org

FACT SHEET The Georgia Trust’s Places in Peril program seeks to identify and preserve historic sites threatened by demolition, neglect, lack of maintenance, inappropriate development or insensitive public policy. The list raises awareness about Georgia’s significant historic, archaeological and cultural resources, including buildings, structures, districts, archaeological sites and cultural landscapes. Through this program, the Trust encourages owners and individuals, organizations and communities to employ preservation tools, partnerships and resources necessary to preserve and utilize selected historic properties in peril. In 2008, The Georgia Trust received a three-year $140,000 Partners in the Field matching grant from the National Trust for Historic Preservation to provide statewide preservation assistance, focusing on The Georgia Trust’s Places in Peril designees. Nominations for Places in Peril sites are submitted in June; the top ten designees are selected in the fall. The 2011 Places in Peril list will be announced in November 2010. Historic properties are selected for listing based on several criteria. Sites must be listed or eligible for listing in the National Register of Historic Places or the Georgia Register of Historic Places. Sites must be subject to a serious threat to their existence or historical, architectural and/or archeological integrity. There must be a demonstrable level of community commitment and support for the preservation of listed sites. The Georgia Trust for Historic Preservation is one of the country’s leading preservation organizations. Committed to preserving and enhancing Georgia’s communities and their diverse historic resources for the education and enjoyment of all, The Georgia Trust generates revitalization by finding buyers for endangered properties acquired by its Revolving Fund; provides design assistance to 102 Georgia Main Street cities and encourages their revitalization; trains Georgia’s teachers to engage students in 61 Georgia school systems to discover state and national history through their local historic resources; and advocates for funding, tax incentives and other laws aiding preservation efforts. The Georgia Trust is a recipient of the Trustees Award for Organizational Excellence from the National Trust for Historic Preservation.

206

Page 1 of 2

1516 Peachtree Street, N.W. Atlanta, Georgia 30309-2908 (404) 881-9980 FAX (404) 875-2205

FACT SHEET

Georgians for Preservation Action (GaPA) is the statewide network for historic preservation advocacy. Since its founding in 1987, GaPA has advocated laws, programs, and policies that promote the preservation of Georgia’s historic resources and archaeological sites by mobilizing grassroots preservationists across the state.

Among its activities, GaPA:

Annually develops and advocates a state legislative agenda that represents a consensus of the leaders of key preservation and archaeological constituencies.

Coordinates opportunities for preservation and archaeology supporters to meet with state legislators and elected officials.

Regularly communicates with historic preservation advocates about critical issues and legislation before the General Assembly.

Develops strategies for addressing state legislative issues during the General Assembly and throughout the year.

Provides GaPA members with information on national preservation issues with news from the National Trust Public Policy Office and Preservation Action, the national lobbying arm for historic preservation.

Participates in National Lobby Day to inform Georgia’s Congressional delegation about preservation and archaeology issues.

The Georgia Trust for Historic Preservation has coordinated GaPA since its founding, providing staff to administer the network; maintaining a presence and tracking legislation at the State Capitol during the General Assembly sessions; and ensuring communication among GaPA members. GaPA’s Steering Committee is on call for immediate response to legislative issues, to outline legislative strategy, to oversee organizational operations and needs, and to identify long-term organizational and policy goals. Members of the Coordinating Council, composed of representatives of the major preservation and archaeology organizations, serve as liaison among their colleagues and grassroots network throughout the state and identifies legislative and budget issues, sets the annual legislative agenda and encourages statewide participation. The Network is open to all preservationists, archaeologists and interested citizens. Communication is primarily via e-mail.

GEORGIANS FOR PRESERVATION ACTION

207

Page 2 of 2

GaPA has played a significant role in many of the hard-won legislative and policy advances for preservation in Georgia:

Establishment of the Georgia Heritage Grant Program. Creation of the Georgia Register of Historic Places.

Creation of the Preferential Property Tax Assessment and the State Income Tax Credit

Credit Programs.

Inclusion of preservation concerns in the Georgia Comprehensive Planning Act and the Georgia Environmental Policy Act.

Elevation of the state historic preservation office to a Division level within the Georgia

Department of Natural Resources.

Funding for the Archaeological Protection and Education Program and the Georgia African American Historic Preservation Network.

Creation of a historic preservation license plate to benefit the Georgia Heritage grant

program.

Including language in the Governor’s A+ Education Reform Act that strengthens state funding for historic schools.

Improved protection for abandoned cemeteries and archaeological sites.

Endorsing the work of the Joint Study Commission on Historic Preservation, the

Commission on the Restoration of the State Capitol, the Georgia Civil War Commission, the Council on American Indian Concerns, the Governor’s Commission on Georgia History and Historical Tourism and numerous other study committees.

GaPA Contact:

Kate Ryan, Programs Manager

404-885-7817 or kryan@georgiatrust.org

208

Brantley-Haygood House, Sandersville, Ga. Top: Before Bottom: After

 

ENDANGERED PROPERTIES REVOLVING FUND The endangered properties program of The Georgia Trust

FACT SHEET Contacts: Kate Ryan, Programs Manager

404-885-7817 - Email: kryan@georgiatrust.org

The Georgia Trust established the Endangered Properties Revolving Fund in 1990 to provide effective alternatives to demolition or neglect of architecturally and historically significant properties by promoting their rehabilitation and monitoring their preservation in perpetuity.

How it works The Endangered Properties Revolving Fund accepts property donations or acquires options on endangered historic properties. Properties in the program are marketed nationally through various websites and print media to locate appropriate buyers who will agree to properly rehabilitate and maintain the structures. Protective covenants are attached to the deeds to ensure that the historic integrity of each property is retained, and annual reports are made by The Georgia Trust that document the properties’ conditions. The Georgia Trust’s Endangered Properties Revolving Fund Committee selects properties for the program based on the following criteria: Endangered: the property is threatened by

development, demolition or vacancy Significant: the property is either listed or is

eligible for listing in the National Register of Historic Places

Obtainable: the property’s current owner is willing to sell or donate the property to the Revolving Fund

Marketable: the Trust believes a sympathetic buyer can be realistically located for the property, considering building type, condition, location and price

Locally supported: the project has the support of local government and/or community groups willing to help market and safeguard the property

While the Fund is not designed to be income-producing, any advertising or stabilization costs (up to an agreed-upon amount) are reimbursed by the seller at the time of sale. Any proceeds from the sale are returned to the fund, thereby “revolving” the use of the initial capital. 08/10

The Georgia Trust   for Historic Preservation  1516 Peachtree Street, NW  Atlanta, GA 30309‐2916  Tel 404‐881‐9980  Fax 404‐875‐2205  www.georgiatrust.org 

209

Projects are chosen to receive awards by The Georgia Trust’s Board of Trustees based on the recommendations of the Preservation Awards Committee. Nominations of historic preservation projects completed within the past three years are submitted to The Georgia Trust in December. Details of nomination material requirements and submittal information are available on The Georgia Trust’s website or through the Programs Manager. Notifications of award winning projects are made in late winter prior to the Annual Preservation Awards Ceremony, part of The Georgia Trust’s Spring Ramble and Annual Meeting event. During the ceremony, The Georgia Trust may also present the Camille W. Yow Volunteer of the Year Award, the Mary Gregory Jewett Award, or any other Board approved award. These awards are selected by the officers of The Georgia Trust Board of Trustees based on recommendations and may or may not be presented annually.

The Georgia Trust for Historic Preservation 1516 Peachtree Street, NW

Atlanta, GA 30309-2916 Tel 404-881-9980

Fax 404-875-2205 www.georgiatrust.org

Annual Preservation Awards FACT SHEET Contact: Kate Ryan, Programs Manager 404-885-7817 or kryan@georgiatrust.org

For more than 30 years The Georgia Trust has recognized excellent preservation projects and individuals throughout Georgia for their significant contributions to the field of historic preservation. Awards are presented on the basis of the contributions of the person or project to the community and/or state and on compliance to the Secretary of the Interior’s Standards for Rehabilitation.

Award categories include:

Excellence in Restoration: An accurate restoration project depicts the form, features and character of a historic building as it appeared at a particular period of time. Restoration requires sensitive upgrading of mechanical systems and other code-required work to make the site functional.

Excellence in Rehabilitation: Rehabilitation projects make compatible use of a building through repair, alterations or additions while preserving significant features of the property that convey its historic value.

Excellence in Stewardship: This award recognizes those who ensure the preservation of historic properties through long-term care and maintenance, stabilization, protection or continuous family ownership.

Preservation Service: Persons, groups, businesses and/or government entities that demonstrate exemplary activities and promotion of awareness in the field of historic preservation are recognized through this award.

Marguerite Williams Award: This award recognizes the award-winning project that made the greatest impact on historic preservation in Georgia, as voted by The Georgia Trust Board of Trustees.

210

Public Works Construction Projects The Georgia Local Government Public Works Construction Law establishes

uniform requirements for local government public works construction projects.

The law requires contracts for such projects to be awarded in an open and

competitive manner while authorizing the use of current construction industry

practices to provide increased flexibility to local governments that are

constructing public facilities. Information on the Georgia Local Government

Public Works Construction Law can be found in the GMA publication, “Public

Works Construction Projects” updated in 2010 and available at

www.gmanet.com.

The public works construction law defines public works construction as “the

building, altering, repairing, improving, or demolishing of any public structure or

building or other public improvements of any kind to any public real property

other than those projects covered by Chapter 4 of Title 32. Such term does not

include the routine operation, repair, or maintenance of existing structures,

buildings, or real property.

Exemptions Not all construction contracts are subject to the public works construction law.

With certain exceptions, the requirements of the law do not apply to contracts for

the following projects:

1. Public works construction contracts costing less than $100,000; 2. Projects performed using inmate labor; 3. Projects involving the expenditure of federal funds and requiring

compliance with federal laws or regulations regarding procedures for entering into public works construction contracts;

4. Projects necessitated by emergencies or natural disasters; 5. Road construction projects; 6. Projects self-performed by the governmental entity; 7. Sole source procurement; or 8. Professional services.

211