Petitions under the Recall Act of 1989 (OCGA 21-4-1 et seq.) were filed against two county commissioners on the grounds that they had "committed an act or acts of malfeasance while in office," and had "committed an act of misconduct in office." 1 Specifically, the petitions alleged:

[The commissioners] participated in meetings of the Henry County Board of Commissioners on August 10, September 15, November 5, November 19 and November 20, 1990 at which there were discussion and actions taken regarding the creation of a Henry County Police Department. These meetings were closed to the public in violation of Chapter 14 of Title 50 of [OCGA] requiring open and public meetings.

The commissioners filed a complaint in superior court seeking review of the sufficiency of the recall applications under OCGA 21-4-6. The trial court issued an order preventing the election commission from issuing recall petitions until a hearing could be held. Following the hearing, the court granted the commissioners' request for a permanent injunction based upon its determination that the petitions were insufficient under the provisions of the Recall Act.

We granted discretionary review of the trial court's orders pursuant to OCGA 21-4-6 (e), and asked that the parties address this question:

Whether a claimed violation of the Open Meetings Act is a ground for recall of a public officer under the 1989 Recall Act (OCGA 21-4-3 (7)).

We will discuss first this general inquiry, and then turn to the circumstances of the case under review.

1. (a) The Recall Act, at OCGA 21-4-3 (7), provides:

(A) That the official has, while holding public office, conducted himself or herself in a manner which relates to and adversely affects the administration of his or her office and adversely affects the rights and interests of the public; and

(B) That the official:

(i) Has committed an act or acts of malfeasance while in office;

(ii) Has violated his or her oath of office;

(iii) Has committed an act of misconduct in office;

(iv) Is guilty of a failure to perform duties prescribed by law; or

(v) Has willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed.

(b) The Open Meetings Act (OCGA 50-14-1) requires that every meeting 2 of the county commission be open to the public, except where there is an express statutory exception. Any exception must be construed strictly. 3

2. (a) The closing of a meeting that is required by the Open Meetings Act to be open is a violation of the Open Meetings Act. 4

(b) The conduct of 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 definition of "grounds for recall," as set out in Division 1 (a), above. Hence, our initial inquiry is answered in the affirmative.

3. (a) Turning to the factual circumstances of this case, the provisions of the Recall Act in effect at the time of the superior court's ruling (former OCGA 21-4-6 (d)) provided:

The judge shall schedule an evidentiary hearing on an expedited basis. . . . At the hearing, the petition chairperson shall bear the burden of demonstrating by a preponderance of the evidence that the ground or grounds upon which the application for a recall petition and the fact or facts upon which the ground or grounds are based, as set forth in the application for a recall petition, are legally sufficient under this chapter. [Ga. L. 1990, p. 1942 (d).] 5

(b) Bearing in mind the evidentiary requirements of the Recall Act then in force, we are unable to say that the trial court's findings of fact were clearly erroneous, and the judgment must be affirmed. OCGA 9-11-52 (a).

FLETCHER, Justice, concurring.

I agree with the majority that the conduct of a public official who participates in a meeting which has been closed in violation of the Open Meetings Act can become a ground for recall under the Recall Act of 1989 (the "Act"). 6

I write separately to express my concerns with provisions of the Act, as amended on April 10, 1991 and subsequent to the superior court review involved in the present case, which declare that the superior court's review shall not be for a determination "as to the truth" of the facts alleged in the application, but "only for the determination of the legal sufficiency of such alleged fact or facts as to form . . . and shall not include . . . evidentiary hearings." 7 Accordingly, the truth of the facts alleged in an application for a recall petition will not be reviewed by any court. 8

I hope that the majority's decision in Division 2 (b) will discourage neither persons who currently serve as local public officials nor persons who are considering entering public service. Rather, I trust that the decision will be accepted as clear direction from this court to public officials and their attorneys. The practical side of the majority decision is to point out that if there is the slightest doubt, or any question whatsoever, as to whether a matter can be the subject of a closed meeting, DO NOT CLOSE. To err in favor of openness will not result in the imposition of penalties on public officials, however, to err otherwise may well result in such penalties. It is also my hope that, from this concurrence, others will come to recognize and share my concern with the extremely limited nature of the judicial review afforded by the 1991 amendment to the Act.

James F. Grubiak, Oliver Hunter, amici curiae.