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Fulton County, Ga.’s appeal of a $16.6 million reverse discrimination judgment has sparked an argument over whether the state’s Open Records Act trumps attorney-client privilege when a government’s counsel is involved. Attorneys for the county government have argued that memos circulated among county staff lawyers, the library executive director and library board members should not have been allowed into evidence to support the allegations of seven librarians who sued the county library board, alleging they were transferred and stripped of responsibilities because they are white. The librarians won a $23.4 million jury verdict in January. U.S. District Judge Beverly B. Martin of the Northern District of Georgia later reduced the award to $16.6 million. The brief was filed in response to the county’s appeal of the judgment to the 11th Circuit. Bogle v. McClure, No. 02-13213-H (11th Cir. Sept. 4, 2002). The librarians’ appellate team includes former Georgia Attorney General Michael J. Bowers, partner Kelly Jean Beard and associate Christopher S. Anulewicz, all of Atlanta’s Meadows, Ichter and Bowers, and Michael B. Terry and Joshua F. Thorpe of Atlanta’s Bondurant, Mixson & Elmore. They are facing off in the 11th Circuit against Fulton County Attorney Overtis Hicks “O.V.” Brantley, who has teamed up with former U.S. Attorney General Griffin B. Bell, a senior partner at Atlanta-based King & Spalding. The plaintiffs’ lawyers acquired the memos through Georgia’s Open Records Act. They argue that a county lawyer’s highest loyalty should be to the public, not to county officials. “Unlike private lawyers whose allegiances are sworn solely to their private clients, government lawyers owe a competing duty of loyalty both to the public officials they represent and to their ultimate clients, the people. Where the latter duty arises, the first gives way,” the brief argues. The plaintiffs concede that the Open Records law does exempt documents pertaining to legal advice or the disclosure of facts in pending or potential litigation. But they say it does not exempt from disclosure all communications between government attorneys and public officials. “Had such a broad exemption been intended, the General Assembly could have simply stated that the Georgia Open Records Act would not be construed to repeal the attorney-client privilege recognized by state law. The General Assembly did not do this,” the brief argues. County lawyers claim in their appellate brief that the memos were prepared because of pending or potential litigation. However, the county also argued that the memos were privileged even if they weren’t prompted by potential litigation. In defending the judgment, the librarians’ appellate team highlights a statement made by the vice chairwoman of the Atlanta-Fulton County Public Library System’s governing board, Mary Jamerson Ward. Jurors were told by witnesses at the trial that Ward said, “There is a problem at Central, which is that the central library … has in it a white-dominated administration.” Ward told another former board member that there were “too many white faces” working at the central library in downtown Atlanta and that it was “not welcoming to black folks to see so many white faces,” according to the brief. County attorneys had argued in their briefs that three county library board members and the executive director found liable for the judgment should be immune from civil liability because they didn’t realize that lateral transfers with no loss of pay or change in job classification would rise to the level of “an adverse employment action.” The librarians’ lawyers are arguing that Willie J. Lovett Jr., an assistant Fulton County attorney, effectively waived qualified immunity when he stated during a charge conference, “We have never argued that the defendants didn’t know that transferring people based on their race is against the law. That’s fundamental. I mean, and every defendant knows that.” The brief also claims that the 11th Circuit “has continually admonished Fulton County and entities that it controls like the AFPLS that race-based decisions are illegal.”

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