Local Government Law
| Jurisdiction | Georgia,United States |
| Publication year | 2012 |
| Citation | Vol. 64 No. 1 |
Local Government Law
Kirk Fjelstul
James E. Elliott Jr.
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This was another active year of litigation by, for, against, within, and between local governments. The Article that follows includes appellate decisions with unique, new, or instructive issues.1
While local government employees probably hope newly elected officials will not challenge their employment contracts, they are likely aware of the potential. In City of McDonough v. Campbell,2 the building inspector filed a complaint against the City demanding severance pay when the new mayor and council declared his contract null and void and refused to pay his salary.3 Although the contract was upheld at trial and in the Georgia Court of Appeals, the Georgia Supreme Court reversed and declared the employment contract ultra vires and void.4
The contract included an annual renewal provision that was automatic unless terminated before October 30th of each year.5 In the case of
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termination, the contract called for "[twelve] months salary as severance pay, plus insurance and retirement benefits."6 The supreme court, in declaring the contract void, relied on the Official Code of Georgia Annotated (O.C.G.A.) section 36-30-3,7 which prohibits one council from "bind[ing] itself or its successors to prevent free legislation in matters of municipal government."8 The court noted that the prohibition applies equally to the adoption of ordinances and to the approval of government contracts, and that the prohibition is to be interpreted strictly in order to carry out the intent of allowing local governments to legislate freely.9 The court concluded that the employment contract was void because the contract automatically renewed unless terminated, and because the severance provision requiring twelve-months pay plus benefits made the cost of termination exorbitant, thereby restricting the ability of successor councils to terminate the agreement.10
The Georgia Supreme Court was required to address another case where the actions of local governing bodies may bind their successors.11 Intergovernmental agreements are frequently used to memorialize long-term obligations between local governments,12 but we were reminded in City of Decatur v. DeKalb County13 that they do have limitations.14 The DeKalb County cities in City of Decatur executed a forty-nine-year intergovernmental agreement with DeKalb County in 1998. The purpose of the agreement was to memorialize the formula for distributing sales tax proceeds among the jurisdictions from the Homestead Option Sales and Use Tax (HOST), which was approved by the voters in 1997. More than a decade of litigation followed, over what began in the year 2000 as a dispute over the distribution formula.15 The litigation in this case concluded in the summer of 2011 after a third trip to the Georgia Supreme Court.16
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The court ruled, in the final version, that the intergovernmental agreement was not valid17 Local governments may not ordinarily enter into contracts lasting longer than the "government's term of office."18 The Intergovernmental Contracts Clause in the 1983 Georgia Constitution19 offers an exception that allows intergovernmental agreements to last up to fifty years in length.20 Their purpose, however, must be for the "provision of services, or . . . the joint or separate use of facilities or equipment, [and] must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide."21 The court in City of Decatur declared the intergovernmental agreement between the cities and DeKalb County invalid because its "plain and unambiguous" purpose was to determine how sales tax proceeds were to be divided.22 It was not an agreement to provide services or address the use of faculties.23
The right of citizens under the Open Meetings Act24 to know how their local elected officials vote was at stake in Cardinale v. City of Atlanta.25 Its importance as case law, however, has likely faded as a result of changes to the Open Meetings Act in 2012.26
Cardinale considered a non-roll-call vote at a retreat of the Atlanta City Council, where the council members were polled on their preference
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to change certain council rules. Observers of the vote noted that eight council members opposed a change and seven favored a change. The minutes did not record the vote, only noting that the council was not in favor of changes.27
The issue was whether a non-roll-call vote pursuant to O.C.G.A. § 50-14-1(e)(2)28 of the Open Meetings Act, which was in effect at the time, required a listing of which members cast the yes and no votes.29 The arguments revolved around the legislative distinction in the Act between roll-call and non-roll-call votes; roll-call votes required a record of all persons voting for and against the proposal.30 In all other cases, the vote is presumed unanimous unless the "minutes reflect the name of the persons voting against the proposal or abstaining."31
In reversing both the trial court and the Georgia Court of Appeals, the Georgia Supreme Court ruled that the City must record the council members voting against the proposal in a non-roll-call vote.32 The court reasoned that declining to record negative votes or abstentions would "potentially deny [the] non-attending members of the public access to information available to those who attended [the] meeting. Such a result conflicts with the Act's goal of greater governmental transparency."33 The court further reasoned that when no names are recorded, the public should be able to presume that the vote was unanimous.34
Subsequent to Cardinale, the General Assembly made substantial changes to the Open Meetings Act, including elimination of the reference to either roll-call or non-roll-call votes.35 The reference to a roll-call vote prior to the 2012 amendments seemed to be at the heart of the dispute that led to the litigation in Cardinale.36 Now the Act simply requires that all non-unanimous votes record the name of each person voting for or against a proposal.37 The Act creates a presumption that a vote was unanimous in favor of an item unless the minutes reflect a person has voted against an item or abstained.38
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If the right to free speech includes the right to question, then the Georgia Supreme Court certainly had the right to question its own free speech analysis in Grady v. United Government of Athens-Clarke County.39 In that case, the court upheld the constitutionality of a local noise ordinance challenged by a student who hosted a late-night party at his home.40 Apparently, the loud party noise and noise from "mechanical sound-making devices" could be heard more than 170 feet away.41 Unfortunately, the local noise ordinance for the zoning district prohibited "plainly audible" noises that could be heard from a distance of more than 100 feet.42 When the plaintiff was convicted of violating the ordinance, he challenged it as invalid under the free speech clause of the Georgia Constitution.43
More interesting than the result is the court's review of its free speech test and its invitation for future litigants to test the framework.44 The plaintiff in Grady, relying on Statesboro Publishing Co. v. City of Sylvania,45 asserted that the noise ordinance was unconstitutional because it was not the "least restrictive means" of furthering the local government's interest in regulating noise, which he argued was the proper test for cases seeking free speech protection under the Georgia Constitution.46 The court in Grady devoted the majority of its opinion to unraveling the history of Georgia's free speech standard, particularly in relation to Statesboro.47
According to the court, in 1999 Statesboro broke from the historical analysis of Georgia's free speech clause, which until then mirrored the analysis of First Amendment claims arising under the United States Constitution.48 That First Amendment test requires an ordinance be '"narrowly tailored' to serve a significant government interest and leave [] open ample alternatives for communication."49 In Statesboro, the court
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advanced the proposition that Georgia's free speech guarantee is broader than its federal counterpart, a proposition previously addressed only in dictum.50 The court in Statesboro then abandoned the "narrow tailoring" test and adopted a more stringent "least restrictive means" test, which had only been advocated in a minority dissent.51 The Statesboro test requires that the ordinance be the "least restrictive means of furthering the government's significant interests, while still leaving open ample alternatives to communicate."52
In analyzing the new Statesboro precedent, the court in Grady found the inconsistencies between Statesboro and prior precedent troubling because no authority was cited in support of the new test, and no reason for the change was articulated.53 The court in Grady, however, stopped short of ovemiling Statesboro because neither party challenged the test.54 Instead, the court held that the challenged ordinance could withstand scrutiny under either test.55 The court then invited future litigants to challenge the Statesboro test: "We therefore leave further consideration of this important issue for a future case."56
What are the ante litem notice rules for class action lawsuits? This was the question of first impression addressed by the Georgia Court of Appeals in a group of consolidated cases heard in City of Atlanta v. Benator.57 Parties intending to file a lawsuit to recover for certain injuries against a local government in Georgia must, as a statutory prerequisite, first serve the local government with an ante litem notice.58 The purpose of the notice requirement is to allow local governments the opportunity to...
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