Local Government Law - R. Perry Sentell, Jr.

• Publication year: 2003

Local Government Lawby R. Perry Sentell, Jr.^*

After an attorney's bill of more than $600 for February, the town council passed a law Tuesday that limits the ability of the mayor and city clerk to call the attorney. The mayor and clerk were criticized for contacting the town attorney to answer what one council member called "useless questions . . . ." The solution was a new town law requiring that if the mayor, council member, or clerk need to discuss a town issue with the attorney, the mayor and at least three council members must approve the question before the call.¹

Generally, a little knowledge is a dangerous thing. In local government law, too much knowledge is a fate to be avoided at all costs.

I. Municipalities

A. Annexation

Under general statute, municipalities possess power to annex unincorporated "islands" which, on January 1, 1991, were contiguous to the city and completely surrounded by it.² City of Smyrna v. Adams³ featured municipal employment of that statute to annex two parcels contiguous to a street allegedly annexed in 1985.⁴ Because the city's evidence failed to substantiate the 1985 effort, however, the court of appeals invalidated the "island" annexations.⁵ Of city council minutes showing that in 1985 the Department of Transportation approved the street's annexation, the court observed that "[t]he DOT . . . does not have the authority to give away state land."⁶ The 1985 annexation having failed, the court concluded, the subject street could not supply the necessary contiguity for the later island annexations.⁷

Although typically deemed a municipal procedure, annexation inevitably impacts the county as well, a point graphically illustrated by Coweta County v. City ofSenoia.⁸ The case presented a pre-annexation agreement between the governments, one "mitigative measure"⁹ being that "'[a]ll lots developed along the common boundary of the City and County shall have a minimum lot size of 1.6 acres . . . .'"¹⁰ When the municipality's subsequent annexation plat showed a fifty-foot buffer along the city-county boundary,¹¹ the county charged violation of the agreement and sought injunctive relief.¹² Focusing upon "the actual language of the mitigative measure,"¹³ the supreme court noted its applicability to all lots developed on the boundary.¹⁴ The buffer "is not a lot,"¹⁵ the court reasoned, and "can never be developed."¹⁶ Accordingly, "[i]f there are no developed lots on the boundary, it follows that there are no lots to which the mitigative measure would apply,"¹⁷ and the municipality had complied with the agreement.¹⁸

B. Officers and Employees

The court of appeals resolved several issues touching upon assorted rights of municipal officers and employees. The typically included issue of workers' compensation¹⁹ found representation in Pitts v. City of Rome,²⁰ in which there was a benefits claim for a police major's job-related stroke.²¹ Emphasizing both the State Board's denial of the claim and its own relegation to the "any evidence" standard of review,²² a majority of the court carefully canvassed the conflicting evidence linking stress to the officer's stroke.²³ The administrative law judge found "'only a possibility that this stress contributed to the onset of the stroke,'"²⁴ the court recounted, and "the evidence supported the fact-finder's determination."²⁵

Employee compensation drew the court's attention in City of Atlanta v. Miller;²⁶ specifically, the court addressed the issue of the number of hours firefighters must work to qualify for "emergency compensation."²⁷ Unlike other employees, "firefighters work[ed] 24/48 work shifts, i.e., 24 hours on duty followed by 48 hours off duty."²⁸ Under an ordinance requiring emergency compensation for employees temporarily serving in higher positions for more than thirty work days,²⁹ the municipality counted one twenty-four-hour shift for firefighters as only two eight-hour days. Under that interpretation, firefighters must serve forty-five days (rather than thirty) to become eligible for the higher pay.³⁰ Rejecting the city's position,³¹ the court found nothing in the ordinance to suggest "that the lawmakers intended that firefighters should be required to work more hours than other City employees"³² to receive emergency compensation.³³

Georgia statutory law affords peace officers a number of rights, including the right of prosecution only upon grand jury indictment.³⁴ In State v. Lockett,³⁵ a municipal police officer claimed that right to quash an accusation charging the misdemeanor offenses of "speeding and driving too fast for conditions."³⁶ Rejecting a state argument that the grand jury procedure existed only for "public officers,"³⁷ the court held that "peace officers" are entitled to the same protections.³⁸ "Clearly, through the enactment of [the peace officers statute], the legislature intended to grant to 'peace officers,' who are empowered to perform various law enforcement functions, the protections afforded to 'public officers' under [the public officers statute]."³⁹ Consequently, the court affirmed the trial judge's actions in quashing the accusation.⁴⁰

C. Regulation

In City of Decatur v. DeKalb County,⁴¹ the "dispositive issue [was] whether a county government [was] exempt from all municipal regulation of construction projects undertaken by the county with respect to county-owned property located within the city and used for governmental purposes."⁴² Specifically, the county "accepted a bid from a contractor to commence construction on the courthouse before obtaining permits from [the city] and further did not apply for city permits relating to renovations on another . . . [c]ounty government building."⁴³ Reversing the trial judge's decision for the county,⁴⁴ the court of appeals held that, aside from zoning regulations,⁴⁵ "county government building projects . . . are subject to other municipal regulation[s] (as indicated by the Georgia Legislature)."⁴⁶ Relying upon both the constitution⁴⁷ and general statutes,⁴⁸ the court instanced fire safety matters and land-disturbing activities as two areas "where the legislature has expressed an intent for municipalities to have some authority to regulate the building activities associated with county construction within [municipal] boundaries."⁴⁹

Regulation in the guise of taxation doomed the "occupation tax" ordinance challenged in City of Atlanta v. Barnes.⁵⁰ The litigated measure imposed an annual levy on attorneys practicing in the municipality,⁵¹ a levy the supreme court denominated a "precondition on the practice of law."⁵² Emphasizing the ordinance's requirement of payment "in advance of practicing law,"⁵³ as well as its penalty of incarceration for nonpayment, the court viewed the measure as one "imped[ing] the practice of law."⁵⁴ Those features rendered the ordinance "an unconstitutional regulation of the practice of law,"⁵⁵ a function "which is reserved by Georgia's constitution to this Court."⁵⁶ Rejecting the city's arguments ofseverability⁵⁷ and prospective invalidi-ty,⁵⁸ the court proceeded to overrule a prior decision "that there can be no class actions brought for tax refunds."⁵⁹ Accordingly, the court affirmed the trial judge's class certification for plaintiffs claiming municipal tax refunds.⁶⁰

D. Finances

The survey period confronted the Georgia Supreme Court with a novel issue arising under the Joint County and Municipal Sales and Use Tax Act.⁶¹ In Wells v. City of Baldwin,⁶² the court reviewed a tax "roll back" ordinance adopted by a municipality lying partly in two counties, one of which imposed a local option sales tax.⁶³ Under the ordinance, the municipality used the sales tax proceeds from the taxing county to reduce the millage rate for all city residents in both counties.⁶⁴ On the complaint of city residents in the taxing county, a unanimous supreme court held the tax statute's "plain language" to invalidate the municipal ordinance.⁶⁵ Indeed, "[l]anguage throughout the Act reflect[ed] the Legislature's understanding that there are municipalities which are located only 'partially' within special districts in the State."⁶⁶ That understanding, the court perceived, "limits the application of the rollback provision . . . to those residents of the special district [county] where the tax is imposed . . . ."⁶⁷ In reaching its conclusion, the court rejected the municipality's argument that a rollback in only a part of the city would violate the "uniformity" requirement of the Georgia Constitution.⁶⁸ Rather, the constitution's authorization of the sales tax statute "specifically provides for the levy of taxes to pay the cost of providing services within the limited territory of the special district."⁶⁹

E. Liability

Municipal liability remained a litigated subject of high profile during the survey period, with that litigation touching various facets of governmental responsibility.⁷⁰ Focusing upon the nature of the harm, Canberg v. City of Toccoa⁷¹ featured claims for emotional distress allegedly suffered when municipal firefighters refused to suppress a fire which consumed the plaintiffs' home.⁷² As for the claim of negligent infliction, the court of appeals affirmed the trial judge's summary judgment for the city.⁷³ Although plaintiffs had alleged physical impact and resulting physical injuries, they did not "claim that their physical injuries caused their mental suffering or emotional distress."⁷⁴ On the contrary, the court did find a jury issue regarding plaintiffs' claim of intentional infliction.⁷⁵ Refusal to fight the fire and charging plaintiffs with attempting to defraud the city⁷⁶ might be found "'sufficiently outrageous and egregious to support an award of damages for intentional infliction of emotional distress.'"⁷⁷

Municipal response to an injunction sharply divided the supreme court in City of Roswell v. Eller Media Co.,⁷⁸ in which the issue was the city's alleged violation of an order to permit a company's construction and operation of...