Local Government Law - R. Perry Sentell, Jr.

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2008
• Citation: Vol. 60 No. 1

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

No matter how well you indoctrinate the Mayor and Council in exercising discretionary powers in an objective manner, someone always seems to cut to the chase and ask the wrong question. For example, I've admonished Councils for years not to show favoritism at zoning hearings, particularly to impassioned pleas for opposition by their constituents who, ofcourse, never address the objective standards of the zoning ordinance. Yet, recently, after a noted zoning lawyer so eloquently presented his development client's proposal for rezoning, the only question the Mayor asked was, "Has your client got any kinfolks living here?"¹

It is humanly impossible to take the "local" out of "local government law!"

I. Municipalities

A. Officers and Employees

The appellate courts focused upon a number of controversies turning upon the duties, powers, and status of municipal officers and employees.

In Duty Free Air & Ship Supply Co. v. City of Atlanta,² the Georgia Supreme Court purportedly launched a "narrow query" into a successful bidder's effort to mandamus the city's execution of an airport duty-free concessions contract.³ A majority of the court emphasized the material general statute's⁴ intent that the statute be supplemented by a municipal code section⁵ that "'[c]learly . . . gives the Mayor a choice to sign or not to sign a prepared contract.'"⁶ The mayor's failure to sign, the court deduced, constituted "'an act of discretion,'"⁷ and "[m]andamus cannot compel such a discretionary act."⁸

Mayoral power, yet again, triumphed in Housing Authority of the City ofMacon v. Ellis,⁹ a case challenging the mayor in appointing a member of the city housing authority without council confirmation.¹⁰ Rejecting the attack, the Georgia Court of Appeals focused upon the general statute's direction that "the mayor shall appoint five persons as commissioners of the authority"¹¹ and declared the appointment power "unconditional."¹² As the court reasoned, "The statute requires that the mayor 'appoint' not 'nominate.'"¹³

In at least two instances, municipal school system employees sought correction of perceived mistreatment. In Brawner v. Marietta City Board of Education,¹⁴ the court of appeals took the fairly unusual step of overruling a teacher termination decision by a city school board subsequently affirmed by both the Georgia State Board of Education (the Board) and the trial court.¹⁵ Reviewing the Board's finding of insubordination for the teacher's failure to provide a fitness-for-duty report before returning to work,¹⁶ the court emphasized that the teacher (on disability leave) had merely attended a part of a pre-planning day at the school without providing the necessary report.¹⁷ That conduct, the court determined, afforded no evidence of insubordination.¹⁸ Rather, the teacher had only "returned to the workplace; she did not return to work."¹⁹ Thus reversing the termination, the court emphasized that "a 'return to work' requires more than being physically present at the job site."²⁰

An elementary school principal likewise prevailed in Hall v. Nelson²¹ against a school system's nonrenewal of his contract and the system's subsequent remedial action (under the state board's order of reinstate-ment)²² in assigning the former principal to teach seventh grade math.²³ Under applicable state law,²⁴ the supreme court declared that the trial judge had correctly reversed the system's actions²⁵ and mandamused the system's reinstatement of the plaintiff to an administrative position.²⁶

The attempted removal of municipal officers attracted the attention of the appellate courts on at least two occasions. City ofCollege Park v. Wyatt²⁷ featured a quo warranto action²⁸ by a former member of the city's business and industrial development authority, complaining of her removal by the mayor and council on the ground that she did not reside in a specified ward.²⁹ The supreme court emphasized that neither the authority's enabling legislation³⁰ nor its bylaws required ward resi-dence,³¹ and the court promptly sustained the trial judge's reversal: "[I]t is clear that the City removed [the petitioner] without cause and that it lacked the power to do so."³²

Local procedure likewise failed the court of appeal's review in Ciccio v. City ofHephzibah,³³ a case presenting a city commissioner's removal for admitting guilt in 2006 under charges filed against him in 2004 for "theft by receiving."³⁴ Narrowly defining the city charter's removal provisions for "misfeasance or malfeasance in office,"³⁵ the court read these provisions to include only "an 'official act' or one done 'under the color of. . . office.'"³⁶ Here, the commissioner's "conduct of maintaining his innocence prior to pleading guilty in 2006 was indisputably not an 'official act' or one done 'under the color of his office' as a member of the Commission," nor did it prevent him "from performing his duties as a member of the Commission."³⁷

B. Regulation

Municipal regulatory efforts accounted for several controversies during the survey period.³⁸ City of Homerville v. Touchton³⁹ presented the plaintiffs' effort to mandamus municipal issuance of a beer and wine license under an ordinance that the city revoked and replaced while the mandamus action was pending.⁴⁰ Reversing the trial court's actions in deciding the case under the original ordinance, the supreme court minced no hesitations: "'Regardless of what is the rule in the area of zoning, the rule in the area of liquor licensing is that the standards to be applied are those existing at the time of the hearing on the license application rather than at the time the application is filed.'"⁴¹ Accordingly, the court remanded the case for consideration under the replacement ordinance.⁴²

Nguyen v. State⁴³ featured a request for habeas corpus for the petitioner's municipal court conviction of violating city ordinances governing business permits and hours of operation.⁴⁴ Preliminarily approving the petitioner's direct appeal,⁴⁵ the supreme court then turned to the merits: "We also disagree with the habeas court's [decision] that, because [the petitioner] was not sentenced to a term of imprisonment or a suspended or probated sentence, she was not entitled to counsel as a matter of constitutional right."⁴⁶ Quoting a statutorily assured right to counsel in enumerated municipal court cases, the court declared that (1) the statute's applicability in this case, and (2) "whether [the petitioner] was advised of her right to counsel and knowingly and intelligently waived that right are matters for determination in the habeas court."⁴⁷

Municipal mistakes under the infamous "red light camera" stat-ute⁴⁸ —erroneously adding a surcharge to the authorized civil monetary penalty⁴⁹ —drew a Section 1983⁵⁰ substantive due process challenge in City of Duluth v. Morgan.⁵¹ In response, the court of appeals rejected the plaintiff's advancement of a "strict scrutiny" analysis to his claim⁵² and instead applied the less restrictive "shocking the conscience" test.⁵³ Under that test, the court concluded that the city made its mistake in good faith and that its actions did not shock the contemporary conscience.⁵⁴ Accordingly, the trial court had erred in denying summary judgment for the municipality.⁵⁵

C. Contracts

The court of appeals considered municipal contracting capabilities from a variety of perspectives. For instance, Clark v. Fitzgerald Water, Light & Bond Commission⁵⁶ appropriately illustrated those capabilities as typically governed by intermeshing state and city legislative strictures.⁵⁷ In Clark a municipal utilities commission charged a developer with breach of contract, seeking to recover costs for providing water and sewer lines to the developer's subdivision.⁵⁸ Rejecting the defendant's position that the commission lacked charter authority to sue or be sued,⁵⁹ the court relied instead upon the charter's grant of the contract power: "'[T]he ability to contract evidences a separate legal entity with the implied power to sue and be sued over contracts.'"⁶⁰

Water utilities also provoked litigation in Operations Management International, Inc. v. City ofForsyth.⁶¹ The case instanced the municipality's suit for the defendant's breach of contract by failing to keep a water plant in operating condition, with the defendant counterclaiming for unpaid fees.⁶² As agreed, the parties enlisted the services of an arbitrator who found the defendant liable, the city responsibile for fees, and a net award to the city.⁶³ Upon the defendant's appeal from the arbitration (and its confirmation by the trial judge),⁶⁴ the court surmised as follows: "The purpose of arbitration is to avoid resorting to the courts for dispute resolution."⁶⁵ In keeping with that purpose, an award could be vacated only "'pursuant to . . . specific statutory grounds.'"⁶⁶ Reviewing the defendant's enumerated errors on the part of the arbitrator,⁶⁷ the court noted no "statutory grounds for vacating an award."⁶⁸

An award of attorney fees dominated City of Lilburn v. Astra Group, Inc.,⁶⁹ a breach of contract action arising from the renovation of a municipal park.⁷⁰ Affirming a jury award against the city,⁷¹ the court examined statutory prerequisites for attorney fees⁷² and held that there was "some evidence" of the following conduct: (1) the city misrepresented to the plaintiff contractor that tests showed no problems from an underlying landfill and then breached its duty to pay additional job site costs incurred because of the landfill; (2) the city breached its agreement to re-evaluate the plaintiff's request for payment on the increased overhead costs; and (3) the city's paramount concern centered upon holding the project within budget.⁷³ Accordingly, a jury could find that the city's bad faith, stubborn litigiousness, and actions caused the plaintiff "unnecessary trouble and expense."⁷⁴

DeKalb County v. City of Decatur⁷⁵ featured a suit by cities for the...