Local Government Law - R. Perry Sentell, Jr.

• Jurisdiction: United States,Federal,Georgia
• Publication year: 1995
• Citation: Vol. 47 No. 1

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

It was the law's year for public preoccupation. Whether the criminal trial of famous figures or the investigation of terrorism's unspeakable evils, law levied an unprecedented hold upon public attention. That same intensity of exposure ran its course in local government law as well. Whether judicial or legislative, a scrutiny of dominating proportions suffused Georgia's municipalities and counties in the spotlight of public concern. This survey offers an account of that scrutiny.

I. Municipalities

A. Annexation

Over time, the general assembly has authorized municipal annexation by ordinance in a number of contexts.¹ The most recent authorization applied to "unincorporated islands" within the municipality, areas "consisting of 50 acres or less with . . . aggregate external boundaries abutting the annexing municipality."² A municipal effort at employing that authorization culminated in Culpepper v. City of Cordele³ The case featured two unincorporated areas, each consisting of more than fifty acres and traversed by a railroad right-of-way. Invalidating the annexations, the court of appeals rejected the municipal position that the right-of-way constituted a strip of municipal territory dividing the two areas into four areas of less than fifty acres.⁴ Rather, the court found no evidence that the right-of-way had ever been incorporated;⁵ thus, "the railroad right-of-way, along with the areas it traversed, formed two unincorporated areas in excess of fifty acres,"⁶ which the municipality could not annex under the legislative authorization.⁷

The general assembly has been far less generous with its power of municipal de-annexation;⁸ historically, the legislature itself exercised that power through the passage of local statutes.⁹ Lee v. City of Villa Rica¹⁰ illustrated the technique, as well as the striking results it can entail. Lee presented a municipal mayor's challenge to a statute de-annexing the area including the mayor's residence and thereby disqualifying him for the office of mayor.¹¹ Rejecting the challenger's arguments that the statute constituted a bill of attainder¹² and that it unlawfully shortened his term of office,¹³ a unanimous supreme court ordered the mayor to vacate the position.¹⁴

B. Officers and Employees

Litigation by and involving municipal officers and employees ranged the spectrum during the survey period. The officer's oath of office constituted the focal point of State v. Tullis,¹⁵ a police officer's indictment for violation of his oath (a felony)¹⁶ by his committing the misdemeanor theft of shoplifting.¹⁷ Affirming the indictment's dismissal, the court of appeals refused to interpret the oath violation statute to "render any commission of a misdemeanor by a police officer a felony."¹⁸ Rather, the court observed, "previous decisions uniformly require some connection between the offense and the public officer's official duties."¹⁹

A former police officer himself mounted the offensive in Terrell v. Georgia Television Co.,²⁰ an action in defamation for a television broadcast on the occasion of plaintiff's resignation.²¹ The action charged defendant's reporter with quoting the municipal mayor's characterization of certain funds as "unaccounted for" at a time when the auditor had found the funds properly documented.²² Emphasizing the "high standard of proof required of public officials in suing the media,²³ the court held the reporter's reliance upon the mayor's statement, as well as her failure to consult the city clerk, to fall short of "actual malice."²⁴

Other employee dissatisfactions materialized in contests over employment contracts. In Guthrie v. Dalton City School District,²⁵ for instance, plaintiff teacher sought breach-of-contract damages from the municipal school board for its attempted rescission of a settlement agreement.²⁶ Refusing to permit the board to brandish its violation of the Open Meetings Law²⁷ as a means of voiding the agreement, the court found no action contesting the violation within ninety days.²⁸ In the absence of such action, the alleged violation became immaterial,²⁹ and "the superior court erred in granting the movant defendants' motion for partial summary judgment."³⁰

The litigating teacher in King v. Board of Education of Buford³¹ sought to mandamus³² the board to honor her contract as school band director until providing her a hearing under the Georgia Fair Dismissal Law.³³ Rejecting plaintiff's efforts,³⁴ a majority of the court of appeals focused precisely upon the position of "band director."³⁵ Relying upon evidence from the State Professional Standards Commission,³⁶ the court determined that "the position of 'band director' is not in itself a distinct 'position' affording [plaintiff] the procedural protections of the Fair Dismissal Law."³⁷

C. Power

The period's "power" controversies required the supreme court to review a variety of municipal endeavors to obtain revenue. City of Calhoun v. North Georgia Electric Membership Corp.³⁸ featured a municipal effort to collect a street franchise fee from a "secondary supplier" of electricity.³⁹ Conceding municipal authority under the Georgia Electric Service Territorial Act⁴⁰ to impose a reasonable fee upon the supplier,⁴¹ the court found flaws in the city's exercise of that authority.⁴² As for an express contract, the court emphasized the municipal ordinance's requirement that the supplier provide written acceptance of the charge within ninety days. Given the supplier's steadfast refusal of acceptance, the ordinance's condition was never fulfilled, and no contract ever existed.⁴³ As for quasi-contract recovery, the court could find no "implied promise" on the part of the supplier⁴⁴ and no "reasonable expectation" on the part of the municipality.⁴⁵ "The City cannot rely upon its own unilateral act of continuing to allow its streets to be used and occupied as evidence of an enforceable implied promise on the part of NGEMC to pay a franchise fee which NGEMC has expressly rejected."⁴⁶ For the supplier's use of the streets to date, therefore, the municipality could recover no franchise fee.⁴⁷

The municipality reacted to the supreme court's decision by enacting a second ordinance levying a four percent gross receipts tax upon the secondary supplier. When the supplier refused to pay, the parties again came before the court under the style of North Georgia Electric Membership Corp. v. City of Calhoun.⁴⁸ This time, the supplier argued its exemption from the tax as a "franchise" of the Tennessee Valley Authority ("TVA") and as an "instrumentality" of the federal government. Rejecting both characterizations, a unanimous court held that the TVA contract constituted the supplier neither a "franchise"⁴⁹ nor a federal "instrumentality."⁵⁰ The court also rejected an argument of unconstitutionality:⁵¹ "The creation, by Ordinance No. 493, of a subclass of secondary suppliers not paying a franchise fee under Ordinance 361 cannot be said to be an unreasonable classification."⁵²

A distinctively different issue under the Georgia Electric Service Territorial Act surfaced in Athens-Clarke County v. Walton Electric Membership Corp.⁵³ There, a "unified government" sought to establish its power to impose a street franchise fee upon an EMC operating in the formerly unincorporated area of the county.⁵⁴ The supreme court approached the issue by emphasizing that the unified government's charter expressly declared the created entity to be both a "county" and a "municipal corporation."⁵⁵ As such, the court deemed the entity a "municipality" as empowered by the Electric Service Act to assess franchise fees upon the EMC.⁵⁶ Moreover, the court concluded, the government's adoption of an ordinance imposing a reasonable fee, followed by the EMC's continued use of the streets, obligated payment despite the absence of a formal "agreement."⁵⁷

A final "power" conflict arose in Morton v. Bell,⁵⁸ a funeral escort service's effort to prevent municipal police officers from using municipal motorcycles in providing a private escort service. Relying exclusively upon the municipal code, a unanimous court noted a general prohibition upon the use of city vehicles for noncity business.⁵⁹ Yet another provision prohibited use of city equipment, except for police uniforms, in outside employment.⁶⁰ Engaging the principle of expressio unius est exclusio alterius, the court interpreted the latter prohibition to cover vehicles.⁶¹ Accordingly, the court reversed the trial judge's refusal to honor plaintiff's request for a mandamus.⁶²

D. Regulation

Municipalities manifested diverse regulatory concerns during the survey period.⁶³ Discotheque, Inc. v. City Council of Augusta⁶⁴ presented one of those concerns via an ordinance purporting to regulate adult entertainment on premises licensed to serve or sell alcoholic beverages. The municipality, seeking the supreme court's affirmance of a favorable summary judgment, relied upon a prior decision approving virtually the same ordinance.⁶⁵ Rebuffing that analogy, the court explained that the earlier case involved only one of three mandated requirements.⁶⁶ In this case, the court delineated, the municipal movant for summary judgment must clear the ordinance under all three "tests."⁶⁷ Discounting the ordinance's preamble aspiration of reducing criminal activity and deterioration of neighborhoods, the court insisted upon evidence that "criminal activity and deterioration of neighborhoods were, in fact, pernicious secondary effects of adult entertainment establishments."⁶⁸ The court reached the same conclusion as to the ordinance's expressed reliance upon the experience of other localities: "In the absence of probative evidence of the 'experience' of other municipalities and counties, . . . summary judgment would not be appropriate."⁶⁹

The court tendered similar disposition to the ordinance at issue in Quetgles v. City of Columbus,⁷⁰ an ordinance prohibiting modeling sessions...