Local Government Law - R. Perry Sentell, Jr.

• Publication year: 1996

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

The year was one of concern and hope, in both private and public affairs. As for the latter, the concern encompassed local government's continuing need for inordinate expenditures of both judicial and legislative attention. The hope was that, at some point, local government would "get it right." This survey graphically illustrates the causes for concern; it also affords glimmers of reason for hope.¹

I. Municipalities

A. Officers and Employees

Essential though they be, municipal officers and employees were largely unsuccessful in their appearances before the appellate courts during this survey period. Providing intriguing illustration of this point, City of Baldwin v. Barrett² featured a mayor's actions in both quo warranto³ and mandamus⁴ for his suspension from office by the city council.⁵ Reversing the trial judge's issuance of the mandamus, the supreme court reviewed the mayor's earlier plea bargain "with the district attorney to forego seeking or holding public office in exchange for the dismissal of certain criminal charges and for lenient treatment following his plea of guilty to two felony offenses."⁶ That bargain, the court held, "is a contract under Georgia law which binds both the prosecutor and defendant."⁷ Accordingly, the mayor "was ineligible to run in the 1993 mayoral election,"⁸ and possessed "no clear legal right" necessary for mandamus.⁹

Another facet of charged official misconduct surfaced in Sanderson v. State,¹⁰ a municipal police officer's effort to invoke "certain privileges" not afforded other defendants.¹¹ In countering a misdemeanor accusation in state court,¹² the officer claimed entitlement to indictment by grand jury. The court of appeals rejected the officer's claim by interpreting the grand jury statute:¹³ that measure "says that if a public official is indicted for alleged misconduct, he is entitled to certain rights; it does not say that a public official charged with misconduct must be indicted, or that he is entitled to those rights if he is not."¹⁴

The employment claims in Smith v. City of LaGrange¹⁵ went to retirement benefits, specifically the municipality's alleged mismanagement of early retirement incentive programs.¹⁶ Holding plaintiff former employees devoid of standing to raise constitutional challenges,¹⁷ the court of appeals focused upon plaintiffs' argument of "duty."¹⁸ That duty, the court asserted, "would require the City to inform employees of proposals being considered by the city council or proposals that may be presented to the city council in the future."¹⁹ Rejecting plaintiffs' claim of a "fiduciary relationship,"²⁰ the court noted an absence of evidence that the municipality knew the incentive programs would be forthcoming. "The City's lack of knowledge of and inability to predict the future conduct of the city council and the mayor precludes plaintiffs' claim for breach of any duty."²¹

B. Elections

The election to fill the office of municipal mayor may, on occasion, misfire. In Stuckey v. Storms,²² it resulted in a victory for one of two candidates by a majority of two votes,²³ clouded further by the fact that "three ballots were found in the stub box and were not counted."²⁴ Upon the losing candidate's petition to contest the results, the supreme court noted evidence that "voter confusion was caused by the misleading form of the ballot and compounded by a lack of assistance at the polling place."²⁵ In those circumstances, plaintiff had established that sufficient legal votes were rejected to place the result in doubt,²⁶ and the court affirmed the trial judge's invalidation of the election.²⁷

C. Recall

The recall procedure is steeped in history; it offers voters a more immediate solution to unsatisfactory government than does the election process itself.²⁸ In effecting that solution, however, the disgruntled voters must toe the prescribed procedural mark; this was the issue of George v. Baker.²⁹ In George, four municipal council members sought to enjoin a recall election, on grounds that the petitions had been filed in less than six months of previous invalid petitions.³⁰ Consequently, plaintiffs maintained, the effort contravened the recall statute's proscription³¹ that "'[i]f the election superintendent finds that a recall petition is insufficient' no further application . . . shall be filed for six months."³² In rejecting plaintiffs' position, the supreme court delineated the statutory proscription from the instance presented: "In this case, because a trial court and not the elections superintendent held that the initial recall petition was invalid, [the proscription] is inapplicable."³³ Accordingly, the contested recall election could proceed.

D. Power

Municipal "power" comes in a wide assortment of contexts, and its issues surface across the substantive spectrum of the law. One highly charged point on that spectrum pits municipal power against the inhibiting confines of estoppel.³⁴ The face-off is an impressive one, and it recently received instructive emphasis in City of Atlanta v. Black.³⁵ The case featured a settlement agreement executed by two assistant city attorneys (on behalf of the municipality) with private claimants.³⁶ The problem arose from the municipal attorneys' violation of an ordinance requiring settlements to first be approved by the municipal council.³⁷ Urging that the attorneys' actions were nevertheless binding, claimants deemed the municipality estopped to deny the settlement's validity.³⁸

The supreme court sketched both the statutory³⁹ and judicial⁴⁰ history of public estoppel,' concluding that "the authority of public sector attorneys, as with all other public officers, must be deemed limited by the laws that define and prescribe their authority."⁴¹ It is the duty of persons dealing with public attorneys, the court declared, to determine their compliance with those limitations.⁴² In this case, claimants took no "reasonable steps" to ascertain the attorneys' settlement authority, and the attorneys made no representations that they had obtained the authority.⁴³ Accordingly, the court concluded, the municipality was not estopped to deny the validity of the settlement.⁴⁴

A settlement agreement, but in a distinctly contrasting context, likewise constituted the focal point of Hamsley v. City of Unadilla.⁴⁵ There, upon taxpayer protest of its purchase of property, the city sold one of the parcels for the outstanding principal amount and conveyed cash and the second parcel to the financing bank.⁴⁶ Affirming the trial judge's approval of this agreement, the supreme court found considerable municipal discretion in exercising a legally delegated power.⁴⁷ Holding that discretion to control,⁴⁸ the court reasoned that "[t]he settlement agreement resolved a genuine dispute that the city had the possibility of losing, obligated the city to pay less money than the bank demanded, and avoided the payment of attorney's fees to further defend against the bank's claim."⁴⁹

The municipal power exercise failed the court of appeals' review in Grove v. Sugar Hill Investment Associates.⁵⁰ There, plaintiffs attacked the validity of a municipal resolution approving a "restated lease and operating agreement" with the city's solid waste treatment provider.⁵¹ Appraising the document, the court focused upon a provision designating specified additional parcels to be included within the landfill at the option of the provider.⁵² The court deemed that provision a "siting decision"⁵³ which, under the Solid Waste Management Act,⁵⁴ must be preceded by notice.⁵⁵ Rejecting defendants' proposal that the defect be cured by a properly noticed meeting,⁵⁶ the court reasoned that "[a] public airing must precede a decision if it is to have an unbiased, unencumbered effect on the decision."⁵⁷ The resolution's siting decision, the court concluded, was void.⁵⁸

E. Regulation

The adult entertainment establishment continued its levy upon municipal regulatory attention during the survey period.⁵⁹ Club Southern Burlesque, Inc. v. City of Carrollton⁶⁰ featured a constitutional attack upon an ordinance regulating such establishments. Specifically, challenger argued, the municipality produced insufficient evidence of "pernicious secondary effects" to justify the ordinance.⁶¹ Rejecting that argument, the supreme court noted plaintiff's agreement at the bench trial to treat municipal responses to inquiries as sworn testimony. In those responses, the city had identified several studies from other localities supporting its conclusion on secondary effects.⁶² The court held this unrebutted evidence⁶³ sufficient to authorize the trial judge's finding "that the City relied on specific studies which it reasonably believed to be relevant to the problems addressed by the ordinance."⁶⁴

The court likewise sustained the ordinance at issue in Dudley's Food & Spirits, Inc. v. City of College Park,⁶⁵ an ordinance prohibiting "full or substantial nudity in establishments where alcoholic beverages are served."⁶⁶ Reviewing the familiar three-part test for constitutionality,⁶⁷ the court enumerated the items of evidence offered by the municipality.⁶⁸ As for studies demonstrating pernicious secondary effects, "[i]t was not incumbent upon the city to prove the efficacy of the studies,"⁶⁹ only that it studied them and reasonably believed them relevant.⁷⁰ As for evidence that the city's motivating factor was not the suppression of speech, "it is clear that the crime issue was on the minds of the council members from the outset, and that it was the motivating factor in enacting the ordinance."⁷¹

F. Openness

The mandate of public disclosure goes to both public records and public meetings.⁷² As for the former, the Open Record Act's⁷³ exemptions are as traditional as its disclosure requirements. One established exemption addresses law enforcement and prosecution records; it touches upon both "confidential information"⁷⁴ and matters part of a "pending...