Local Government Law - R. Perry Sentell, Jr.

• Publication year: 1998

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

Plaintiff filed an action against the county for the repeated flooding of his home. The county attorney responded with a deft procedural maneuver:

It was my bright idea to take the plaintiff's deposition at his home. My timing was impeccable. During the deposition, . . . something on the order of a ten-year storm [occurred], an event which flooded [plaintiff's] property just as [he] had claimed. During our "adjournment" of the deposition, ... I [was] captured on video [by plaintiff's attorney] wading through plaintiff's front yard with my pants legs somewhere in the vicinity of my knees!¹

The "law" of local government, both decisional and statutory, indelibly reflects its origins.

I. Municipalities

A. Home Rule

Although enacted in 1965, the Georgia "Municipal Home Rule Act"² continues to raise issues of first impression in the appellate courts.³

The issue of Kemp v. City of Claxton⁴ went to the Act's authorization of citizen petitions initiating "amendments to or repeals of ordinances, resolutions, or regulations."⁵ Specifically, the supreme court queried, did that delegation permit petitions "to amend or repeal any ordinance, resolution, or regulation enacted by the [municipal governing authority]"?⁶ Reversing the trial judge, the court held the authorization is confined to citizen petitions seeking "to amend the city charter, or repeal an amendment to the charter."⁷

The court rested its conclusion upon several facets of the home rule statute. As for "legislative intent," the statute's "primary purpose" was "to authorize municipalities to amend their charters by their own actions."⁸ Moreover, the petition authorization "is prefaced by a statement that what follows are the methods by which a municipal corporation may 'amend its charter.'"⁹ Finally, the Act's legislative delegation power ran expressly to the municipal "governing authority."¹⁰ That delegation's requisite "strict construction"¹¹ restricted the citizen petition procedure "only to amendments to municipal char- ters."¹² It could not countenance an interpretation permitting the electorate's direct exercise of "general legislative power."¹³

B. Dissolution

Of all the self-evident truths of municipal law, one is paramount: For its continuing viability, a municipality must avoid dissolution. In 1993, the Georgia General Assembly engaged the sensitive subject of municipal dissolution¹⁴ via a statute defining "inactive municipalities."¹⁵ So designated were municipalities failing to provide at least three of eleven enumerated services, failing to hold at least six council meetings per year, and failing to hold regular elections.¹⁶ The statute automatically repealed the charters of inactive municipalities as of July 1, 1995;¹⁷ thereafter, it empowers any citizen of such a municipality to bring an action for "a declaration of the dissolution of the municipal corporation."¹⁸

Sherrer v. City of Pulaski¹⁹ presented an effort under the statute to dissolve a municipality allegedly failing to provide the requisite services.²⁰ Rejecting that effort, the court of appeals relied upon the municipal mayor's uncontradicted affidavit that the city had contracted for the county's performance of the services.²¹ As for plaintiff's charge of insufficient contract consideration, the court emphasized the agreement's provision that the county performed the services "'[i]n consideration for the County's receipt of [the city's] one percent sales tax program.'"²² Accordingly, the court affirmed summary judgment favoring the municipality's continued existence.²³

C. Annexation

Less disruptive than dissolution,²⁴ municipal annexation is a far more prevalent boundary-altering procedure.²⁵ Because of annexation's perceived impact upon municipal voting, the United States Supreme Court early held the procedure subject to the preclearance strictures of the 1965 Voting Rights Act.²⁶ A municipal failure to meet those strictures brought City of Arcade v. Emmons²⁷ before the Georgia Supreme Court.

Emmons turned upon the status of a municipal election admittedly held without federal preclearance of prior annexations,²⁸ an omission that the trial court determined to vacate the election.²⁹ On appeal, the supreme court expressly disapproved the municipality's actions, but insisted that "'[o]rdering new elections is a drastic remedy.'"³⁰ For at least three reasons, the court maintained that remedy was excessive in this case: the elected individuals held their offices for only two years,³¹ there was no discriminatory purpose,³² and the city had subsequently obtained federal approval of the annexations.³³ Accordingly, the court reversed the trial judge's vacation of the election.³⁴

D. Officers and Employees

Once again this year, municipal officers and employees constituted prolific sources of diverse litigation. Drawing a largely procedural disposition, Police Benevolent Ass'n v. Brown³⁵ featured an action brought by an association and seven police officers. Plaintiffs sought to mandamus the city manager to recognize the association as the police bargaining representative and to bargain with it under a specified set of "guidelines." Emphasizing the association's unclear status,³⁶ the supreme court held it was without standing to seek "the harsh remedy" of mandamus.³⁷ As for the officers' action, the court found the record barren of any ordinance containing the alleged bargaining "guide- lines."³⁸ The city manager could not be ordered "to comply with the terms of an ordinance not properly before the court."³⁹

The court of appeals likewise assumed a procedural focus in Webb v. City of Atlanta.⁴⁰ There, the municipality had suspended plaintiff's workers' compensation payments on grounds that he also received benefits under a city-sponsored disability plan.⁴¹ The court held that the unappealed award of workers' compensation payments precluded the city from later raising the disability-plan benefits.⁴² Otherwise, the court reasoned, there had been no change in plaintiff's physical condition or wage-earning capacity and thus no legitimate ground for suspending his workers' compensation payments.⁴³

Workers' benefits also propelled the controversy over the validity of a municipal ordinance in City of Atlanta v. Morgan.⁴⁴ That ordinance provided insurance benefits for city employee dependents registered under yet another ordinance as "domestic partners."⁴⁵ Appraising challengers' contentions that the benefits ordinance was precluded by an existing general statute (the Municipal Home Rule Act),⁴⁶ the court observed that the general statute failed to define the term "dependent."⁴⁷ The benefits ordinance was thus free to define "dependent" as one "'who is supported, in whole or in part, by the employee's earnings' and who uses such contributions to maintain his or her standard of living."⁴⁸ Consequently, the court concluded, the benefits ordinance was consistent with the general statute and the Georgia Constitution.⁴⁹ Employee termination confronted the court of appeals in City of Atlanta v. Smith.⁵⁰ Specifically, the case dealt with the city's termination of a police officer for paying confiscated money to an informant and filing a false report.⁵¹ Adopting an "any evidence" standard for reviewing the civil service board's dismissal,⁵² the court first held the officer's plea of entrapment unavailable in this civil proceeding.⁵³ As for alleged due process violations, the court upheld the board's decision that the sting operation lacked sufficient outrageousness: "[T]here is no evidence that [the city's informant] did more than inform [the officer] of the dealer's location and encourage him to hurry to the scene."⁵⁴ The court thus reversed the trial judge's order of reinstatement.⁵⁵

E. Recall

On two significant occasions, the supreme court revisited the controversial issue of municipal recall.⁵⁶ Davis v. Shavers⁵⁷ featured an official's libel action for statements made against him in an unsuccessful recall application.⁵⁸ Upon the court of appeals decision that the statements enjoyed only a conditional privilege,⁵⁹ the supreme court granted certiorari to resolve the issue. Approaching the matter from dual perspectives, the court first rejected assimilation of the recall procedure and court pleadings.⁶⁰ "[T]he recall procedure is not a 'judicial' or even 'official' procedure, but is political in nature, and the issue to be determined is of a political character."⁶¹ As for "public policy," the court reasoned that public officials should not be left without "remedy for allegedly libelous statements made with actual malice in the context of a procedure having only the slightest hint of a judicial nature."⁶² Accordingly, the court affirmed that, in a defamation action, recall application statements enjoy only a conditional privilege.⁶³

The second occasion, Phillips v. Hawthorne,⁶⁴ went directly to the recall application's content—allegations that the officials committed a crime by holding a closed meeting on abolishing the municipal police department. The trial judge held those allegations legally insufficient for failing to specify dates and places and for failing to allege both the presence of a quorum and wilful violation of the Open Meetings Act.⁶⁵ Charging the judge with an "inappropriately restrictive reading" of its prior decisions,⁶⁶ the supreme court tendered the following admonishment:⁶⁷ "Recall applications are not criminal indictments. They are not drawn by prosecutors; they need not be written by lawyers."⁶⁸ These allegations, the court emphasized, "were necessarily premised on the presence of a quorum at a meeting held in wilful and voluntary violation of the Act."⁶⁹ Otherwise, "there could have been no 'meeting' that constituted a 'crime' under the statutory definitions set forth in the Act."⁷⁰ Likewise, for dates and places: "The requisite information identifying the meeting was provided here not by date or location but by the...