Local Government Law - R. Perry Sentell, Jr.

• Publication year: 2002

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

Without fear or favor, I would like to make a few comments and give my opinion. The last four years of my life as pertains to serving on this Board is not anything I will ever be proud of. There have been no worthwhile accomplishments, and this stems from a number of sources. One of these is a county attorney without any projection for the long-term of the county, a county attorney for whom I have less respect than a one dumb-legged cockroach.¹

In local government, as in life itself, things are not perfect. Often, when the going gets toughest, the first lay reaction is to shoot the messenger. The "law," and its ambassadors, hold dubious distinction as frequent first targets.

I. Municipalities

A. Officers and Employees

The survey period presented litigation across a range of financial concerns to municipal officers and employees. City of Atlanta v. Shafer² dealt with compensation itself and turned upon a general statute requiring that municipal traffic court judges receive no less than ninety percent of the annual salaries paid to county state court judges.³ The court of appeals rejected the municipality's position that, after salaries for state court judges were increased in July, the City could delay increasing salaries for municipal judges until the new city budget was approved the following March.⁴ Reasoning that the statute afforded the municipality no such discretion,⁵ the court insisted that the salary raises for municipal judges "must be made contemporaneously" with those for state court judges.⁶

A second financial concern, that of pensions, received the court's attention in Dodd v. City ofGainesville.⁷ There, a former police officer charged municipal negligence in miscalculating plaintiff's retirement benefits.⁸ In reviewing the trial judge's decision that plaintiff should have correctly calculated his own benefits,⁹ the court canvassed the calculation process employed by the city clerk.¹⁰ Taking into account the "sources," the "factors," and the "expertise" necessary to the process,¹¹ the court held that "a jury could find that [plaintiff] did not have an equal opportunity to determine the exact amount to which he was entitled."¹²

Connell v. Head¹³ featured a final financial aspect of municipal employment, the coverage of workers' compensation.¹⁴ The action arose from a collision between plaintiff (a municipal school cafeteria worker) and defendant (a municipal school bus driver), after plaintiff had signed off work, exited the parking lot, and was on a street controlled by the school.¹⁵ Conceding that traveling to and from work are generally uncovered activities,¹⁶ the court relied upon an "exception" for accidents occurring on school premises.¹⁷ Because the school system controlled the street in issue,¹⁸ the court asserted, plaintiff"had not yet left school property,"¹⁹ the accident arose "out of and in the course of" plaintiff's employment,²⁰ and workers' compensation covered plaintiff's injuries.²¹

Of a somewhat different complexion, Hawks v. Hinely²² drew the court's attention to a ramification of the recall procedure.²³ Seeking damages for distress and injury resulting from allegations contained in a recall petition,²⁴ municipal officials denied that their suits were subject to the verification requirements of the Anti-Strategic Lawsuit Against Public Policy ("SLAPP") statute.²⁵ In rejecting that contention, the court quoted the statute's expressed purpose "'to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances.'"²⁶ An application by constituents for the recall of elected officials, the court reasoned, "is an act in furtherance of the right to petition the government to redress grievances within the meaning of Georgia's anti-SLAPP statute."²⁷ Accordingly, the court concluded, the officials' failure properly to verify their complaints "necessarily means that the claims in any such complaint[s] must be dismissed with prejudice."²⁸

B. Elections

A local rezoning controversy in Ramsbottom Co. v. Bass/Zebulon Roads Neighborhood Ass'n²⁹ confronted the Georgia Supreme Court with an interesting one-person-one-vote challenge to a municipal-county joint planning and zoning commission.³⁰ The commission, created by identical ordinances of the city and county, consisted of a five-member body, with all members being residents of the county and at least three members also being city residents.³¹ "The City and County governing bodies alternate[d] appointing a Commission member for a five-year term, with one position turning over each year."³² This arrangement, challengers maintained, "result[ed] in disproportionate weight being given to the City in the appointment process" in violation of equal protection.³³

A unanimous supreme court, relying upon the United States Supreme Court's decision in Sailors v. Board of Education of the County of Kent,³⁴ emphasized that the commission was composed by the appointive process.³⁵ Because its membership was not determined "directly or indirectly, through an election,"³⁶ the members need not represent equal numbers of voters nor districts of equal population.³⁷ Accordingly, the court declared the commission free from the one-person-one-vote mandate of equal protection.³⁸

C. Powers

A crucial portion of local government "law" arises from efforts by municipalities to exercise assorted powers in the everyday warp and woof of governmental administration. When a challenge to the exercise is forthcoming, an appellate court typically fills yet another gap in the "power" corpus.³⁹ Appropriately representing the evolution, Letchas v.Sims Asphalt Co.⁴⁰ focused upon a municipality's receipt of bids for construction of a city project.⁴¹ When the submitted bids all greatly exceeded its budget, the City reduced the scope of the project, requested revision of bids, and awarded the contract to the lowest revisor.⁴² On the challenge of the original lowest bidder,⁴³ the court of appeals hoisted the original advertisement: That advertisement expressly reserved the City's right to reject all bids and waive any formalities in the process.⁴⁴ Without undertaking an extended search for affirmatively granted municipal power to so operate, the court summarily declared the City to have properly "exercised its right."⁴⁵ That "right," the court broadly asserted, the City itself had established in its advertisement.⁴⁶ A second instance of the "power" stand-off occurred in Kristin National, Inc. v. Board of Education of Marietta,⁴⁷ a challenge to the driver education program offered by a municipal school system.⁴⁸ Plaintiff, a private driver education school,⁴⁹ alleged defendant's program to be "ultra vires" and illegal and sought to enjoin its operation.⁵⁰ In response, the court sketched the respective driver programs provided by the parties⁵¹ and conceded that municipalities generally possess "no authority to engage in any independent business enter-prise."⁵² However, the court elaborated, "Teaching children . . . is not a matter which is purely private and entirely unconnected with [the system's] duties."⁵³ Reviewing the educational duties constitutionally imposed on school systems⁵⁴ and the implementing provisions of the Quality Basic Education Act,⁵⁵ the court declared that "the school system's operation of the [driver education] course is not an ultra vires act."⁵⁶

Plaintiffs in Fulton County Board of Education v. Citizens for Education & The Environment, Inc.⁵⁷ likewise advanced a charge of ultra vires, opposing a municipality's sale of park property to a school board.⁵⁸ Rejecting this charge as well, the court admitted the municipality's need for "express legislative authority" in order to dispose of property "acquired for and dedicated to the use of its inhabitants."⁵⁹

That need, however, the court found fully satisfied by a charter provision empowering the city to "sell or otherwise dispose of its park proper-ties."⁶⁰ The court rejected plaintiffs' argument that this 1972 charter provision could not have "specifically contemplated" the sale of this park property, property not acquired by the city until 1991.⁶¹ "Nothing in our case law," the court posited, "supports this conclusion."⁶² Rather, had "the General Assembly wished to except after-acquired property from this authorization, it could have done so."⁶³

D. Regulation

In the particular "power" province of "regulation," the Georgia Supreme Court reviewed municipal efforts in an assortment of con-texts.⁶⁴ Consolidated Government of Columbus v. Barwick⁶⁵ featured one of the most prominent of those contexts, the alcoholic beverage license.⁶⁶ There, a disgruntled license applicant challenged a municipal ordinance requiring a distance of six hundred feet between establishments operating bars, except for establishments located in the city's "riverfront district."⁶⁷ Initially, the court sustained the validity of the distance requirement itself as a constitutional exercise of the city's "police power" to regulate the "congestion of bars."⁶⁸ As for the riverfront-district exception, the court employed a "rational basis test" to approve "[t]he City's stated interest in attracting revenue to [that] zoning district."⁶⁹ It was reasonable, the court concluded, "for the City to provide those establishments that elect to do business in the [riverfront district] with an incentive, in the form of an exemption from the ordinance's distance requirement."⁷⁰

The court confronted yet another regulatory space limitation in Fairfax MK, Inc. v. City of Clarkston,⁷¹ a city ordinance requiring a minimum distance of five hundred feet between a gasoline station and a day care center.⁷² Having suffered municipal denial of a permit to construct a gasoline station, plaintiff alleged the ordinance to violate the state's "Zoning Procedures Law...