Local Government Law - R. Perry Sentell, Jr.

• Publication year: 2004

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

"My city was desirous of suing the county for violating the city's zoning ordinance .... As City Attorney, I was requested to research the matter and give an opinion to the Mayor and Council . . . . After giving my opinion that a suit against the county would be contrary to law and might subject the city (and its lawyer) to attorney's fees, the [M]ayor and [C]ouncil voted unanimously to sue the county The local newspaper's headlines read, 'City Votes Unanimously To Sue County Against Advice of City Attorney!' One of the Council members was quoted as saying, 'regardless of the law, we have an obligation to sue.'"¹

In local government law, the "obligation to sue" continues apace.

I. Municipalities

A. Annexation

The municipality's annexation of unincorporated territory stands as a subject of sharp disagreement between Georgia cities and counties.² Illustratively, on two litigated occasions during this survey period, a county employed statutory prerequisites to sidetrack municipal effectuation of the process.³ City of Buford v. Gwinnett County⁴ featured an ordinance purporting to annex territory separated from the city boundary by three parcels of land: one owned by the county, one containing a state right-of-way, and one owned by a utility.⁵ Addressing the county's challenge of non-contiguity, the Georgia Court of Appeals interpreted the material statute.⁶ There was no problem, the court decided, in "stacking" more than one intervening parcel between the boundary and the annexed territory, so long as each parcel was statutorily exempted from the contiguity requirement.⁷ Although both the county parcel and the state right-of-way parcel enjoyed express exemption,⁸ the court concluded the parcel owned by the utility did not.⁹ That intervening parcel rendered the proposed annexed territory non-contiguous to the municipality, thereby voiding the procedure.¹⁰

The municipality found itselfhoist on another statutory petard in City of Riverdale v. Clayton County,¹¹ the county's challenge to a sixty percent annexation procedure.¹² First, the court could find no evidence that the city had determined the proposed annexation to be in the best interest of its citizens and those in the annexed area.¹³ Under the material statute,¹⁴ "the best interest determination [must] be made prior to annexation."¹⁵ Second, the court likewise upheld the trial judge's decision that "the city failed to make adequate plans to extend services to the annexed area."¹⁶ There were only "brief written statements from three city department heads"¹⁷ that existing city services could accommodate the annexed area.¹⁸ Such "conclusory statements," the court declared, fell far short of the requisite "detailed plans and reports for the extension of services."¹⁹ Once again, therefore, the city's annexation effort failed.

B. Officers and Employees

Municipal officers and employees pursued and defended claims sounding in a variety of contexts and touching a range of substantive concerns. The court of appeals considered two workers' compensation controversies, one seeking to avert the system and the other to elicit its benefits.²⁰ In the former, Brooks-Powers v. Metropolitan Atlanta Rapid Transit Authority,²¹ the claimant sought to by-pass the system's exclusivity provision by invoking federal rights.²² An unreceptive court first rejected plaintiff's action under the Urban Mass Transit Act,²³ holding that statute provided neither an express nor an implied right of action.²⁴ "Had Congress intended to allow transit workers to sue outside of workers' compensation systems, it could have authorized suit under the Federal Employers' Liability Act."²⁵ The court likewise rebuffed plaintiff's claim under "Section 1983,"²⁶ a claim for denying employee's due process by failing to provide a safe working environ-ment.²⁷ Defendant's conduct, the court reasoned, "did not constitute deliberate behavior 'intended to injure in some way unjustifiable by any government interest.'"²⁸

The second episode, City of Savannah v. Stevens,²⁹ featured a police officer's claim of workers' compensation benefits for injuries received while driving her personal vehicle to work.³⁰ Preliminarily, the court emphasized its limited role of review, as well as its deference to the expertise of the administrative board.³¹ The court then relied upon

"uncontradicted testimony" that the officer was "on call, in uniform, armed, carrying a radio, and on the city streets that her job demanded that she protect."³² Consequently, the court affirmed the trial judge's approval of the board's decision that claimant's injuries "arose out of and in the course of her employment."³³

A police chief's claim of wrongful termination drew the court's attention in Wilson v. City of Sardis,³⁴ an action for damages against the municipality.³⁵ Affording short shrift to plaintiff's contentions, the court rested upon the undisputable fact of his "at-will" employment.³⁶ An at-will employee "'may be discharged at any time for any reason or [for] no reason, with no cause of action for wrongful termination under state law.'"³⁷ The court thus affirmed an adverse summary judgment.³⁸

Sparks v. Peaster³⁹ instanced a municipal citizen's defamation action against the city manager for publicizing plaintiff's alleged drug habit.⁴⁰ The court evaluated the claim by emphasizing evidence of plaintiff's "political activism" and "confrontational tactics."⁴¹ By voluntarily involving himself "in numerous issues of public controversy with the stated intent of influencing their outcome,"⁴² plaintiff had attained the status of "a limited purpose public figure."⁴³ So positioned, plaintiff must make "a clear and convincing" showing that defendant "'in fact entertained serious doubts as to the truth of his statements.'"⁴⁴ Given the city manager's safety concerns and the reports supplied him by police officers, the court deemed plaintiff deficient in meeting the "heavy burden" of establishing "actual malice."⁴⁵

Finally, Ward v. City of Cairo⁴⁶ featured a challenge to the general statute subjecting a municipal court judge to termination by the city governing authority.⁴⁷ Plaintiffalleged the statute to violate separation of powers⁴⁸ "because it authorizes the city to control the court's day-today activities."⁴⁹ Eschewing sustained analysis of the issue,⁵⁰ the Georgia Supreme Court relied upon early authority to cabin the separation of powers concept.⁵¹ The constitution's command "'relates to State legislative, judicial, and executive powers,'"⁵² the court delineated, "'and has no relation to municipal offices, created by the legislature, in the discharge ofstrictly municipal functions.'"⁵³ Because the municipal court "is a municipal office discharging strictly municipal functions,"⁵⁴ the termination statute "does not violate the separation of powers doctrine of the Georgia Constitution."⁵⁵

C. Regulation

In the attempted governance ofactivities and events occurring within its boundaries, the municipality may well encounter opposition from those impacted by its efforts.⁵⁶ The survey period was not atypical, therefore, in presenting instances of opposition. Two such instances turned more immediately upon the relationship between local and state legislation, a matter of legendary judicial concern.⁵⁷ The appellate courts have struggled over the centuries in crafting and applying various "tests" for resolving the stand-offarising when general and local statutes deal with the same subject.⁵⁸ Serving as the present terminus for that struggle, in 1998 the supreme court jettisoned its former test of"genuine conflict" and embraced an approach of "implied preemption."⁵⁹ Via that approach, it appeared the court afforded itself the most discretion possible to deal harshly with local statutes.⁶⁰ Both appellate courts employed that discretion during the period under scrutiny.

City of Buford v. Georgia Power Co.⁶¹ concerned the validity of a municipal ordinance establishing a one-year moratorium on constructing electric power substations within 500 feet of residentially zoned property.⁶² Granting the power company's request to enjoin enforcement, the supreme court relied upon a general statute's "express preemption of local ordinances 'expanding the power of regulation over any business activity regulated by the Public Service Commission beyond that authorized by charter or general law or by the Constitution.'"⁶³ It was immaterial, the court reasoned, that the Public Service Commission ("PSC") had no rules governing the placement of substations: "[P]re-emption is a matter of legislative intent, it does not depend on whether the PSC has exercised the power it has been given . . . ."⁶⁴ Here the "legislative intent" derived from the "breadth and scope" of the general statute was clearly to preempt the city ordinance.⁶⁵

The court of appeals preemption exercise appeared in Hill v. Tschan-nen,⁶⁶ a tenant's civil action against a landlord for failure to comply with a municipal ordinance requiring "smoke detectors that are continuously powered from the building's electrical system."⁶⁷ Defendant countered with evidence of his compliance with a general statute requiring "an approved battery operated smoke detector."⁶⁸ Holding that "the local law is preempted by the state law,"⁶⁹ the court relied upon the conflict otherwise presented: "Under the . . . ordinance, a state-required, battery-operated detector would be insufficient. Accordingly, the ordinance would hinder operation of the state law rather than augment or strengthen it."⁷⁰

The regulatory system litigated in State v. Heretic, Inc.⁷¹ resulted from a combination of state and municipal legislative measures. Although prohibiting Sunday alcohol sales by the drink,⁷² the state statute expressly authorized local governments to exempt restaurants from the ban.⁷³ Upon the municipal exercise of that option, plaintiff bar owner brought an equal protection challenge to the...