Local Government Law - R. Perry Sentell, Jr.

• Jurisdiction: United States,Federal
• Publication year: 1999
• Citation: Vol. 51 No. 1

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

The City Attorney served (in those days) simultaneously as Judge of the Recorder's Court. On convening that court one Monday morning, he was shocked to see one of the community's most prominent citizens before him, charged with "drunk and disorderly."

I inquired as to the type of plea he wished to enter. Evidently having heard of "nolo contendere" but not remembering the exact nature or pronunciation of the plea, the citizen responded: "I would like to plead low profile."¹

The "law" of local government, both decisional and statutory, frequently fosters a similar sentiment.

I. Municipalities

A. Annexation

Georgia municipal annexations are accomplished through two basic methods: (a) the General Assembly's enactment of a local annexation statute; and (b) the municipality's adoption of an annexation ordinance.²

The latter method, as authorized by general statutes, encompasses three systems, each of which operates upon an expression of (some degree of) the annexed subjects' consent.³ Whether a municipality can contract away its annexation power under the second method remained, prior to 1998, an unresolved issue.

City of Centerville v. City of Warner Robins⁴ featured a 1995 "consent order"⁵ describing exclusive water and sewer service areas of two neighboring municipalities.⁶ The order also purported to estop each city from considering petitions or requests for annexation of territory within the other's service area.⁷ Sustaining enforcement of that order,⁸ a majority of the Georgia Supreme Court denied that the trial court usurped "for itself control over the legislative function of annexation."⁹ Nothing prevented the two municipalities from covenanting not to exercise their annexation authority,¹⁰ the court reasoned, and "the superior court merely enforced that agreement."¹¹

B. Officers and Employees

Compensation, compensation incentives, and retirement benefits all featured prominently in litigation emanating from municipal officers and employees during the survey period. In Angel v. Hart,¹² the court of appeals rejected complaints by three police officers who, when returned to regular patrol, lost the ten percent pay increases they enjoyed while working in the force's special investigation unit.¹³ Evidence indicated "that the temporary nature of the pay increases was understood or at least implied,"¹⁴ and the reductions thus violated no "charter or ordinance allowing demotions only for cause."¹⁵ Plaintiffs' substantive due process position fared no better: "'[A]n employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component.'"¹⁶

The compensation incentive ordinance featured in Columbus Consolidated Government v. Schmidt¹⁷ rewarded employees who attained a college degree.¹⁸ Affording the ordinance a "plain meaning" construction,¹⁹ the supreme court limited its application "only to employees who attained their degree after the ordinance's effective date."²⁰

The court likewise declared "unambiguous" the municipal retirement ordinance of Strickland v. City of Albany,²¹ an ordinance distinguishing between the spouses of retired and non-retired city employees.²² The surviving spouse of a retired employee could continue to receive benefits upon remarriage, an option not available for the surviving spouses of non-retired employees.²³ Rejecting a claim of unconstitutional classification, the court asserted that plaintiff knew the terms of the retirement plan before her remarriage and suffered no due process violation.²⁴ As for equal protection, the court found "a rational basis for affording retired City employees and their spouses additional or more attractive pension options than non-retired City employees and their spouses."²⁵

C. Legislation

It is a legislative adage that municipal "laws" in conflict with state "laws" are generally ineffective. Affording context for that adage, Allen v. City of Atlanta²⁶ focused upon the following "work rule" of a municipal police department: "A firearm shall not be discharged if the lives of innocent persons may be in danger."²⁷ Contrasting that rule with the state "self defense"²⁸ and "arrest"²⁹ statutes, the court of appeals perceived an impasse.³⁰ Neither statute "automatically prohibits the discharge of a firearm if the lives of innocent people may be in danger;"³¹ the municipal rule, however, "creates such a mandatory prohibition."³² Under the statutes, "the presence of a bystander at a crime or arrest scene does not override all other considerations;"³³ contrarily, the rule's "mandatory language . . . would lead to such a result."³⁴ Accordingly, the court declared the department rule in conflict with state statutes and invalidated a police officer's suspension for its violation.³⁵

D. Elections

The survey period presented two failed efforts at invalidating municipal elections. Hendry v. Smith³⁶ featured the contest of a mayor's election, the challenger charging the incumbent with vote solicitation at the polling place.³⁷ The supreme court found no evidence that the mayor's conduct in and around city hall violated election statutes.³⁸ Additionally, none of the incumbent's actions "in any way placed the result of the election in doubt."³⁹

The court reached the same result in Hunt v. Crawford,⁴⁰ a challenge by a candidate who lost a city council election by a margin of ten votes. Although conceding misconduct on the part of the winner's poll watcher in checking lists of voters,⁴¹ the court carefully reviewed the evidence.⁴² "[T]here is no evidence in the record that any more than seven votes could have been affected by the alleged misconduct, and thus no evidence to demonstrate that the alleged misconduct placed in doubt the result of the election."⁴³

E. Contracts

The period's most striking municipal contract controversy arose in a case previously observed from another perspective:⁴⁴ City of Center-ville v. City of Warner Robins.⁴⁵ The alleged contract appeared in what the Georgia Supreme Court variously termed both a "consent order"⁴⁶ and a "consent judgment"⁴⁷ —a superior court's 1995 order concerning two neighboring municipalities.⁴⁸ In that order, the two governments purported to agree upon their exclusive water and sewer service areas;⁴⁹ each municipality also agreed not to annex territory within the other's area.⁵⁰ Some three years later, following disagreement between the two cities, the superior court permanently enjoined defendant from providing water and sewer service,⁵¹ and from annexing territory,⁵² in plaintiff's exclusive service area.

Upon defendant municipality's appeal to the supreme court, a majority of the justices found no obstacle to the cities' annexation covenant,⁵³ nor to its enforcement by the superior court.⁵⁴ It was left to a two-justice dissenting opinion to emphasize the distinctive legal realm occupied by municipal contracts.⁵⁵ Many of those contracts fall subject to historic statutory mandate: "One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government."⁵⁶ This condemnation fully applies to contracts as well as ordinances; it covers governmental or legislative endeavors; it reaches covenants between local governments; its violation yields an ultra vires nullity; that nullity is subject to neither estoppel nor ratification.⁵⁷

Putting principles to facts,⁵⁸ the dissent declared it "fundamental that a city council cannot deprive or restrict itself or its successors in the exercise of its annexation power by entering into a contract or agreement purporting to limit its authority to annex."⁵⁹ Accordingly, the dissent deemed the consent order "ultra vires," "null," and "void,"⁶⁰ and held defendant municipality free to assert "the invalidity, ab initio, of its alleged agreement not to annex."⁶¹

Georgia holds historic commitment to its statutory (and common law) invalidation of a local government's attempt to bind itself in the future performance of its governmental functions. Does that commitment nullify a municipality's effort to bind itself in the future performance of its governmental function of annexation? In City of Centerville v. City of Warner Robins,⁶² two dissenting justices crafted a serious analysis of nullification. In failing even to acknowledge—much less address—that analysis, a majority of the Georgia Supreme Court displayed an unbecoming aloofness to an issue of crucial significance in local government law.

F. Powers

Municipal power challenges arose in two governmental contexts, and both challenges proved successful. Monticello, Ltd. v. City of Atlanta⁶³ featured a municipal assessment of solid waste disposal fees, on a per unit basis, against unoccupied and uninhabitable apartments.⁶⁴ The court of appeals reviewed the city's charter by distinguishing between "taxes" and "fees,"⁶⁵ by adopting an "in pari materia" interpretation,⁶⁶ by subjugating home rule ordinances to inconsistent charter provisions,⁶⁷ and by strictly construing municipal power grants.⁶⁸ Clearly, the material charter authorization "contemplates assessment of a fee only against occupied premises,"⁶⁹ and not "individual apartment units which are neither occupied nor habitable."⁷⁰ Finally, the court rejected the city's justification of mere availability,⁷¹ "an inchoate opportunity to take advantage of the service at some future date."⁷²

In City of Duluth v. Riverbrooke Properties, Inc.,⁷³ the court thwarted a municipal requirement that a developer file an "as built" survey for a subdivision lake which the city characterized as a surface water runoff detention facility.⁷⁴ Surveying the controversy's "complex facts," the court held defendant's water detention facilities in compliance with regulations⁷⁵ effective when its plans were approved.⁷⁶ Additionally, the court invoked the doctrine of municipal estoppel:⁷⁷ The city delegated discretion to its...