Local Government Law - R. Perry Sentell, Jr.
| Publication year | 2007 |
Local Government Lawby R. Perry Sentell, Jr.*
This particular [City Commission] meeting had drawn on for quite some time, until it was getting fairly late. We heard someone knocking very rapidly on the plate glass window. As I turned around, I observed an elderly woman, the wife of the Mayor. The Mayor appeared to ignore his wife and continued to conduct the meeting. Not getting any response from her knocking, the wife then walked into the building, grabbed the Mayor by the arm, and scolded him that it was ridiculous that the City Commission was meeting so late at night. "You," she informed the Mayor, "are going home." With that, the wife intensified her hold on the Mayor's shirt sleeve, dragged him out of the building, and took him home. This obviously broke up the City Commission meeting, and we all left for the night.1
Oh, for more sine die adjournments in the nocturnal administration of local government!
I. Municipalities
A. Officers and Employees
The period's litigation concerning municipal officers and employees reflected intriguing variety on two fronts: the range of benefits claimed by the plaintiffs and the legal theories under which they proceeded. Mandamus2 and estoppel3 served as the theories of choice in Dukes v. Board of Trustees,4 a retired police officer's challenge to his pension reduction.5 Tracing the pension board's actions in originally approving—then reducing—the plaintiff's retirement amount,6 a narrowly divided court held estoppel ineffectual: because the plaintiff failed to satisfy a pension act requirement for crediting prior service,7 "his entitlement . . . never vested."8 The court distinguished a prior decision9 by reasoning that "[w]hen the pension decision goes to entitlement, as opposed to calculation of benefits, the . . . estoppel doctrine does not apply."10 Accordingly, the plaintiff's petition to mandamus reinstatement of his prior retirement amount suffered adamant rejection.11
Absence of a "vested right" also imperiled the retired employees' claim to a cost-free Preferred Provider Organization ("PPO") form of health insurance in Unified Government of Athens-Clarke County v. McCrary.12 Observing that the plaintiffs had paid for their PPO coverage while employed,13 the supreme court could find no "impairment of contract" by the local government in offering only HMO cost-free insurance upon retirement.14 "Requiring [the plaintiffs] to elect the HMO option if they wish to receive cost-free coverage does not violate the impairment clause of the Georgia Constitution, since they never had a vested right to maintain in retirement the precise health-care delivery system by which they received their coverage while employed."15
A salary difference claim comprised the employee's complaint in Williams v. City of Atlanta,16 consisting of actions against the municipality for both mandamus and quantum meruit.17 As for the former, the supreme court discounted the plaintiff's reliance upon a prior grievance decision by the city's Bureau of Labor Relations which simply declared no bureau objections to city rectification of the problem.18 That "decision," the court emphasized, established no "clear legal right" necessary for a mandamus.19 Yet another decision—this one by the trial court—doomed the plaintiff's claim for quantum meruit: "[T]he trial court's finding that [the plaintiff] had a contract with the city . . . precludes [the plaintiff's] action for quantum meruit."20
Finally, Merry v. Williams21 presented an intriguing issue of local government legislative process22 —specifically, how abstentions by the consolidated government commissioners were to be counted in determining vote results.23 Initially, the court looked to the government's charter requirement that at least six members vote in the affirmative for commission action.24 That mandate "'clearly prohibits counting an abstention or refusal to vote as affirmative action.'"25 Additionally, in formulating its rules of procedure, the commission had "rejected a rule requiring that abstentions be counted as negative votes."26 Accordingly, the court concluded, "[A]bstentions by commissioners must not be counted as either affirmative or negative votes."27
B. Elections
Two city council candidates challenged election results during the survey period, receiving contrasting dispositions by the supreme court.28 Brodie v. Champion29 featured an unsuccessful (by five votes) candidate's constitutional attack upon a state statute30 prohibiting the counting of write-in ballots for ineligible candidates.31 Affording the complaint fairly short shrift, the court noted the constitution's delegation of legislative power to provide for the eligibility of write-in candidates.32 "The legislature properly exercised [that] power," the court asserted, "when it limited the counting of write-in votes to votes cast for qualified write-in candidates."33
The unsuccessful (by one vote) candidate in Allen v. Yost34 alleged votes by ineligible voters, only to suffer the trial judge's dismissal for failing to challenge those votes prior to the election.35 Conceding the statutory provision for a pre-election challenge of voter qualifications,36 the supreme court denied that statute to constitute "the only procedure available to a candidate who wishes to challenge the results of an election."37 Other statutes, the court delineated, plainly "permit[] a post-election challenge" in the manner sought by the plaintiff.38 Accordingly, "[T]here is simply no statutory provision or case law to support the proposition that a candidate must challenge the illegal votes prior to the election or else be foreclosed from bringing an election contest."39 Indeed, the court wryly concluded, "Election results can only be obtained after the election is held."40
C. Powers
A municipality's construction of a land application system ("LAS") brought City of Cairo v. Hightower Consulting Engineers, Inc.41 before the Georgia Court of Appeals. The city claimed the defendant's negligent misrepresentation in plans submitted for the system and economic loss from the system's 1998 malfunction.42 Responding to this 2001 lawsuit, the defendant argued the four-year statute of limitation's commencement in 1994 when the city received the defendant's report on the land's suitability for the system.43 Rejecting the defendant's position, the court viewed "[t]he evidence [to] show that not until after it activated its LAS, in March 1998, did the City incur pecuniary losses due to misrepresentations in [the defendant's] report."44 Thus, "The City suffered pecuniary losses with certainty at the earliest in March 1998, when its LAS was activated and immediately malfunctioned."45 Having filed its suit "well within four years of that time," the court concluded, "the [city's] negligent misrepresentation claim was not time-barred."46
D. Regulation
"Regulation" litigation populated the period under scrutiny with a standoff between governmental regulatory efforts and constitutional freedoms.47 In the main, the freedoms prevailed. In Fulton County v. City of Atlanta,48 the county challenged the city's solid waste disposal efforts49 by brandishing a state statute prohibiting the transportation of waste to landfills across county lines unless authorized by the originating and receiving counties.50 Receptive to the city's defensive attack, the Georgia Supreme Court relied squarely upon an admonition by the United States Supreme Court:51 "'[O]ur prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself.'"52 The statute "gives Georgia counties the power to veto the importation of solid waste," the court reasoned, and "[t]his it cannot do."53
Commerce Clause protection likewise surmounted municipal taxicab regulation. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta54 featured an ordinance requiring a Certificate of Public Necessity and Convenience ("CPNC") for taxi operators and owners and that the holder be a Georgia resident for at least one year.55 In appraising the challengers' Commerce Clause attack, a majority of the supreme court carefully delineated between taxicab operators and owners.56 As for the former, "a residency requirement may be justified on the grounds that it enhances public safety and fosters more efficient service."57 Regarding those engaged in the taxi business, however, the city advanced no "legitimate local purpose served by the residency requirement,"58 thus rendering the measure one of "'economic protectionism which creates an artificial barrier to commerce and violates the Commerce Clause.'"59
Shifting from commerce to expression, State v. Fielden60 focused upon a state statute proscribing the knowing or reckless commission of "'any act which may reasonably be expected to prevent or disrupt a lawful meeting, gathering, or procession.'"61 The challengers were two defendants who had stood silently as a show of support for another citizen refusing to yield the podium at a municipal council meeting.62 In review, a majority of the supreme court distinguished between the defects of vagueness and overbreadth.63 As for the former, the statute provided "a sufficiently definite warning to a person of ordinary intelligence of the prohibited conduct" and appeared "clear and unambiguous."64 Conversely, the measure failed a valid balance between the fundamental right of assemblage and that of free speech, thus violating the First Amendment proscription of overbroadness.65 Under the statute's reach, the court cautioned,
Any recklessly or knowingly committed act that could reasonably be expected to prevent or disrupt a lawful meeting, gathering or procession is a misdemeanor, regardless where it is committed, how trivial
the act, its impact, or the intent of the actor other than the intent to commit...
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