Local Government Law - R. Perry Sentell, Jr.

• Publication year: 2006

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

In the early 1950's, condemnation was rare and political suicide. A popular limited access road was being delayed by a farmer. When the State survey crew showed up, the farmer was standing at a fence with his shotgun. He never moved, but the survey crew would not go beyond the fence.

After the Attorney General, District Attorney, and Sheriff failed, the assignment devolved to the County Attorney. I walked up to the fence. "John, we have known each other a long time." "You take one step further," replied the farmer, "and we will not know each other for a longer time."¹

The more things change in the ethereal realms of local government law, the more they remain the same.

I. Municipalities

A. Officers and Employees

The wheels of local government go around, but they are propelled by its officers and employees—inevitably, conflicts arise in the ranks. Representing a considerable stand-off between the municipal mayor and members of the council, Griffin v. City Council ofMilledgeville² focused upon a local statute³ changing the municipality's form of government.⁴ Objecting to his conversion from "strong" to "weak" mayor,⁵ the plaintiff challenged the statute's validity on assorted grounds.⁶ Affirming the trial court's rejection of those challenges, the supreme court perused the charter amendment from several perspectives.⁷ initially, the court refuted the mayor's contention that his office had been unlawfully abolished.⁸ "The office still involves the performance of numerous duties,"⁹ the court observed, and "the mayor . . . remains mayor, albeit a 'weak' mayor rather than a 'strong mayor."¹⁰ Additionally, the court rejected the mayor's equal-protection arguments of personal vindictive-ness and of racial discrimination.¹¹ No evidence rebutted the council's stated purpose of accomplishing a more efficient city government,¹² the court reasoned, nor had the plaintiff's proofraised "even an inference . . . [of] further[ing] racial discrimination."¹³

Terminated municipal employees sought solace during the survey period from the court of appeals, with mixed results. In Reid v. City of Albany,¹⁴ a former at-will employee protested his dismissal from the engineering department, alleging "he was terminated in retaliation for reporting his superior's wrongful use of city resources."¹⁵ "Under Georgia law," affirmed the court, "at-will employees may be terminated for any or no reason, and they generally cannot recover for wrongful discharge."¹⁶ Contrarily, the "cause" or "reason" assumed pivotal significance in City of Atlanta v. Harper,¹⁷ the court's review of an internal auditor's termination.¹⁸ Emphasizing the plaintiff's civil service status, as well as the city's reliance upon its "reduction in force" ordinance,¹⁹ the court found sufficient evidence supporting the civil service board's reinstatement.²⁰ On the one hand, the ordinance authorized termination only "because of lack of work, shortage of funds or reorganization."²¹ On the other hand, "there was direct and indirect evidence that [the plaintiff s] severance had resulted from unacceptable work performance-a circumstance expressly outside the purview of [the ordinance]."²²

Matters of municipal pensions and retirements concluded the litigated concerns of the survey period. In City of Atlanta v. Southern States Police Benevolent Ass'n of Georgia,²³ the court of appeals interpreted local statutes and charter provisions involving the independence of three city pension fund organizations.²⁴ More specifically, the court held, the boards of trustees for those funds possessed "broad authority to appoint a third-party administrator to perform benefit administration services," independent of the municipality itself.²⁵ Additionally, those same provisions empowered "the pension boards to independently hire outside legal counsel to advise them on their authority and duties without input or interference from the City . . . Law Department."²⁶ Accordingly, the court affirmed the trial court's issuance of a declaratory judgment and permanent injunction against the municipality.²⁷

Finally, in Westmoreland v. Westmoreland,²⁸ the supreme court drew upon equity's historic power to change an employee's retirement beneficiary.²⁹ The court sketched the prerequisites: the employee intended to change beneficiaries for all his benefits; he requested forms for doing so; and he completed all forms given him.³⁰ "The only reason he did not complete the form relating to the [retirement] plan at issue is because the human resources employee mistakenly never gave it to him."³¹ Affirming the trial court's direction that benefits be paid to the intended beneficiary,³² the court explained that "'[e]quity considers that done which ought to be done and directs its relief accordingly. "³³

B. Powers

The local government operates in sundry capacities and in response to limitless confrontations—it exercises whatever powers the contest calls to hand. The municipality's powers as a landlord soared to fruition in S.S. Air, Inc. v. City of Vidalia,³⁴ the city's dispossessory action to remove an airplane hangar from its property at the defendants expense. Reviewing evidence that the defendants had maintained the hangar on city property rent-free since 2001,³⁵ the court of appeals determined that a landlord-tenant relationship existed between the parties.³⁶ Moreover, the court reasoned, "[e]vidence supports the conclusion that, despite its size, the hangar was a trade fixture."³⁷ As tenants at will, the defendants were "obligated to remove their trade fixture ... at their own expense upon the request of the City."³⁸

C. Regulation

In the regulatory maze that is modern-day government, controversy looms perpetual.³⁹ On the whole, municipal regulatory power fared rather poorly in the appellate courts over the review period. In Folsom

v. City of Jasper,⁴⁰ the supreme court sustained a challenge to the validity of a city ordinance prohibiting "advertisement[s] of any kind advertising alcoholic beverages for sale or advertising the brand names or prices of alcoholic beverages."⁴¹ Initially, the court reasoned, "[t]he City has provided no evidence whatsoever that the ban on alcohol advertising will 'significantly advance the [City's] interest in promoting temperance. "⁴² Additionally, the municipality had failed to show the measure's restriction on speech to be "no more extensive than neces-sary."⁴³ Finally, the court condemned the city's license-revocation power should the council determine "that the licensee is guilty of 'any violation of federal or state law. "⁴⁴ Finding "no ascertainable standards" limiting the council's decision, the court held that "absolute discretion in both the determination of the occurrence of the violation as well as the relevance of the violation does not comport" with due process.⁴⁵

It was the court of appeals's interpretation of the regulation that worked adversely to municipal interests in Northside Corp. v. City of Atlanta.⁴⁶ There, an ordinance⁴⁷ prohibited expanding a "location" licensed as a package store and situated within a stated distance of a residential district.⁴⁸ Under that prohibition, the city denied the plaintiff a building permit to add floor space to his store thus situated, on grounds that enlarging the store would expand the "location."⁴⁹ Rejecting that position and advancing an approach of "strict construc-tion,"⁵⁰ the court held that the ordinance's reference to "location" pertained to "the entire parcel of land, which would not expand with the [store's] addition."⁵¹ This interpretation mandated reversal of the trial judge's permit denial.⁵²

It was the issuance of a permit that claimed the supreme court's attention in McKee v. City of Geneva,⁵³ a permit concerning waste management. The plaintiff sought to mandamus the city's verification that his proposed waste handling facility was, as required by statute,⁵⁴ consistent with the municipal solid waste management plan ("SW-MP").⁵⁵ Observing that the city's "regional SWMP," adopted in 1993, did not preclude the facility, the court found the requisite "consisten-cy."⁵⁶ The court thus rejected the trial court's actions in determining the SWMP to incorporate by reference a 1995 multi-jurisdictional comprehensive plan ("CP"):⁵⁷ "[T]he CP was not even in existence when the City contends that it was incorporated by reference into the SWMP."⁵⁸ Because "[the plaintiff's] facility would be located on a site which is not identified as unsuitable in the unamended 1993 SWMP, it does comply with that plan," and the trial court erred in refusing mandamus.⁵⁹

The municipality found itself the subject of regulation in City of Rincon v. Couch,⁶⁰ as it appealed from a denial of its application to the State Environmental Protection Division ("EPD") for an additional groundwater withdrawal permit. Reviewing the proceeding's extensive background,⁶¹ and numerous objections to the administrative law judge's decision,⁶² the court of appeals rejected the municipality's position.⁶³ Primarily, the city disputed the EPD's consideration of whether an alternative water source was available-thereby requiring the city to purchase water from the county at greater expense than it would incur in drawing water from its own well.⁶⁴ Even so, the court reasoned, "the EPD is entitled to weigh [the city's] costs against other public policy concerns that must be taken into account . . ., such as the need for conservation of limited water resources."⁶⁵

D. Openness

Because "openness in government" constitutes a concept more heralded than practiced, most survey periods entertain an instance of litigation concerning the issue.⁶⁶ Georgia's Open Records Act authorizes an award of attorney fees and litigation expenses should a party involved in an action for enforcement act "without substantial justification."⁶⁷ The plaintiff in Everett v. Rast⁶⁸ sought to invoke that authorization regarding his efforts to...