Local Government Law - R. Perry Sentell, Jr.

• Publication year: 1994

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

In a year when attention focused upon the propriety of actions taken in high places, local governments naturally came in for their share of scrutiny. For both municipalities and counties, the pace was fervid. Their actions were the actions of interest to courts, legislatures, and people. This survey records the highlights of that preoccupation as it was manifested in law—the law of local government.

I. Municipalities

A. Power

The "power" focus of this survey period centered upon the municipal effort to collect franchise fees from electric membership corporations. That effort, in two distinctive contexts, proved notably unsuccessful. Initially, the court of appeals, in City of Calhoun v. North Georgia Electric Membership Corp.,¹ tracked an earlier treatment of the nature of a "franchise":² "[T]his court held that a franchise is a contract creating property rights, that a city could not create such a contractual relationship by its unilateral act; and that in the absence of an agreement between the parties, a city could not collect a franchise fee from the EMC."³ A municipal ordinance purporting to authorize the fee counted for naught: "At every opportunity the EMC has rejected the proposed franchise and has done nothing inconsistent with that position."⁴ The municipality was thus "not entitled to a franchise fee,"⁵ the court concluded, and "the trial court did not err in so finding."⁶

The court's analysis in the second case, Athens-Clarke County v. Walton Electric Membership Corp. ,⁷ went to a markedly distinguishable, and far more unique, issue. It derived from a city-county consolidated government's attempt to impose franchise fees upon an EMC operating only in the previously unincorporated county area.⁸ In evaluating that attempt, the court examined the nature of the governmental consolidation and viewed it to result in "a hybrid" of the former county and municipality.⁹ The unified charter created "a new political entity,"¹⁰ but did not attempt to abolish the former county.¹¹ The entity created, the court asserted, "is not a municipality within the meaning of the Territorial Act which is authorized to charge franchise fees."¹²

B. Officers and Employees

The legal issues unfolding around municipal officers and employees touched upon successive phases of a governmental career. At the threshold, City of Atlanta v. Jackson¹³ featured alleged illegality in obtaining the position itself. Specifically, the Georgia Supreme Court pondered, would the officer's alleged fraud in becoming municipal Aviation Commissioner affect calculation of his pension benefits?¹⁴ Responding in the negative, the court fastened upon what it perceived as the "spirit" of the municipal code, a code explicitly ruling "reason for termination" irrelevant to pension rights.¹⁵ From that declaration, the court reached the following conclusion: "A finding . . . that an act of an individual before becoming employed by the City exposes him to the risk of forfeiting pension benefits, when an act taken while employed by the City does not, would contradict the spirit and terms of the city code."¹⁶ That conclusion found additional support in statutes establishing "a standard for the forfeiture of pension benefits based on an employee's wrongful acts."¹⁷

Concerned with the opposite pole on the employment spectrum, Martin v. Laporte¹⁸ confronted the court of appeals with termination and leave of absence.¹⁹ The court considered a municipal employee's appeal from the civil service board's conversion of outright termination to a one-year leave of absence without pay.²⁰ Although the employee testified that she was able to work during the period of the leave, the court found "uncontradicted evidence that shortly before her termination she repeatedly sought a leave of absence through a minister and her lawyer and that the stress of her job was an important factor in her illness."²¹ Consequently, the court sustained the board's actions.²²

Two contests of the survey period revolved around the employee's right to workers' compensation benefits.²³ The court characterized the record in City of Marietta v. Kirby²⁴ as revealing that a longtime firefighter sustained a work injury to his cervical spine in 1982, received workers' compensation, returned to normal duties, and had suffered neck and back pain more or less continuously since that time.²⁵ On that record, the court affirmed the compensation board's determination that the employee's medical claims for an episode in 1989²⁶ fit the category of "change in condition" rather than "new accident. []"²⁷ As such, the court affirmed, the claims related back to the 1982 injury and remained the responsibility of the municipality's then compensation carrier.²⁸

The compensation claim failed in City of Atlanta v. Spearman,²⁹ an action for injuries to an employee who fell in the parking lot on her way to work.³⁰ Emphasizing coverage to require that the employer own or maintain the lot, the court carefully reviewed the evidence.³¹ That evidence revealed that the municipality leased 100 spaces in the lot for its employees, allotted those spaces to certain employees, and deducted payment for the space from each employee's monthly check.³² The municipality's allocation of spaces, the court held, did not amount to "operating or controlling" the lot; and the accident, the court concluded, thus did not "arise out of and in the course of plaintiff's employment.³³

C. Recall

Both state and local government officials operate under the historic potentials of the recall proceeding.³⁴ The supreme court plumbed those potentials for municipal officials on two occasions during the period under scrutiny.³⁵ Collins v. Morris³⁶ projected as an issue of constitutionality the recall statute's provision for judicial approval.³⁷ Although mandating approval of the recall application's grounds and factual support, there could be no judicial hearing upon the truth or falsity of those grounds.³⁸ That limitation, challengers maintained, operated to deprive elected officials of due process.³⁹ The supreme court responded with the observation that "recall is a concept which is predicated upon the power of the electorate to remove its elected officials."⁴⁰ That concept was served, the court reasoned, by "a statute which provides that the electorate, rather than the judiciary, shall determine the ultimate truth or falsity of the allegations of misconduct . . . ."⁴¹ The court thus held the statute adequate in its provision of due process to the public official.⁴²

As for the sufficiency of grounds and supporting facts, Davis v. Shavers⁴³ featured a recall application which alleged acts of '"malfeas- ance' and 'misconduct'" on the part of a municipal councilman.⁴⁴ Supporting facts included the councilman's illegal passage of an amendment by resolution rather than by ordinance, his voting to pay another councilman two years salary in advance, and his voting to give the city manager a raise in a closed meeting which should have been open.⁴⁵ Holding the trial judge's finding of insufficiency not "clearly erroneous,"⁴⁶ the court reasoned as follows: Although the recall advocates "maintain in their application that all three factual allegations are violations of. . . the Code of Ethics for Government Service,⁴⁷ it is only by reference to their brief that one gains notice of why these alleged sets of facts may constitute acts of malfeasance or misconduct in office."⁴⁸

D. Regulation

Local government regulation of conduct must avoid undue encroachment upon constitutionally protected freedoms.⁴⁹ The face-off is particularly acute when it involves the freedoms of expression protected by the First Amendment. The Georgia Supreme Court confronted that face-off in resolving Gravely v. Bacon,⁵⁰ a challenge to the validity of a municipal ordinance prohibiting the sale of alcohol at erotic dance establishments.⁵¹ The ordinance denned covered establishments as featuring live performances emphasizing "specified sexual activities or specified anatomical areas."⁵² The challenge arose upon the municipality's denial of a liquor license to a nude dancing establishment.⁵³

The court approached the controversy by acknowledging nude dancing to be "protected expression,"⁵⁴ and sketching a three-pronged test for balancing regulation and infringement.⁵⁵ The challenger's attack, the court asserted, engaged the third prong: "the incidental restriction of speech [can be] no greater than is essential to further the government interest."⁵⁶ With test in place, the court interpreted the ordinance "as limited to adult dance entertainment businesses that studies have shown produce undesirable secondary effects."⁵⁷ As narrowly construed, the ordinance did not prohibit the live performance of plays, operas, or ballets, nor private conduct or public entertainment not involving live performances.⁵⁸ Accordingly, the court concluded, "[the] . . . ordinance's incidental restriction on the protected expression of nude dancing at adult dance establishments is no greater than is essential to protect the government's interest in preventing unwanted secondary effects."⁵⁹

E. Property

In Bridges v. City of Moultrie,⁶⁰ the municipality's action for possession of real property, against a lessee of that property, bested two defensive objections.⁶¹ First, the lessee could not dispute his landlord's title, asserted the court of appeals, when the lessee was in possession and recognizing the title he sought to dispute.⁶² Second, the lessee's claim of a railroad's (former owner) abandonment of the railway line was not a proper defense to an action for possession of property upon which the depot had been located.⁶³ "The lease covers the parcel of land, adjacent to the line on which the former depot is situated."⁶⁴ Accordingly, the court affirmed a summary judgment for the municipality, favoring issuance of a writ of possession.⁶⁵

F. Finances

Municipal public...