SIMONDS THREATENS TO SUE POST COMMISSIONERS OVER CHARTER CHANGE

COURTS HAVE ALREADY RULED ON ISSUE

Chairman Bill Simonds of the Fannin County Board of Commissioners has threatened to sue the two Post Commissioners, Earl Johnson and Larry Joe Sosebee, over their proposed change to the local legislation (sometimes referred to as the county charter) which would give the entire board rather than Simonds the right to hire and fire department heads.

Simonds will likely lose the lawsuit.

The 1983 Georgia Constitution gave home rule authority to counties “to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto” except for actions affecting the “form of the county governing authority.”

Although no one knows exactly what Simond's contentions will be if he actually files a law suit, it is public knowledge that he believes that taking away his authority to hire and fire department heads amounts to a change in the form of the county’s “governing authority” and is, therefore, impermissible under Georgia's Constitution.

The only problem is that the Supreme Court of Georgia already ruled on that issue. In Krieger v. Walton County Board of Commissioners (1999), the chairman of the Walton County Board of Commissioners challenged a proposed amendment to the Walton County local legislation that gave the board, rather than the chair person, authority to hire and fire county personnel. Citing previous opinions, the court held that the board’s action was permissible because it did not “affect the office of the chairperson or the form of government in violation of the constitution or state laws.”

There are actually two Krieger opinions. The 1998 opinion involved the Walton Board of Commissioners’ attempt to transfer hiring and firing authority from the chairman to the board by resolution. The court held that such action could not be done by resolution, but could be done by amending the county’s local legislation. The following language from that opinion is instructive:

We have previously held that a county does not change its form of government by enacting an ordinance that diminishes the power of the chairperson and increases the power of the board in employing and discharging the county’s non-merit system employees. Subsequently, we upheld the right of a board to amend a local act to give the board, rather than the chairperson, authority to hire, supervise, and discharge county personnel.

The 1999 Krieger decision certainly appears to dispose of any argument that Fannin County cannot change its local legislation to give the post commissioners a say in hiring and firing department heads. It will be interesting to see what Simond's alleges in his lawsuit should he proceed with one.

Both opinions can be read by clicking on the tab on the home page.